INTEREST AGAIN. Editor of the Albany Law Journal: In reply to my query published on page 300 of your issue of April 11, 1885, relative to the correct legal method of computing time between two given dates for the purpose of subsequently computing interest, the two answers, viz., page 319, April 18, and that of Mr. Fontes, page 340, April 25, do not solve the problem. Both cite the Revised Statutes, pt. 2, ch. 4, tit. 3, $$ 9, 10. But I want to know how to apply the above citation and above all the authorities, or even one authority on the subject. As my theory resulted from an attempt to calculate an actual payment of interest on over-due notes, I sought to ascertain the authorized method for my own protection. There are three ways of computing, to mention no more, that I beg to instance to make my query clear. The question is: What time has elapsed between October 25, 1884, October 29, 1884, October 31, 1884, respectively, and March 19, 1885? By method 1. The actual number of days is 145. Divide this by 30, and the result is 4 months and 25 days for the first note; 4 months and 21 days for the second; 4 months and 19 days for the third. By method 2. Calling October the tenth month, and March the third month, and subtracting as below, we get: 1885. 1884. 3-19 10-25 4-24 This gives 4 months and 24 days, 4 months and 20 days, 4 months and 18 days for the three notes respectively. By method 3. From October 25 to November 25 is one month; to December 25, two; to January 25, three; to February 25, four; leaving 22 days to March 19. This gives 4 months and 29 days, 4 months and 19 days, 4 months and 19 days for the three notes respectively. Which of the three methods is authorized, and what authority can be cited? Although I seek information, I would venture the following statement: I cannot see that the above citation authorizes the third method. I can see authority however for the other two, but of these two the first seems to me wrong, while the second, in my opinion, will meet every possible emergency. Thanking you for this space, I am, INQUIRER. NEW BOOKS AND NEW EDITIONS. FARMER'S HISTORY OF DETROIT AND MICHIGAN. The History of Detroit and Michigan, or the Metropolis illustrated. A chronological cyclopædia of the past and present. Including a full record of territorial days in Michigan and the annals of Wayne county. By Silas Farmer, Historiographer. Detroit: Silas Farmer & Co. 1884. This is a very elaborate and copiously illustrated work, which must be of great interest to the inhabitants of Michigan. It is in plan and execution about on a level with the many local histories which have been issued during the last quarter of a century. While much of it is of no general interest, there are chapters on the legislatures, laws and courts, which are undoubtedly valuable to Michigan lawyers. One of the most valuable characteristics of this history is the large number of cuts of ancient buildings, perpetuating the appearance of old localities which easily fade from the recollection. Every lawyer has experienced the difficulty of proving the character of the occupation of land after the lapse of comparatively a few years. The book is handsomely printed, and we are glad to see that it has none of the portraits of self-made men which usually disfigure such works. We would whisper to Mr. Farmer that Shakespeare never could have said "native here and to the manor born." What he said was manner." CAREYS' FORMS AND PRECEDENTS. Forms and Precedents, embracing the following subjects: Pleading and Practice in courts of equity, admiralty and common law; proceedings in orphans' courts; statutory proceedings, patents, trade-marks, and copyrights; contracts and conveyancing; wills, etc. Compiled and edited by James Carey, Jr., and Francis King Carey. Baltimore: M. Curlander. 1885. Pp. x, 1084. This seems to be a very complete collection, but many of the forms might well be boiled down and modernized. A compiler of forms ought to find something newer than "made oath on the Holy Evangels of Almighty God." The book is too coarsely printed; it ought to have been much less bulky. MURFREE'S OFFICIAL BONDS. A Treatise on the Law of Official Bonds and other penal bonds. By W. L. Murfree, Sr. St. Louis: Review Publishing Co. 1885. Pp. viii, 646. The practitioner will here find all the learning on this subordinate subject, conveniently arranged, and concisely expressed. The book is very handsomely printed. The author's industry has enabled him to cite cases filling a double-columned table of thirtysix pages. BUSWELL ON INSANITY. The Law of Insanity in its application to the civil rights and capacities and criminal responsibility of the citizen. By Henry F. Buswell. Boston: Little, Brown & Co. 1885. Pp. xxxviii, 595. A cursory examination leads us to think well of this work. It seems very comprehensive, and is a model for text-book writers in one respect-it wastes no words. The subject well deserves independent treatment such as it receives from Mr. Lawson and the present writer. THE COURT OF APPEALS DECISIONS. HE following decisions were handed down Tuesday, April 28, 1885: Judgment modified, and as modified affirmed, with out costs to either party in this court-Margaret C. Remington, respondent, v. William H. Walker, executor, etc., appellant.-Judgment reversed, new trial granted, costs to abide the event-Charles C. Motel, infant, etc., respondent, v. Sixth Avenue R. Co., appellant. Judgment affirmed, with costs-Edward J. McGeau, receiver, etc., appellant, v. Thomas Mackellar et al., respondents.-Order affirmed, with costs -Charles G. S. Baker, appellant, v. Jarvis S. Baker, respondent.-Order of General Term reversed, that of Special Term affirmed, with costs-Robert F. Little, receiver, etc., appellant, v. Theresa Lynch, respondent.Appeals dismissed, with costs-Bolton Hall et al., respondents, v. United States Reflector Co., appellant; Peter Rowe, sheriff, etc., appellant. Order modified and affirmed as to the appointment of a trustee only, with costs-In re petition of Edmund Waring and another. The Albany Law IN ALBANY, MAY 9, 1885. CURRENT TOPICS. N last week's Nation we find a long editorial on "The Lawyers and the Field Code." It is by no means so heavy as we expected. On the contrary it is in spots amusing. For example, it would be difficult to imagine any thing "cooler" than the following: "Since it is unquestionably the general opinion among lawyers that the adoption of the Field Code will, for a time at least, greatly increase litigation, the spirited resistance offered by the leaders of the profession to this measure cannot be explained by a reference to selfish motives." This is taking things for granted with a vengeance. The opposition say so, therefore so it is. Now we do not assert or believe that the opposition are actuated by mercenary motives, although we suspect they are selfish. Prejudice, laziness, obstinacy, pique, have a good deal to do with the matter. But the funniest thing the Nation says is this: "It is the product neither of the judges nor of the profession, and the profession will therefore refuse to take the responsibility of giving it a meaning until it has passed through the process of assimilation which they require. No Code, we may safely predict, will be successfully applied unless it first secures the general approbation of the bar." This is rank nonsense. We suspected until just now, that some member of the city bar association wrote these things for the Nation, but it is hard to believe that any lawyer ever wrote such whimsical opinions as this. Not one of the present Codes "secured the general approbation of the bar," yet they are universally acknowledged to be successful. But we find no fault with the Nation and Mr. Cowen. the former, unalleviated by Mr. Cowen's wit and good feeling, and the unsoundness of the latter, uninfected by the Nation's editorial cataract, are alike amusing, and enable us, we trust, to season the insipidity of Current Topics. But we find no argument sufficient to defeat the will of the people, and the repeated action of the Legislature. The nonsense of We We have read Mr. Pomeroy's and Mr. Miller's pamphlets against the Code, and do not find much startling or new. Mr. Pomeroy was a learned teacher and a good author, but he was a professor, and he was bounded by the spirit of the professor; he lacked the breadth of a man of affairs. would rather pin our faith to the opinion of Chief Justice Wallace. It is no disparagement to Mr. Miller to say that his opinions are not even so weighty as Mr. Pomeroy's, although if we could see general merit in his minute criticisms we would admit it. Our answer to all these criticisms is that it is hopeless to get a Code without fault or above criticism, and that this Code probably comes nearer VOL. 31- No. 19. - the mark than any we could get in another generation. One reason against codification has not been stated by the gentlemen of the New York City Bar Association, and we do not scruple to give them a live reason. That reason is, that after we get a Code the courts, having run so long in the ruts of the common law, will not pay any attention to it. For example: the Code of Civil Procedure, section 3345, enacts that "the rule of the common law that a statute in derogation of the common law is strictly construed, does not apply to this act." This was the provision of the old Code, § 467. Now in the case of Noyes v. Davidson, an abstract of which is given in another column, our Court of Appeals say, the chief judge himself writing the opinion: "Sec. tions 1421 et seq. of Code of Civil Procedure, authorizing the substitution of the indemnitors of a sheriff as defendants in an action brought to recover personal property levied upon him by virtue of an attachment or execution, or to recover damages for such a levy are new, and constitute a serious and important innovation upon the law as it stood previous to their enactment. This statute is clearly in derogation of the common law and common right, and by settled rules of interpretation must be strictly construed, and not extended beyond its express provisions and clear import. McCluskey v. Cromwell, 11 N. Y. 593; Sprague v. Birdsall, 2 Cow. 419; 4 Mass. 145, 473." If courts are not going to pay any more attention than this to Codes and statutes, of course we may just as well let them go on making the law to suit themselves. We wonder if the court would not have granted a reargument in this case on the ground that they had misapprehended the law. The Pennsylvania Supreme Court, in April, 1884, were called on, in Carroll v. Burns, to construe this provision in a will: "All the rest, residue and remainder of my estate, real and personal, I devise and bequeath unto my said three daughters, to have and to hold to them during their natural lives, and after their death then to the lawful issue of my said three daughters and the heirs and assigns of such issue." They unanimously held that "the clear intent of the testatrix was to give each of her daughters a life estate only, and on their death to give to their children and their heirs the estate in fee." Soon after this decision was rendered, leading conveyancers and real estate lawyers, although without any standing in court as to the case, united in a memorial to the court, praying for a rehearing, on the ground that the decision, as it stood, would unsettle half the real estate titles in the city; and it was contended that the decision was contrary to the "rule in Shelly's case," the ancient and accepted rule for interpreting the principle involved. A rehearing was granted, and the court, three judges dissenting, held that "perhaps the testatrix intended to give a life estate to her daughters, and the remainder in fee to their children; but she has used words which definitely vest in her daughters an estate tail, and the courts are not at liberty to wrest them so that they may mean any thing else." And so reversed their former decision. Fine commentary on the precision and "elasticity" of the common law! This is cited as a remarkable instance of a court's reversing itself, but we recollect that this same court turned a similar somersault a few years ago. The constitutional question in the case of General Lawton's appointment by the president is not so easy to dispose of as the party newspapers on both sides deem it. Attorney-General Garland is a good lawyer, and he holds that President Johnson's pardon made General Lawton a new man, and quite competent to hold office under the government in spite of his previous rebelliousness. Others think that the subsequent constitutional amendment requiring the removal of disability by Congress applies to the General's case, and that the pardon extended only to criminal responsibility. But it is replied that one of the consequences of rebellion or treason was incompetency to hold office, and that this disability was cured by the pardon. But then on the other hand it is said that while an act of Congress alone could not revive the disability, the constitutional amendment did have that effect, that the change of the fundamental law could and did effect any thing that the sovereign law makers, the people, intended or desired. It is much easier to state the question than to solve it, and we shall not at present undertake to express an opinion, because we have no right, upon present reflection, to have any. It is a good question for our law-school moot courts to discuss, and settle off-hand. We think that General Lawton showed excellent sense in not accepting the appointment. We will suggest however that it is a question that will need to be settled some time, and no time is better than now. there is sufficient on this case to show that the coroner had the right and power to hold one. No case absolutely in point has been referred to, but there are many cases which show that interfering with and preventing the performance of duties imposed upon officers by statute is a misdemeanor at common law. Now the holding of an inquest is a matter of great public importance, and it is most important that where a coroner has reasonable grounds for holding an inquest, he should not be prevented from doing so, otherwise the consequences would be most formidable. Child murder especially would be more likely to go unpunished, if by disposing of the bodies by burning the only evidence perhaps of the crime could be destroyed. The very object of a coroner's inquest is to ascertain the cause of death, and it certainly is not the law that the coroner must be certain of the cause of death before he can hold an inquest, which would be the effect of the argument that the prisoners cannot be convicted, although the coroner acted reasonably in determining to hold the inquest, if the inquest should prove to be unnecessary. Under the statute of Edward I, the coroner's duty is to act on information, and the inquest is held to test the information. It is said in Bracton 3, chapter 5, and Horne's Mirrour, page 38, that the statute is in affirmance of the common law, and merely directory. Now the statute says 'the coroner, if he be certified by the king's bailiffs or other honest men of the country, shall go to the place where any be slain, or suddenly dead or wounded,' nothing being said about murder. An examination of the body is required by the statute, and the whole wording shows that an inquiry into the cause of death is intended, which would be useless had the coroner to satisfy himself by evidence as to the cause of death previously to holding the inquest." In City of Chicago v. O'Brien, 111 Пl. 532, it was held that a city has not the constitutional power to require the owner or occupant of premises to keep the sidewalk and gutters in front thereof free from snow and ice, or to sprinkle the same with ashes or sand where the snow and ice cannot be removed him for a neglect or failure to do so. Referring to without injury to the pavement, and inflict a fine on contrary cases the court said: "These cases go to the length of sustaining the doctrine contended for by plaintiffs in error. They announce the doctrine that such improvements may be compelled under the general police power. If this be so, by an exercise of the same power we presume that the owner could be compelled to construct and keep in repair public roads, bridges and culverts fronting upon or running through his lands, or the owner of a city or village lot could be compelled to make and repair the street in front of his property. A sidewalk is a portion of a public highway, appropriated, it is true, to pedestrians alone, but still open and free to all persons desiring to use and enjoy it as a public highway. It is as much a public be responsible for the safe keeping and return of the carriages. Held, that the principal was not bound. The court said: "It is said in the brief of plaintiffs' counsel that it is a matter of common knowledge that no well regulated hotel could do business and accommodate the public without making some such arrangement as this, and that it is a well-known occurrence for a guest who wishes a horse and carriage to apply at the desk, and an order is sent to the livery stable keeper, who fur highway in the mode of its use as the street itself. The difference in the manner of their use does not render one public more than the other. They are both free to be properly used and enjoyed by the entire public, and are constructed alike for their use. That the Legislature may afford the necessary power of constructing such improvements, so essentially necessary to the comfort and convenience of the community, is apparent; but under our constitution we think the mode authorized in this case is not sanctioned. * * * Even the policenishes the equipment to a man he does not see, and power, comprehensive as it is, has some limitations. It cannot be held to sanction the taking of private property for public use without making just compensation therefor, however essential this might be, for the time, to the public health, safety, etc. And upon like principle, a purely public burden cannot be laid upon a private individual, except as authorized in cases to exercise the right of eminent domain, or by virtue of proper proceedings to enforce special assessments or special taxation. The drainage of malarial swamps would surely largely contribute to promote the public health; but could it be contended that therefore the burden of such drainage may be laid upon some single person to be arbitrarily selected, or upon those who happen to own the adjacent dry land, in disregard of the principles applicable to special assessments and special taxation? Undoubtedly, the allowing of ice and snow to remain upon a sidewalk may be declared a nuisance, but it must be a public nuisance, and one, too, not caused by the act of the adjacent property holder, but solely by the action of the elements. No one questions the right of the municipality to prevent such use of property, and such action of the citizen as may be injurious to the public; but the adjacent lot owner has no ownership or control of the adjacent street, and this ordinance seeks to control the action of no one while on the street. The lot owner is held responsible solely and simply for the accident of owning property near the nuisance. He may have no more actual control of the street, or necessity to use it, than if his property were miles away; still he is held responsible for a result he could not control, and to the production of which he did not even theoretically contribute. The gist of the whole argument. is merely that it is convenient to hold him responsible. It is not perceived why it would not be equally convenient to hold him responsible for the entire police government of so much of the street." The court reaffirmed Gridley v. City of Bloomington, 88 Ill. 554; S. C., 30 Am. Rep. 566. Dickey, Sheldon and Craig, JJ., dissenting. We believe this doctrine prevails nowhere else. In Brockway v. Mullin, 46 N. J. L. 448 (Supreme Court), an agent was authorized to manage a hotel, and without the knowledge of the principal entered into an arrangement with a livery stable keeper that the latter should furnish carriages for the guests of the house, and that the house would so has no means of ascertaining his responsibility. to the hotel business, and with the fact that the proprietress was ignorant of the transaction, there is nothing to support the agent's authority to bind her by such an agreement." OF A SHORT PLEA FOR A CODE. F laws "the most to be desired are those that are the most rare, the most simple and general; and I am further of opinion that we were better to have none at all than to have them in so prodigious numbers as we have." Thus concluded old Montaigne. It is hardly necessary to observe that were he living to-day he would see no reason for changing his opinion. He knew that "there is little relation between our actions that are in perpetual mutation and fixed and immobile laws," and he expresses with his usual pungent quaintness the futility of the attempt to provide for all contingencies by statute and by precedent. It is like trying to hold quicksilver. It is, in short, unscientific, and this is to our mind the fatal objection to che common law in its present state. We think that the supporters and advocates of a code are, in effect, seeking to adopt in law the same method that prevails in every other branch of human know.. ledge to strip away the scaffolding, and show the actual state of the structure. distinctions and collateral authorities, and thus waste time in getting rid of a heap of super-incumbent material, useful enough perhaps in other connections, but just superfluous rubbish for the purpose we have in hand. We would laugh at the savant, who having to call to his aid the law of gravitation, should for that purpose remount to Newton's original experiments, and work his way from them downward to the matter in hand, and yet this is what we are doing every day of our lives. Further, is it not probable that if our scientific men pursued this round-about course they would go wrong in many an observation, simply for want of having the necessary law right to their hands? The length and difficulty of the reference would lead to many an oversight of the law. And so here, if this old maxim, couched in fair, modern terms, formed part of a handy, well conned code, would not its force be invoked in many a case where it is now passed over in inadvertent silence? Nor let it be objected that what we ask for is simply a new version of the Decalogue. In the best sense it is a modern Decalogue we ask for. "For there are in nature certain fountains of justice whence all civil laws are derived, but as streams, and like as waters do take tinctures and tastes from the soils through which they run, so do civil laws vary according to the regions and governments where they are planted, though they proceed from If, in any of the physical sciences, the workers of the same fountains." (Advancement of Learning.) the present day had at their command only the ac- We believe that the constant tendency of modern cumulated, undigested experiments of their prede-law is toward union with morality. Hard cases do cessors, what progress could they make? It is by method that they advance. Each man's discovery or experiment becomes part of a distinct and definite whole, so that the trained specialist can state precisely the position up to date of his particular science. Why should law alone be exempted from this process? Because, we are told, law is not a science. Most assuredly amongst ourselves at present it is not, but if it is wished by the assertion to convey that it is intrinsically incapable of being made a science, we have proof positive that the assertion is wrong. Wherever a code exists there law has assumed the rank and dignity of a science; there jurists and jurisconsults exist in fact as well as name, and the study of the law is a truly liberal study. Law is the essence of all other sciences, and shall it be unscientific only when applied to human affairs, its most immediate function? Can we not all discern with more or less distinctness the fundamental principles which underlie the endless mutations of our cases? Often misapprehended and misapplied, still the principles are there, just as capable of exact and definite statement as the laws of gravitation or molecular force. Take one simple instance. Sic utere tuo ut alienum non lædas is one of the bottom truths, as old as the hills, which must have been recognizable as a principle of right by the first judge who ever tried a case. And yet where is it in our law? We must go and dig it out of Fletcher v. Rylands or some similar case, and accompany it with a long train of not make bad law, it is bad law that makes the hard cases. The perfect consonance of law and conscience is no impossibility. The goal is still far off, but how much nearer than fifty years ago! Already in England, equity and common law "have met and kissed each other," and "Meeson and Welsby" slumber in disused oblivion. Now what hinders that we should put on record the exact present state of our corpus juris, so that we may see where we stand? Will not defects be more quickly remedied when they stare us in the face in black and white, challenging the attention of every reader? Nor do we think it reasonable to fear that the mere fact of codification would tend to arrest reform. The day of reverence for authority, as authority, has gone by. We are not at all likely to sit down and worship the idol our own hands have made. The danger, if any, lies in a contrary direction that of too hasty and ill-considered attempts to remove apparent blemishes. In one respect the law would gain in authority, viz., in public estimation, and how much such a gain is needed no American requires to be told. Just as much as the reproach of obscurity is removed from our "jurisprudence" (save the mark!) just so much will that jurisprudence gain in moral influence. Who can respect a shifting umbra that its very professors cannot define? The influence of the lawyer to-day is still something like that of the magicians of times gone by. He is a professor |
