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classes and conditions of men, give it a superiority over the civil and statute law, and indeed, over any written code, that aims at regulating more than the mere form or mode of administering justice. For the common law is not in its nature fixed and inflexible, as the statute law, providing only for particular cases, which may fall within the precise letter of the language in which a legal proposition is clothed. 6. It is rather a system of elementary, and of general juridical truths, which are continually expanding with the progress of society, and adapting themselves to the gradual changes of trade and commerce, and the mechanic arts, and the exigencies and usages of the country:" Report of Commissioners on Codification of Common Law of Mass., Jan. 1837. It consists of two classes of propositions: the one embracing principles, which are fundamental, and never departed from; the other embracing those, which, “though true in a general sense, are at the same time susceptible of modifications and exceptions, to prevent them from doing manifest wrong and injury.” The latter class we may remodel and reform, as the true ends of justice require. But the former is founded only upon truth and right, and derived from that higher law itself, which man cannot improve, and with which he may not interfere.
How beautiful is this system, which is so symmetrical in its parts-so applicable to the condition of all, and which has secured to us and to our ancestors, for ages past, protection, happiness, and prosperity! Well may it be the pride and boast, not alone of the great English Commentator, but of all, wherever they may be, “ who speak the tongue that Shakspeare spoke.” We may and should direct its course, and disencumber it of the rubbish which time throws about it; but we must not retract an iota of its substance. And herein is shown the wisdom of the framers of that greatest reform of modern times, the New York Code. Theirs is merely a Code of Procedure : Vide N. Y. - Code of Procedure,” Preamble. They touched no principle--no maxim of the law. They simply changed the robes of Justice, which, though revered, indeed, and much esteemed, had become worn by time and use, till they ill subserved their purpose. Codes which aim at more than this are, almost invariably, subject to one of two objections: they are either “ too expensive to purchase, too long to read, and too multifarious to remember;" and, thus, are placed beyond the reach of all, save those who make them a professional study (« Revision of Laws of Mass,” American Jurist, 1835), or, they neglect some important branch, or branches, of the law. As an example of the latter, may be mentioned the French Code, in which the law of evidence—the very key and corner-stone of justice between man and man,” has been almost entirely overlooked : « Eng. & Fr. Systems of Jurisprudence,” London Legal Observer. From all these considerations, the thought must at once suggest itself, that the utmost care, foresight, and discrimination are to be exercised in all legal reformation, lest the attempted remedy be worse than the existing defect, and lest we o root up also the wheat.” And how can this care, foresight, and discrimination be secured, if it be not by a more extended investigation of this important subject on the part of the profession, and a more general study of that branch of the profound science of the law, which teaches its relation to man's social condition, and the necessity of its perfect adaptation thereto?
To accomplish this, it is true, much labor and perseverance will be required on the part of all. But how rich and how abundant will be the harvest! And when this is accomplished, the main end and object will be well nigh attained. All will then work in unison; and reforms will take place, as it were, by chance. For it is thus that many most salutary changes have occurred, even in times when there existed no such general information and interest, as that spoken of, concerning this subject. Sir William Blackstone, for example, that " apologist for defects,” was himself a reformer; for not only did he, by commenting in glowing terms upon improvements already made, incite others to effecting like improvements, but he, also, in his chaste and elegant style, lent to his subject a grace and attraction, which have since been of almost inestimable value. Not that he gave to the great science any element which it did not before possess; he simply polished the rough diamond, and thus displayed its hitherto hidden lustre.
The law is said to act upon individuals, not upon classes. While it is the most complex, as well as the most potent, of all the engines which move and regulate society, it is at the same noiseless in its operation; the working of its machinery is scarce heard amid the din of active life : Field's Tracts on Law Reform, p. and 4. Hence it is, that its imperfections are not always apparent. Hence, also, the necessity of untiring vigilance, that, when the opportunity is afforded, those imperfections may at once be corrected; for, that such do exist, all seem to admit.
We might here remark upon the delay and expense, which still impede the administration of justice in our courts, thereby defeating, in many instances, the very object for which those courts are established. That eminent tribunal—the Court of Appeals of the State of New York, for example, is, in the hearing of its causes, years behind its calendar, notwithstanding the many salutary reforms, which have of late been accomplished in the jurisprudence of that state. We might, also, call attention to the many intricacies which encumber the law of real property, of conveyancing, of negotiable paper, and other branches. But, as we remarked in the beginning, we do not presume to point out the defects. We would leave the discovery and correction of these entirely to those, whose positions and long experience in practice enable them to make such changes as may seem meet. For to them does the good work properly belong. But be it ever remembered, that in all reformation the first essential is, to ascertain the right path, and never to depart therefrom. And we cannot refrain from quoting, in this connection, the eloquent language of a true reformer, who, in describing the road on which reform should journey, says: 6. That road winds round the mountain and skirts the morass, turns off to the village or the landing-place, respects the homestead and the garden, and even the old hereditary trees of the neighborhood, and all the sacred rights of property. That is the road on which human life moves easily and happily—upon which • blessings come and go.'
• Such may we make that road on which justice shall take its regular and beneficent circuit throughout our land—such is the character we may give to our jurisprudence, if we approach the
hallowed task of legal reform in the right spirit, if we approach it not rashly but reverently-without pride or prejudice—free alike from the prejudice that clings to everything that is old, and turns away from all improvement; and from the pride of opinion, that, wrapped in fancied wisdom, disdains to profit either by the experience of our own times or the recorded knowledge of past generations:” Verplanck's Speech in N. Y. Senate, p. 30 and 31.
RECENT AMERICAN DECISIONS.
Supreme Judicial Court of Maine.
SARAH M. PIPER VS. CHARLES D. GILMORE.
Certain notes payable to A. were by him deposited with B., in pledge as security
for his indebtedness to B. C., being desirous of collecting a claim of his own against A., made inquiries of B. as to the notes; and B., without being informed of the purpose of the inquiry, replied that the notes belonged to A.:—Held, that, without proof that B. intended to deceive C. to his injury, these facts do not operate as an estoppel in pais, to prevent B. claiming money paid to him on the notes, notwithstanding the money was attached and seized by C. at the time of
payment. In such a case, in order that B. should be estopped from setting up a title to the
money, it must be shown that he wilfully gave false information to C., with an intention to deceive him, and to induce him, on the faith of it, to act in a different manner than he otherwise would have done, whereby .C. was led to change his action, and was thereby injured.
TRESPASS against the defendant as sheriff of Penobscot county, to recover damages for his taking $290 in specie, alleged to be the property of the plaintiff. Plea the general issue, with a brief statement justifying the taking of the money as the property of Mark W. Piper, by virtue of a writ of attachment in favor of Henry Pendexter, against Mark W. Piper and Martin V. B. Piper. The action, Pendexter vs. Piper, was entered and prosecuted to judgment, and the $290 applied to satisfy the execution.
In July, 1854, Pendexter, having bought a farm of Mark W. Piper and Martin V. B. Piper, gave them his notes for $800, and a mortgage of the farm as security. The notes not having been paid, the mortgagees gave notice of their intention to foreclose it. May 19, 1856, Martin assigned his interest in the notes and mortgage to the plaintiff.
There was evidence tending to show that Mark was, at the time of Martin's assignment, indebted to the plaintiff, $425 and interest; that Martin delivered Mark's share of the notes and mortgage to the plaintiff, Mark being then in New York; that, on his return to Kenduskeag in 1857, he obtained further advances of the plaintiff, and agreed with her that she might hold the notes and mortgage as security.
In 1858, R. S. Prescott, agent of Pendexter, and of the owner of the equity of redemption in the farm, asked the plaintiff if Mark owned half of the notes. She replied that he did : that she had no control so as to allow for the oats, on Mark's part, but no doubt Mark would do what was right.”
Soon afterwards, Prescott caused the writ in Pendexter vs. Piper f al. to be made and delivered to an officer, and when Pendexter paid his mortgage-notes, the officer attempted to seize the specie, and succeeded, after a struggle, in securing $290, the plaintiff retaining the balance.
There was evidence that Mark W. Piper at the time owned real estate in Kenduskeag, which the officer did not attach.
CUTTING, J., presiding, instructed the jury, that if the plaintiff told the agent of Pendexter that Mark owned half of the notes and mortgage, and he was deceived by such declarations, whatever the knowledge or intention of the plaintiff, and attached the specie on the strength of such declaration, and was thereby injured, the plaintiff could not be allowed to claim title to the money attached. And if Mark had other property which could have been attached by Pendexter, and he was deceived by the plaintiff's declarations, and did not attach such property, the jury might consider whether this was an injury to Pendexter.
It did not appear that Mark or Martin was insolvent at the time, nor that the plaintiff knew that Pendexter was about to attach the money, or made any claim to the notes or money, or was about to commence or had commenced a suit.