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on their part should reflect that it is wrong to lend to the movement for transferring local collections to a central office, the aid which is furnished by manifest neglect or indifference of local keepers to the objects of their charge.
In connection, though not necessary connection, with this, the county office might usefully serve for a repository of derelict deeds. In his book on Abstracts (Vol. I. p. 28), Mr. Preston, the late celebrated conveyancer, observes :
" Deeds and even wills are sometimes found in the hands of those who represent the stewards or the law agents of the family of the former owners, or of the gentlemen who have succeeded to the professional concerns of such law agents, &c.
“ It would tend greatly to public convenience by facilitating such researches, and be a profitable appointment to any individual, that all deeds, wills, &c., left or found in the hands of persons who have no connection with the property or with the owners, or a table of their dates and the names of the parties, and the description of the parcels, should be deposited in some public office. The existence of such office would soon give it abundance of employment.”
Since Mr. Preston's time, the practice has arisen of casting aside deeds which do not enter into a short title, or are displaced by a certificate of title. This adds force to the proposed means of securing them from destruction, and keeping them out of the hands of those whose dealing there with may produce profit to themselves but injury to others.
Persons going to the colonies or foreign parts are often embarrassed with the difficulty of knowing how to dispose of their deeds and wills in their absence. The county office might be made a useful place for such deposit.
The Real Property Commissioners of 1832, in their string of questions on a general register, asked whether the registry office might not be used for such deeds at the option of their possessors, or at the suit of owners of partial interests or in satisfaction of covenants for their production.
The respondents agreed upon the usefulness of having a public place for the reception of such documents, but it was
doubted by some of the most experienced witnesses whether it should belong to the proposed registry office. Mr. Bell thought it a distinct matter. you
choose to make a distinct office for depositing deeds, that may be a very different question.” To the above questions Mr. G. Harrison answered—“No; let the register be as fresh as the new and as bright as the full moon without
“It might be very convenient, particularly if there were county registers, to have an office where people could deposit their deeds and wills, but it should be no essential part of the registry office.”
That service might be remunerated by moderate fees.
ART. IX.-AMERICAN LEGAL NOTES.
N inclination to investigate the laws of other countries,
and to institute a comparison between them and the Common Law, is a trait of the English lawyer as marked as it is recently acquired. The works upon the Roman law which have been published by English barristers within a few years, attest the strength of the impulse, and the establishment of the Revue de Droit International et de Legislation Comparée, by an English publicist of high standing, in conjunction with continental jurists, is a sign of the drift which modern professional opinion is taking not to be mistaken. It is but natural that with this prevailing disposition, the American law, which is merely a graft upon the English stock, should receive special attention, and no one who handles the law reports can have failed to remark the frequent citations from American text-books and reports in the arguments of counsel and in the decisions of the Courts. As it is of the utmost importance for the development of law that the dis position thus evinced to cultivate comparative jurisprudence should be encouraged, and as it is grateful to an American lawyer, who has grown up in the quaint realm of Coke, to feel that his title to fellowship in the common heritage is recognised, and his labour appreciated, it is proposed to facilitate the incipient professional intercourse, by giving occasionally in the Review a summary of the current events in the United States, which, being strictly confined to professional topics, may be instructive and interesting to English lawyers.
A topic at present in common between the two countries is the revision and consolidation of the Statutes at large, and the feasibility of a digest or code of the Common Law. Experiments of each kind have been made without number in the United States, and new ones are now on foot, with more or less chance of enactment. It is a vital question for the English legislator to understand the effect of the attempts which have thus far been made, in order to act intelligently upon the subject which has already been forced upon his attention. The gravity of the project arises from the irrevocable nature of the change, were it once introduced and carried out. No return to the old system would be possible, after a generation of lawyers had been educated under a code; the connection with the antecedent law, except so far as reference to it might be contained in the code itself, would have been finally severed. A race of lawyers unacquainted with the system, history, and traditions of the Common Law, would have taken the place of the class which now makes that law the subject of its life-study. The inducement to master a scheme so complicated would have been taken away, and none but a legal antiquary would trouble himself about the superseded machinery. It is the failure to apprehend and realise the break with the past, which is involved in a code, that stamps its advocates with superficiality. Thus Mr. Field, of New York, who was mainly instrumental in procuring the adoption of the New York Code of Procedure, has recently published a letter, dated November 28, 1870, addressed to several members of the California Bar, in which he exhorts
them to aid in effecting the enactment of civil, penal, and political codes, in addition to the codes of civil and criminal procedure, which California has already adopted; and the argument which he advances, and upon which he relies as conclusive in favour of a code, drawn from his experience in New York, is that the opposition which manifested itself at first vigorously to the New York Code of Procedure has gradually diminished, and has now almost terminated. This unavoidable acquiescence he considers a silent acknowledgment by the opponents of codification that they were mistaken in their first judgment upon the Code. Could fatuity lead one farther astray ? The explanation of the reason which induced the Common Law practitioners to discontinue their hostility is as simple as it is natural. To prolong the struggle would be futile. The younger members of the Bar, a constantly increasing number, have been instructed in the code, but are unacquainted with the Common Law practice, and, should the code be repealed, they would be compelled to begin their legal education anew, and, during the interval of study, be incapacitated for practice. The new generation of lawyers which has come to the Bar within the last twenty years comprises the vast majority of the present practitioners, and the combined influence of this new race precludes any reconsideration of the question. The body which should be free to deliberate upon the procedure which it ought to adopt receives such a set and bias through its interest and one-sided knowledge, that it is incapable of arriving at a just conclusion. Is the opening of an abyss which isolates us from the accumulated stores of past generations to be heralded as advance ? As well might the capital of the world be destroyed at a blow, on the pretext that we might begin afresh, unencumbered with antiquated rubbish.
But what is the practical result of the New York Code of Procedure? If the opinion of the leader of the Bar, a lawyer, not of clap-trap fame, but of thorough erudition and training, is desired, it may be found in the first volume of the Albany
Law Journal, page 302. Mr. O'Connor shows that the framers of the Code, in attempting to simplify the practice, succeeded in producing confusion; and the exclamation of Mr. Field, that our law is a chaos, applies, as all will admit, to his pet subject of simplification, the practice of New York. Mr. O'Connor, after mentioning that the Code requires the facts which the evidence tends to prove, but prohibits the evidence itself or the conclusion of law from the facts to be pleaded, says, “ It requires somebody much more wise or
, more subtle than myself, or any special pleader I have ever been acquainted with, to define or find out what it is that should be stated in a regular pleading drawn in compliance with this requisite of the Code. I am not aware that any one has ever attempted to do it. The common practice in this State is, to tell your story precisely as your client tells it to you, just as any old woman in trouble for the first time would narrate her grievances, and to annex, by way of schedules, respectively marked A, B, C, &c., copies of any papers or documents that you may imagine would help your case.
This is most emphatically a fair description of all the pleadings which come from the office of the chief codifier himself. A demurrer to any pleadings under the Code is a very dangerous slip, because it is utterly impossible for the keenest investigator to determine, in most cases, what any other reader than himself will understand to be the import of the pleading if it be demurred to.”
The United States' Bankrupt Act of March 2, 1867, was meant to embody the results of the English decisions and Statutes. It was prepared by a lawyer of eminent ability, Mr. Jencks, of Rhode Island, who thought he had simplified the subject to its last elements. But the attempt is a failure. It would have been far simpler to have incorporated the English law as it stands, just as English Chancery jurisdiction is conferred, in some States, upon the courts. Multitudes of cases have already sprung up to test the meaning of the enactment, and twenty years and a hundred volumes of reports