THE

THE CIVIL CODE IN 1888.

HE hearing on the Civil Code held this year before the two judiciary committees in joint session, was so remarkable that I have thought it would be useful to the members of the Legislature, few of whom were able to be present, to have some account of it. There were two sittings, in one of which the Code was, as usual, denounced by Mr. James C. Carter, and in the other the denunciation was continued by Mr. William B. Hornblower, Ex-Judge Noah Davis and Mr. Frederick R. Coudert. These gentlemen are all lawyers, deputed by an association of lawyers, the New York City Bar Association, to oppose the Code. Whether the Association has spent any of its corporate funds this year in support of its opposition I do not know, but its treasurer's report shows that it expended in one year $1,750. Among the developments of the present year were the following:

I. Every one of the gentlemen protested that all the codification heretofore had in this State was a misfortune. Mr. Davis declared it to be an "historic calamity." This, of course, included the Penal Code, as well as the two Codes of Procedure, civil and criminal. Such a protest must be accepted as a declaration of war by this Bar Association against all efforts to have the law as it is made by the judges written out for the information of the people, though enforced upon their persons and estates. If this is once understood by the citizens of the State, they will make short work with bar associations which happen to stand in their way.

II. Mr. Hornblower opposed the Code, because of the forty-one sections on corporations, declaring that they would upset all the present law on the subject. He said this, in face of the following section:

"551. The powers of corporations, the time, place and manner of exercising the corporate powers; the means by which persons may become members or lose membership, the kind and number of officers and the manner of their appointment or removal, are prescribed by this Code, or by the statutes relating to the corporations respectively, or the by-laws made in pursuance of law."

III. Mr. Davis followed, with self-conceit, incredible if it had not been seen, and avowing that he had read no part of this Code, until retained by the Bar Association three days before, and that he made his notes upon the sections, coming up in the train, proceeded to criticise with the arrogance of ignorant and presumptuous folly. He declared, among other things, that the Code authorized an infant at the breast to execute a power over real estate. Interrupted by the chairman of the assembly committee, with the question. "Do you mean really to assert that the Code does this?" he answered, "I do." This he said having before him section 439, as follows: "A power cannot be executed by any person not capable of disposing of real property." After this it can hardly be necessary to take further notice of the exjudge.

IV. Mr. Coudert, admitting the excellence and the success of the French Codes, accounted for them by the original and entertaining observation, that the French language had a peculiar aptitude for codification! He then complained of these two sections:

"Section 1368. One who hires part of a room for a dwelling is entitled to the whole of the room, notwithstanding any agreement to the contrary; and if a landlord lets a room as a dwelling for more than one family, the person to whom he first lets any part of it is entitled to the possession of the whole room for the

term agreed upon, and is relieved from all obligation to pay rent to him while such double letting of any room continues."

"3157. All statutes, laws and rules heretofore in force in this State, inconsistent with the provisions of this Code, or repeated or re-enacted herein, are hereby repealed or abrogated; but such repeal or abrogation does not revive any former law heretofore repealed, nor does it affect any right already existing or accrued, or any proceeding already taken, except as in this Code provided. If there is an existing rule of law omitted from this Code, and not inconsistent therewith, it continues to exist in the same form in which it now exists."

If anybody can explain Mr. Coudert's reasons, if reasons there were, for complaining of these sections, he can do better than I can. Many other things, equally pertinent and equally astonishing, were said by the four gentlemen who represented the Bar Association. But these that I have given may be taken as samples of the rest. And such is the food with which this Bar Association would satisfy the law-givers of the State! The following two papers may help to assure over-timid persons. D. D. F.

NEW YORK, February 27, 1888.

Letter of Mr. Creed Haymond, an eminent member of the California Bar:

WASHINGTON, D. C., February 14, 1888. Hon. DAVID Dudley FieLD, New York City:

MY DEAR SIR-I am in receipt of your note inquiring how the Civil Code is esteemed in California, and whether at the present time any dissatisfaction exists there in relation to it.

I beg in reply to state that the question of codification is no longer an open one in California. There is no discussion upon the subject. Codification in that State is an accomplished fact, the propriety of which is no more discussed than is the propriety of the written Constitution.

The Codes have worked well in California, and have been so acceptable that the drift of public opinion is strongly in favor of the establishment of a permanent Law Commission to which all bills introduced in the Legislature shall be referred for form and style.

The Civil Code of California was passed on the 21st of March, 1872, and went into effect on the 1st of January, 1873. The commission was continued until 1874, and an advisory commission consisting of eminent lawyers was formed and existed during the year 1873, and both commissions during that time examined with great care the Code as adopted, prepared many amendments to it, some of which were to correct clerical errors and others of which went to the substance. Those amendments were adopted by the Legislature of 1874.

From 1874 to 1880 very few amendments were made. Probably during the whole of that time not ten sections were changed, and those changes were chiefly in sections of the Code relating to corporations. At the time the Code was framed there was great excitement in California upon the subject of corporations. and the commission for that reason made no material changes in the laws of that State relating to corporations, but embodied them substantially as they stood in the Code. The changes made were required in order to bring the sections altered into the form of Code enactments.

In 1879 a new Constitution was adopted. The District Courts and County Courts of California were abolished, and a Superior Court, the territorial jurisIdiction of which was limited to the county, was created in the place of the District and County Courts

which had formerly existed. The title of the clerks of these courts was changed from that of clerk of the District and County Courts to that of clerk of the Superior Court. This change in the Constitution necessitated changes in the Code, and all sections of the Civil Code which contained the words "District Court" or the words "County Court," or the words "clerk of the District Court" or "clerk of the County Court" were altered, and the names of the new courts and of the new clerks substituted, and those were about the only changes made in the year 1880. Since 1880 I do not think over ten sections of the Code have been altered or amended.

You will perceive from this statement that in the fifteen years during which the Civil Code has been in force in California, only about a score of sections have been amended by bill originating with members of the Legislature.

The Political Code of California was approved March 12, 1872, and went into effect January 1, 1873. It contains 4505 sections. It treats of the sovereignty of the people of this State and of the political rights and duties of all persons subject to its jurisdiction. It defines the political divisions of the State, fixes the seat of government and the legal distances. It enumerates and classifies all public officers, legislative, judicial and ministerial, and fixes their salaries and duties. It contains the election laws of the State, the laws in relation to the University, of State normal schools and public schools, the laws in relation to the militia and national guard, and to all public institutions; the laws in relation to highways, public order, toll rate bridges and ferries, the general police of the State; the public lands of the State, revenue and taxation; the laws in relation to the government of counties, cities and towns, and in fact covers in its scope the whole civil polity of the State.

Many sections of this Code are necessarily amended at every session of the Legislature. The rate of taxation is fixed, the amount of money to be raised for public purposes designated by amendments to this Code. All changes in the duties of public officers, in relation to their salaries, and all changes in the election or revenue laws and all of the important laws relating to the government of the State are made by amendments to this Code.

From the nature of this Code it attracts more general attention than either of the other Codes, and the people of the State have become more familiar with its provisions. The benefits derived from codification are more easily illustrated by it than by either of the other Codes. Every member of the Legislature has a copy of the Codes upon his desk, and when a bill is introduced amending any section, there is no diffi culty in ascertaining at once what change is proposed in the law. This is done by the simple process of comparing the bill with the section which it is proposed to amend, and the legislator is enabled at a glance to determine whether the change proposed is a proper one to be made.

Our sessions of the Legislature are now biennial and are limited to sixty days. Without a system of codification, and with the statutes of the State scattered through thirty or forty volumes, and badly indexed, it would be impossible to have intelligent legislation at a session so limited in time. Under our system the time is ample. Nearly all of the bills introduced in the Legislature are short, as they are framed in the concise language of the Code and are readily understood. Besides all the other advantages, there is great economy in this. Often the change of a word in one section of the chapter of the Code will accomplish all the purposes of an elaborate bill under the old system of legislation.

I will illustrate this by one case which I now have in mind. The valleys of California are subject to periodical overflow in the winter, and some parts of them to drought in the summer. During overflows domestic animals are often surrounded upon high spots of land and would perish if assistance were not rendered; while during the summer mouths such animals frequently seek the swampy land for water, becoming mired down and would be lost if not assisted.

In 1874 the Legislature, with these facts before them, and willing to encourage persons in their attempts to save animals so situated from drowning or from starvation, desired to enact a law which would give to the persons who saved any such animals a lien upon them for the value of the services and the cost of food in that behalf. Consequently an act was drawn and presented to the Legislature providing for the case. It covered several printed pages, and provided in detail the mode and manner of proceeding to fix and enforce the lien.

The committee to whom this bill was referred accomplished all the purposes of the bill by an ameudment to section 3136 of the Political Code. That section was part of chapter 6 which related to lost and unclaimed property and which provided the mode and manner in which the finder of lost, or the holder of unclaimed property might establish a lien upon it for services rendered or material used in preserving it.

Section 3136, the first of the chapter, provided in substance that if any person find any money, goods, things in action or other personal property of the value of ten dollars or more, he must inform the owner thereof, if known, and make restitution without compensation further than a reasonable charge for saving and taking care thereof. But that if the owner was not known, the finder himself within five days should make an affidavit before some justice of the peace in the county, stating when and where he found or saved such property, and describing it, etc. To accomplish the intention of the Legislature in relation to domestic animals, the section was amended by inserting after the phrase "if any person find any money, goods, things in action or other personal property," the phrase "or shall save any domestic animal from drowning or from starvation."

I could give many illustrations of this kind showing the ease with which amendments are made, and the vast amount of time and labor which is saved by the existence of a Code. But this probably will be a sufficient illustration of one of its useful purposes.

Editions of the Codes have from time to time been printed in cheap form. Nearly every justice of the peace and notary public in the State has a copy. Copies will be found upon the desks of the merchant and the banker, in the offices of corporations and in the editorial rooms of nearly every newspaper. Business men become familiar with their provisions, and are thereby enabled to test whether the advice given to them by counsel upon business propositions covered by these Codes is sound or not. Public officers have the law relating to their offices before them in plain and concise form, and cannot well mistake their duties. And I undertake to say that the people of California have a very much better knowledge of the laws of their State than do the people of any State where the laws have not been put in Code form.

The Pacific States and Territories have, since 1873, in a great measure followed the example of California, and have codified their laws, in whole or in part, with the same good results which have been obtained in California.

Permit me to say, in conclusion, that while the people of California have appreciated and profited by

your work in the cause of law reform, they cannot fully sympathize with you in your regrets that the people of the State of New York were not the first of English-speaking people to supplement a written Constitution by written laws; for, had the people of New York done so, the people of the State of California would have been deprived of the credit and honor which now in that behalf belongs to them.

With kind regards, I am very sincerely yours, CREED HAYMOND.

AN OPINION OF THE PRESS ON THE CIVIL CODE WHERE IT HAS BEEN TRIED. CALIFORNIA TESTIMONY FOR CODIFICATION AFTER TWELVE YEARS OF ACTUAL EXPERIENCE.

[San Francisco Alta, California.]

An animated discussion has been in progress in New York, in and out of the Legislature, over the adoption of the Field Civil Code, which is substantially the same as the Civil Code of California. In 1872, California adopted a complete set of Codes - Political, Civil, Civil Procedure and Penal - based on the Codes prepared for the State of New York by a commission, of which David Dudley Field was the leading member. But these famous Codes have had a fate which verifies the proverb that a prophet is not without honor save in his own country. It is true the Code of Civil Procedure was adopted by New York on the 1st of July, 1848, but the Code of Criminal Procedure did not go into effect until 1881, and the Penal Code in 1882, while the Civil and Political Codes have not yet been enacted in the State of their birth. Meantime these Codes, in letter or in spirit, have been widely adopted abroad. Twenty-three States and Territories have in this way approved of the Code of Civil Procedure, and nineteen of the Code of Criminal Procedure. But the influence of the New York Codes has not been confined to the United States. In British India, several of them have been closely copied, while the Judicature Act of 1873 in England and Ireland is based on the New York Code of Civil Procedure. The New York Tribune recently undertook to ascertain the sentiment of the bar of that State regarding the adoption of the Civil Code. Out of 2,000 lawyers addressed, 640 expressed themselves in favor of codification and 569 against it, while 364 were in favor of the Field Code and 745 against it. But lawyers are not the only class, or the most numerous to be consulted about such a matter as codification. Independent of the courts and the lawyers there is a benefit conferred by Codes which is of no mean importance. This is the accessibility and comprehensibility of the law to the people. The law should be in such a shape that the mass of the people can know something about it. There will be just as much need for the professional lawyer when the law is codified as there was before, but it is nevertheless a great convenience and satisfaction to the property-owner and the workingman to be able to learn for himself something about his rights as established by the laws under which he lives. It is a necessary part of the political education of the people. In California this benefit has been greatly restricted by not giving the Codes a wider circulation. It is one of the strangest things of the day that some enterprising publisher has not long before this brought out an edition of the California Codes for popular circulation. Printed in small type and bound in a single volume, our Codes could be sold for $1.50; and at that price there are 30,000 farmers, mechanics, tradesmen and professional men who would desire to possess a

CORRESPONDENCE.

MR. HORNBLOWER DOES SOME MORE FIGURING. Editor of the Albany Law Journal:

I quite agree with you "that an ounce of experience is worth a ton of theorizing." Will you pardon me for sending you an ounce? In 1886 there were 444 cases reported in the State of California. In the same year there were 347 reported in the State of New Jersey. I have taken the year 1886 because it is the last year for which the reports are complete in either State. The Population of New Jersey, according to the census of 1880, was over 1,100,000, while the population of California, according to the same census, was less than 900,000. The rate of increase in California during the past ten years has been no greater, I believe, than that of New Jersey, if as great; but I may concede for the purpose of this comparison, that the population of California has become equal to the population of New Jersey at the present time. Of the 444 cases reported in California, all are cases in the Supreme Court of the State. Of the 347 cases reported in New Jersey, 167 are cases in the Court of Chancery and the Prerogative Court, and only 180 in the two appellate courts, namely, the Supreme Court and the Court of Errors and Appeals. So that we have in New Jersey 180 reported cases on appeal against 444 in California, with a population practically identical. Is California still in a "formative period?" And if so, how long is it to continue forming? The Codes of California would certainly seem to require a good deal of "formation."

Trusting that I am not unduly intruding upon you by asking the publication of this letter, I remain, Yours respectfully, W. B. HORNBLOWER.

NEW YORK, Feb. 29, 1888.

CHECK TO MISTAKEN ORDER. Editor of the Albany Law Journal:

I was much interested in the question started by your correspondent on page 183, current volume, and commented upon editorially, page 165. But if the proper distinction be noticed in the statement of the case, I do not see how lawyers can differ as to the law.

If I draw my check upon my banker in favor of E. J. Jones, and he presents it at the counter, and gets the money, I must and ought to bear the loss. The bank has nothing to do with my intention, and has no business to inquire. It cannot presume that I meant J. E. Jones, and refuse to honor my check. It pays to the man named. The check is genuine, and bears my well-known signature. To hold that the bank should lose the money under this state of facts would be preposterous. But apart from the injustice and absurdity of throwing the loss upon the bank rather than upon the drawer of the check, there is a wellsettled legal principle that at once decides it. It is this: that where one of two inuocent persons must suffer a loss, that one whose inattention or mistake caused it is the one who must bear it.

But when we add this further fact to the case a very different question may arise. "The party cashing the check for Jones took fifteen per cent off the face for cashing it." With this additional information, the natural inquiry arises: Did the bank act in good faith in paying the check? Was not this offer to take so much less than the face of the check enough to put the bank upon inquiry? Would anybody but a fool or a knave discount a good check, honestly obtained, at the rate of fifteen per cent? That would be for the jury to say,

FOWLER'S SUPPLEMENT TO THE REVISED STATUTES OF NEW YORK.

in the courts of the United States, England, Canada, Ireland and Scotland, including the cases relating to insurance in mutual benefit societies. By John R. Berryman. Chicago: Callaghan & Co., 1888. 1 vol. Imp. 8vo. pp. lxxv, 877.

The title completely describes the work. It seems to be very well done, and the abstracts are unusually full. It will serve as a remarkably good substitute for many volumes of reports. It is well printed.

BATES ON PARTNERSHIP.

This work, by Clement Bates, of Cincinnati, and published by T. H. Flood & Co., of Chicago, forms two volumes of 1234 consecutive pages of text, with a table of cases of 193 pages. The index covers 68 pages. It will be seen that the work is of great dimensions, and of importance enough to justify a more careful examination than can be given by the editor of a weekly journal. Mr. Bates says in his preface that he has been at work on this treatise for many years-at first with no idea of publishing-and that he has personally examined nearly 11,000 cases. His arrangement is by sections, with "the more fundamental, constant or ultimate principles in a comparatively prominent type, and offering illustrative, subordinate, qualificative or exceptional matter in a less conspicuous form, in proportion to its value." The references are in the usual form. This treatment steers between the ordinary form of sectional treatment and the treatment by rules or propositions with illustrations and authorities. In our opinion it is a better mode than that pursued-to cite an eminent example -by Mr. Benjamin in his work on Sales. A cursory examination leads us to believe that the treatise is of substantial and peculiar merit, and as the last utterance by a text-writer on this important topic, it must be of indisputable value. We much prefer it to an annotated English work. The author's undoubted industry is admirable, and he exhibits intelligence and discrimination. There can be no hesitation in recommending the work. The publisher has made a comely book.

BARDEEN'S COMMON SCHOOL LAW. Common School Law. A digest of the provisions of common and statute law as to the relations of the teacher to the pupil, the parent and the district. With 500 references to legal decisions in twenty-eight different States. Fourteenth edition, entirely rewritten, with references to the New York Code of Public Instruction, edition of 1888. By C. W. Bardeen, editor of the School Bulletin. Published by the editor, at Syracuse, N. Y.

An excellent and admirable little manual of about 120 pages. It seems to contain every thing that has been decided, and the matter is presented in an interesting manner. That is because the compiler is an editor.

SMITH'S MERCANTILE LAW.

The basis of this "pony" volume is John William Smith's English work, and it has been annotated, ex

in connection with the seventh edition of the Revised Statutes, the history and condition of the entire general statutory law of the State, from the publication of such edition down to the close of the legislative session of 1887, and also the judicial decisions thereon, embraced in vols. 82-104 N. Y.; 24-44 Hun; 58-67 How. (N. S.); 1-18 Abb. N. C.; 1-7 N. Y. State Rep'r; 1-2 Edm. S. C.; 46-53 Super Ct. (14-21 J. & S.); 9-13 Daly; 4-5 Redf.; 1-4 Demarest; and 1-4 N. Y. Crim. Rep. (C. & N.); together with a supplemental index, and also a table of the general statutes of 1882-1887, briefly stating the subject of each statute, and the page here its subsequent history is given. By J. C. Fowler. Albany: Matthew Bender, 1888. Pp. 453.

A manual of very considerable labor, and of convenience to practitioners in this State. It is the key of the statutory history since January 1, 1882. It is judiciously arranged as to typography, and must form a very useful tool. A circular has been issued by a publishing house announcing an eighth edition of the Revised Statutes, right on the heels of this supplement. Such an edition certainly is not needed, now that this supplement is at hand, and it is heaping an unnecessary burden on the profession to put one out.

NEWMARK ON BANK DEPOSITS.

The Law Relating to Bank Deposits, embracing the decisions concerning deposits in commercial, savings and national banks, and checks, pass-books and certificates of deposit etc. With a survey of the law of deposits in general, and of banks in general. By Nathan Newmark. St. Louis, Mo.: Wm. H. Stevenson, 1888. Pp. xvi, 229.

This is an intelligent manual, addressed to a special subject of practical and frequent interest. It is no doubt convenient to have an enlarged and separate treatment of the subject unembarrassed by the other topics of a general treatise on banking, and the treatment given seems to be thorough and intelligent.

Judgment affirmed with costs-David D. Acker et al., appellants, v. Charles E. Leland et al., respondents; Mary H. Shelby, respondent, v. Sun Printing and Publishing Association, appellant; Michael Hickey, respondent, v. David D. Acker et al.. appellants. Order affirmed with costs Charles A. Clegg, respondent, v. Andrew J. Aikens et al. (Aikens Newspaper Union), appellants; People, ex rel. Thomas Casey, appellant, v. James Jordan, police commissioner, etc., respondent.- Appeal dismissed with costs--Cora E. Fiske, respondent, v. Charles W. Bardeen, appellant.-Judgment reversed, new trial granted, costs to abide the event-Edward Donnelly, respondent, v. Brooklyn City Railroad Company, appellant.