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will be necessary to reduce the interpretation to an intelligible basis. The English cases, instead of being any help, are armouries out of which the lawyers equip themselves, to fight the controversies out anew. The forms of procedure, which were proclaimed as models of simplicity, are more cumbrous
of the old real actions at Common Law. This is the last example of codification, though there is at present a Commission sitting daily at Washington to revise all the United States' Statutes, and the Commissioners to revise the Parliamentary Statutes have recently published their draught of the Revised Statutes, which they recommend the legislature of that State to enact.
The old question, “ Who is wiser than the wisest man ?” and the answer, “ All the world,” bring out the relative superiority of the Common Law over any code. A few individuals, no matter how able or erudite, cannot expound the law in all its departments in detail, and no generalisation, unless made with a clear view of all the instances that might be comprehended under its terms, would be an adequate expression of the law, which it attempted to epitomise. As the law now stands it resembles a natural science. Every lawyer in the kingdom and in the colonies, and in most of the United States, so far as he is able to elucidate any one section of the entire body of law, contributes to the work of simplifying the system. Nor is this aid a trifle, like the investigations of the naturalist in remote quarters of the globe; it often illuminates the subject, and gives the clue for a philosophical classification, which is final, and not only puts an end to conjecture in that department, but reflects light upon the entire inter-dependent system. An illustration will make the meaning clear. The subject of General Average has attracted a great deal of attention in England and on the continent of Europe. The propriety of calling an international congress, in order to enact a code upon this subject, has been advocated (XVI., Law Magazine, 322), and numerous other suggestions have been made to settle artificially this single principle.
Fortunately no such straight-jacket was ever put upon it, but it was left as it is, embodied in the precedents. A man with a mind of diamond-like clearness, and of first-class magnitude, found the question involved in a case which arose in his practice in Ohio. He applied himself to the investigation of the subject, and mastered it. His treatment of the doctrine is as finished a piece of analysis as can be found in legal literature. It is published as a note to Johnson v. Chapman, in the American edition of 19 Common Bench Reports, N.S., 583. Let any one who desires to witness the process by which the Common Law is simplified examine the Hon. R. P. Spalding's argument on General Average.
The accumulation of reports requires, it is true, a digest of all the cases which continue in authority, in order to render the vast bulk of precedents accessible. Reference to the digest itself may be facilitated by indexes, which should give the points of decision without any statement of facts, and by a logical analysis which should display the inter-dependence and coherence of the entire system. But this must be in aid, and not in exclusion, of the present law. The moment a digest becomes an authoritative exponent of the law, its version is substituted for the original, and as the language of the summary is authentic, its interpretation takes the place of the decisions, which it supersedes. The work once completed must be done over again, and in a method always imperfect because of the inadequacy of language to convey with perfect precision the thought of the writer. The clever description of President Lincoln's message: “ Thought struggling for expression,” is true to a greater or less extent of all languages. This Review has already explained the difficulty in Volume XVIII., p. 322, at length.
Reports multiply in the United States with alarming rapidity. Each State has its regular official reports of, on an average, three or four volumes a year, which are limited to cases decided in the highest State tribunal. The decisions of the lower courts are also frequently reported, and in the large cities these local reports accumulate in unexampled numbers. Thus Barbone's Reports of one district court in New York number fifty-six, all published since 1848.
A volume of the Pa. State Report has just been issued, December 30, 1870, being No. 62 of the present series, but No. 126 of the entire set of the Reports. It contains a case, Pa. R. Railway Company v. Kerr, p. 353, which at first sight seems to conflict with Smith v. London and South Western Railway Company, L.R., 5 C.P. 98, but in reality differs widely from it. The sparks from a locomotive set on fire a warehouse situated near the track, and from the warehouse the fire was communicated to a hotel thirty-nine feet distant, which was consumed with its contents. Suit was brought against the railroad company for damages suffered by the destruction of the hotel, and they were recovered in the court below; but the supreme court reversed the judgment on the ground that the ignition came from the warehouse, and not directly from the locomotive. A secondary cause operating through and by means of an intervening cause is too remote to create liability. In Smith v. London and South Western Railway Company, heaps of hedge-trimming were left by the servants of the railway company near the track during a season of unusual dryness, and caught fire from the sparks of a passing engine. A high wind swept the fire across a public road and stubble field, and set fire to a cottage 200 yards off. The plaintiff recovered compensation from the railway company for his goods which were burnt up in the cottage. The court held that there was negligence on the part of the railway company in leaving the dry heaps near the track during such a season.
Had the warehouse in Pa. R. Railway Company v. Kerr been the property of the company, and had it been negligently erected so near the track as to be in danger of ignition from passing locomotives, the direct and intermediate cause would have been consolidated into one immediate cause attributable to the railway company; the erection of the warehouse would then
have been viewed as a piece of negligence which resembled leaving the heap of hedge-trimmings in a like exposed position.
Clark v. Douglass, p. 408, turns upon the conclusiveness of a judgment. A defaulter joined with his wife in executing a mortgage of her real estate to his surety for the unascertained amount embezzled, and they subsequently confessed judgment for a sum which they liquidated as the indebted
On a feigned issue between the creditors and the surety the record did not show what issue had been tried, but the Court said the only question which could have been presented to the jury was collusion between the defaulter and wife, and the surety to defraud the creditors. The creditors offered to prove that the defaulter paid the surety 12,000 dollars over and above the debt to compound the felony, but the offer was overruled, on the ground that though this was collusion to defraud the Government, it was not collusion to defraud the creditors; as to them it might have been a matter of defence, which was concluded by the judgment. To impeach the judgment on any ground except collusion would be illogical, as otherwise it would stand as to the defendant in it, and at the same time be void as to the creditors. But query? for if a man with an ivtention to commit a fraud does an act which, if coupled with the guilty intention, would amount to a different fraud, is not the intention joined by law to the act in order to establish the fraud ? At the Common Law, if a man shot at a dog, the property of another,
and in so doing killed a human being, he was guilty of murder. In the above case the argument is à fortiori, because the act is the same, and may be viewed as a fraud with a double aspect, if the party is not allowed to define his own guilt.
Schurertz v. Shreeve, p. 457, decides that the implied power of a partner to bind the firm by an executory contract does not enable him to do the same thing by an instrument under seal. The seal alters the character of the liability created; it implies a consideration, and takes away the period
of limitation. An agreement by one partner for his firm to deliver petroleum was held not binding in consequence of a seal being attached to the signature. Edwards v. Tracy, p. 374, adheres to the law as it stood in England before Cox v. Hickman, 8 H.L., 268, and Bullen v. Sharp, L.R., 1 C.P., 86. The agreement was that one firm should receive a commission on the sale of goods commissioned to them by another firm equal to one-half of the profits, and should be liable for one-half of the losses. According to the old distinction that a commission equal to one-half of the profits is a very different thing from one-half of the profits, it was decided that a partnership did not result from the agreement. Guremeyer v. Southern Mutual Insurance Company,
The insured sold a mill, and took a judgment for the balance of the purchase-money. By the sale he lost his insurable interest, as the judgment is not a specific lien. And Peel v. Elder, p. 308, decides that adultery, unless accompanied by voluntary separation from her husband, does not bar a wife of dower under the Statute of Westminster, 13 Edw. I. c. 1, s. 34. Elder abandoned his wife and removed to Tennessee, where he obtained a divorce. It was invalid, however, as the wife's domicil, being distinct from that of the husband in proceedings for a dissolution of matrimony, remained in Pa., and the Courts of Tenn. had no jurisdiction. During his absence she cohabited with one Pickel. On his return he remained with her a short time, and then left her and married another, and it was during the second marriage that he conveyed the property to Peel. The wife's indiscretion was induced by the husband's neglect, and the Court saw no reason to deprive her of dower.
Vol. XXX.-NO. LX.