MECHANICS' LIEN.

1. Recovery of entire claim when lien is for but a portion: causes of action, when entire: husband and wife. · Under the Mechanics' Lien Law of 1863, plaintiff instituted proceedings to foreclose a lien, filed by plaintiff, upon premises owned by the defendant, a married woman, or in which she held an equitable title. The claim was founded on account for labor and materials done and furnished at different dates.

Held, that under the decision of the general term in Hubbell v. Schreyer, 7 Alb. L. J. 334, the lien as to any items of this account, that accrued more than three months prior to the filing of the notice of lien expired, and as there was no renewal of any such lien during the pendency of the action in the manner provided by the eleventh section of the act, and within one year after the filing of the original notice, the entire lien ceased and the sole remedy was a personal judgment. But where the court acquired jurisdiction in special proceedings, founded on a lien as to part of the debt, the omission, during the pendency of the action, to renew it, did not divest the court of its original power to dispose of the claims originally brought before it. Under the acts of 1860 (ch. 90) and 1862, (ch. 172), the defendant, though a married woman, is subject, as to such debt, to have her liability enforced against her separate estate the same as if she were an unmarried female, and by section 8 of the latter act her husband is relieved from all responsibility for any contract in respect to the wife's separate estate. While, however, the right of lien for any portion of the debt had expired when judgment was rendered, the claim against the defendant still subsisted and was in no way affected by the fact that the lien that might, if renewed, have been foreclosed, was but for a part of it. There was such an entirety in the account for the continuous items of service, as a personal debt, that but one action could have been brought upon it (16 N. Y. 468, cited), and there is no inconsistency in the entirety of the debt as the subject | of a single action, and the existence of a valid lien but for a portion of it. The recovery of the entire debt growing out of the same tranactions for which the partial lien existed was proper. McGraw v. Godfrey. Opinion by Robinson, J.

Application

3. Defenses: infancy: amendment. was made during the trial to permit the additional defense of infancy at the time of the occurring of the alleged liability to be set up. It did not allege subsisting infancy to impair the validity of the judgment. Held, that such an amendment was not a mere matter of form" (act of 1873, ch. 513, § 5), but substantially changed the defense, and in any case its allowance was discretionary with the court and not reviewable on appeal. Ib.

PENAL ACTS.

Construction of statutes: restrictions on legislation. — This is a motion for a reargument made by the appellant, who presents the following points: First. That the legislature has no authority to pass an act penal in its nature, applicable only to a particular locality. Secondly. That the penalty imposed on appellant is not within the act of 1871 regulating the storage, etc., of petroleum.

Held, that the limit upon the authority of the legislature must be found in the constitution; it cannot be supported by other authority. The fourth section of the act of 1871 (ch. 472) prohibits, among other things, the keeping upon sale, or on store for sale, in the city of New York, of any pretroleum, etc., that shall emit inflammable vapor at less than 100° Fahrenheit; it also provides a penalty for selling any such articles without a license, of $50. By section 11 a penalty of $50 is imposed for a violation of any of the provisions of the act. Therefore, the keeping for sale and storing petroleum emitting such inflammable vapor is subject to the general penalty of section 11. Motion denied. Board of Fire Commissioners v. Smith, Opinion by Robinson, J.

PLEADINGS.

Conforming pleadings to proof, on appeal. —The appellate court may, on appeal, conform the pleadings to the proof for the purpose of upholding the judgment, but not for the reversal. 25 N. Y. 265; 11 id. 237; 18 id. 515; 3 Abb. 82; 24 Barb. 288; 6 Bosw. 748, cited. Peabody v. Speyers. Opinion by Robinson, J.

PRACTICE.

Misjoinder of parties: section 173 of Code is applicable to justices' courts: review of cases: amendment. — In an action in a district court on an alleged joint contract, where the defense was established, that one of the parties defendant "acted as agent only," the justice, instead of striking out his name as a party defendant, gave judgment of dismissal as against him and rendered judgment against the other defendants, who, upon appeal, insisted, as there was a misjoinder of parties defendant, the complaint ought also to have been dismissed as against them, and for this they rely upon the common-law rule, that a misjoinder of parties plaintiff or defendant is fatal to an action ex contractu (Grah. Pr. 94, 95), and that such error is not cured by any of the provisions of the Code applicable to the subject.

Held, that by section 64, subdivision 11, applicable to justices and district courts, "the pleadings may be amended at any time before the trial, during the trial, or upon appeal, when by such amendment substantial justice will be promoted;" also, that sections 173 and 366 sustain the same view, the latter section authorizing the appellate court to "give judgment according to the justice of the case, without regard to technical errors and defects which do not affect the merits." The position assumed by appellants, that the rule of the common law prevails as to justices and district courts, and that section 173 is not applicable to proceedings therein, is warranted in Gates v. Ward, 17 Barb. 424; Webster v. Hopkins, 11 How. 140; Ackley v. Tarbox, 29 Barb. 421; Gilmore v. Jacobin, 48 id. 336. The last case, decided in 1867, however, omitted any notice of Ackley v. Tarbox, supra, on appeal in the court of appeals (31 N. Y. 564), decided in 1864, where it was held that section 173 was applicable to such proceedings, and a misjoinder of a plaintiff might be cured by striking out his name before or after judgment. To the same effect is the holding of this court in Lowensten v. Baer, decided in June, 1868. For these reasons, and also under the terms of a stipulation of the parties, the judgment is affirmed. Lowe v. Rowell et al. Opinion by Robinson, J.

PRINCIPAL AND AGENT. See Husband and Wife; Mechanics' Lien.

PRIVITY OF CONTRACT.

Counter-claim: landlord and tenant: right of successive tenants. Plaintiffs, being tenants of certain premises under lease to May 1, 1868, in March of that year, by a written bill of sale, sold to defendants, who had procured a lease of the same premises for a succeeding term, a quantity of machinery deliverable on or before the 1st of May, 1868. In an action for certain other goods sold to defendants by plaintiffs, defendants set up a counter-claim, not for use and occupation, but upon an alleged agreement of plaintiffs to surrender at that time, to defendants, both the chattels sold and the possession of the premises, and for damages sustained through its breach by non-surrender of the premises.

Held, that no privity of contract existed between the parties as successive lessees, and whatever use the plaintiffs made of the premises, for a few days after the termination of their business, was either a trespass or under license. Defendants had no privity with nor any rights under plaintiffs' contract with the landlord to surrender possession. The alleged agreement being in no way supported by the written agreement for a sale of the machinery, and the fact of its existence being controverted by proof, no right of counter-claim grew out of the agreement of the preceding tenants with the landlord to surrender possession on the 1st day of May. Stitt v. Bixby. Opinion by Robinson, J.

REFERENCE.

1. Report of referee: variance of testimony: referee's fees: evidence. - Plaintiffs appealed from a judgment entered on report of a referee. The action was brought to recover compensation for professional services claimed to have been rendered at the request of defendants in reference to the mental condition and property of defendants' brother, an alleged lunatic. The referee found, as matter of fact, that one of defendants, Frederick M. Peyser, did not jointly with the others, parties defendant, retain or employ plaintiffs, and judgment was accordingly entered against the plaintiffs for defendants' costs and disbursements.

Held, that as the testimony of Frederick M. Peyser, on his direct examination, conflicted with that given on his cross-examination, the latter would control; that as the finding of the referee was unsupported by any evidence, the judgment, therefore, should be reversed. Also, held error in deciding that the referee was entitled to $5 a day for services. In the absence of an agreement in writing a referee cannot lawfully charge more than $3. Code, 613; Watson v. Gardiner, MS. opinion, Court of Appeals; Shutty v. Whitney, 9 Abb. 71, cited. Semble, A memorandum upon the referee's minutes of the agreement to pay the compensation claimed would be a sufficient compliance with the requirements of the Code. Townsend v. Peyser. Opinion by Loew, J.

Ex-Judge Doolittle, formerly justice of the supreme court of this State, is in Paris.

John H. Price has been nominated for clerk of the court of appeals of Maryland by the Republicans.

The President has appointed James B. C. Drew United States Attorney for the northern district of Florida.

BOOK NOTICES.

Questions and Answers for Law Students. By Edwin Baylies, Counselor at Law. Albany: William Gould & Son, 1873.

The plan and execution of this work are excellent, and we most cordially commend it to all law students. It covers the general principles of the more important titles of the law, and gives a very fair outline of the practice under the Code.

As a memoria technica, we know of no better book for the student of to-day. It will serve to call up and revive the half-forgotten principles of the text-books, and its arrangement in the form of questions and answers will greatly aid in impressing those principles upon the memory. We advise every student to go through it carefully at least twice before presenting himself for examination.

Abbott's New York Digest. New Edition; volume 3. New York: Baker, Voorhis & Co., 1873.

This volume covers the titles between "Evidence" and Insurance," both inclusive. In the matter of convenience and accuracy there can be no question as to the superiority of this edition over the old edition and its supplements. Overruled and reversed cases, and cases superseded by statutes have been eliminated. Affirmed cases have been re-digested and the law given as held in the appellate court, while all the cases of current value have been brought together under one alphabet of subjects. While the old edition may serve those whose time is not valuable, the busy practitioner will find the new edition indispensable.

The Commercial Law Register, a Manual of the International Merchants' Protective Law Association, by S. F. Kneeland, Counselor at Law, containing a list of the law members of the association, with their home testimonials, and a complete synopsis of the State laws of the United States and Dominion of Canada, relating to commerce, and other matters of interest to merchants, manufacturers and the legal profession. Albany: Parker & Herrick, business managers, 1873.

With such a work at hand, a lawyer ought to have very little difficulty in securing, what is so often needed, a prompt and trustworthy legal correspondent in almost any part of the country, and at a definite and reasonable compensation. The lawyers selected of whom we have personal knowledge are, without exception, honorable, capable and reliable men, and the home testimonials given in connection with all of thém are sufficient guaranties of their character and standing. The terms for collections are given, and each correspondent is limited, we presume by agreement, to such terms.

Reports of the decisions of the Court of Appeals of the State of New York not heretofore reported under official sanction, arranged alphabetically with notes and references to subsequent decisions and legislation. By Austin Abbott. Díossy & Company, New York. Vol. 2.

On the publication of the first volume of this work we took occasion to say that we doubted whether the profession would deem this republication of so many of the cases already reported in Keyes, justifiable. This remark, without further explanation, may be calculated to do the present series injustice.

We have been frequently called upon to show the errors and the dangers of relying upon Keyes' reports (1 Alb. L. J. 265, 303, 339; 2 id. 207), and to show that in some cases dissenting opinions had been reported by Keyes as the opinion of the court. But recently Chief Justice Church was called upon to consider one of the cases, to which we had referred, of this class (1 Alb. L. J. 265), and to say that it clearly was not good law.

Foote v. Bryant, 47 N. Y. 544. It is apparent that the report in Keyes must have misled the counsel in the latter case and imposed upon the court the labor of considering the bad law thus promulgated. Mr. Abbott, in the present volume, reports the case correctly as he does in this and the preceding volume, several of the cases pointed out by us.

The reason why we doubted the propriety of republishing so many cases already reported was, that we did not believe the profession ought to be called upon to purchase another set of reports. Mr. Abbott, in the present series, has performed his work so well that we think most of those who can afford to do so will be called upon to purchase it. It contains several cases never elsewhere reported, corrects many misreported cases calculated to mislead, and his notes of more recent cases and of cases not referred to in the opinions, add very much to the value of his volumes. Lawyers who have not purchased Keyes' reports will not understandingly do so, but will take Mr. Abbott's instead of them. It is true Keyes' are sold at a smaller price, but, in comparison with Mr. Abbott's, they are not only utterly valueless, but are calculated to and will constantly mislead. A poor book is expensive at any price, while a good one, at reasonable figures, will win its way to popular favor. While opposed to the great accumulation of reports there are circumstances which justify them.

We can hardly imagine a stronger combination of such circumstances than the miserable and disreputable manner in which Keyes' reports were foisted upon the profession and the courts. They are the decisions of the highest court of our State, and if Mr. Abbott or his publishers can succeed in replacing them with his, it will be a merited rebuke to the publisher of Keyes, and will certainly do much to rescue our court of highest resort from the odium cast upon it by the contemptible manner in which its decisions were at one time given to the world.

PRIZE ESSAY UPON INTERNATIONAL LAW. The following are the conditions of the prize of £300 offered by his Excellency Senor Don Arturo de Marcoartu, through the Social Science Association, for the best essay on the following subject: "In what way ought an international assembly to be constituted for the formation of a code of public international law; and what ought to be the leading principles on which such a code should be framed?"

I. Competitors to send in their essays on or before June 1, 1874, under cover, with motto on the cover, and a sealed cover with the same motto containing the name and address of the author.

II. The essay may be either in English, French or German, and should have with it an index.

III. The adjudicators will be appointed by the executive committee of this association, and they will be selected so as to form a body having an international character. The decision will be by the written vote of a majority of the judges.

IV. If, in the opinion of the adjudicators, none of the essays are of sufficient value, the sum named will not be awarded, but the donor will offer the same prize of £300 for further competition.

V. The adjudicators shall have power to give one prize of £300, or two prizes, one of £200 and one of £100. VI. The donor to be entitled to the copyright.

ENGLISH NOTES.

Lord Lisgar, late governor-general of the Dominion of Canada, will preside over a commission appointed to inquire into the salaries and expenditures of the courts, and offices pertaining thereto, in Great Britain. The London court of aldermen, after a thorough investigation, have come to the conclusion that the charges of bribery against the warders of Newgate, in connection with the plot for the escape of the Bank of England forgers, are unfounded. The Americans who were arrested for attempt to bribe have been discharged, and the warders restored to their duties. Edwin James, the London ex-barrister, is to be invited to contest Marylebone at the next election - a borough which he previously represented in two parliaments. - The receipts of the court of chancery for the year ending March 31 last, were 241,6461. 6s. 7d. - Lord Westbury left a fortune of £300,000, besides a large estate in Italy, and some lands in England. - - It is thought that by the end of the long vacation, the hearing and general health of Baron Martin will be so much improved as to render his retirement from the bench unnecessary. The Lord Chancellor will preside at a banquet to be given in Oxford on the 22d prox., by the Oxford Union Society.

LEGAL NEWS.

James Ross Snowden, Esq., for twelve years prothonotary of the supreme court of Pennsylvania, has resumed the practice of the law at Philadelphia.

Colonel Mallory, who is in charge of the signal service department during the absence, in Europe, of Gen. Myer, was a lawyer in Philadelphia before the breaking out of the rebellion.

Senator Sumner, in a recent letter to Mr. H. Richards, a member of the British parliament, congratulates that gentleman on the success of his motion regarding international arbitration in the house of commons, and says: "I find in your speech grand compensation for the long postponement to which you have been constrained. It marks an epoch in a great cause. I know you will not rest. But this speech alone, with the signal result, will make your parliamentary life historic. Surely Mr. Gladstone acted under some imagined exigency of politics. He cannot, in his soul, differ from you. Honoring him much, I regret that he has allowed himself to appear on the wrong side. What fame so great as his if he would devote the just infilu. ence of his lofty position to securing for nations the inappreciable benefits of a tribunal for the settlement of their differences."

The Albany Law Journal.

ALBANY, SEPTEMBER 27, 1873.

of Statute Law," i. e., "Lex Scripta" and "Lex non Scripta," the Hebrew "Tora she Bicsao" and "Tora She Bal Peh."3 The entire Roman Civil Law is of the character lex non scripta, so in the French" Droit Common," the German, "Gewein Recht," and of

HISTORIC LAW.

There is an existing tradition that the Creator commanded Adam to see that justice be administered. Abendanas Discourses, etc., London, 1706.

We can deprive this idea of the oriental drapery of language and assume it to express that Law is coeval with man.

1. The "Science of Law" in its widest signification, in my opinion, rests on the appreciation of uniform results from mere thoughts upon the conduct of an aggregation of individuals or of an individual person in the political organization called a Government. In the study of this Science we find a basis in theoretical causes only producing at one time and within certain territorial limits, a rule, which simply by changed reasoning or mere will at another period, or, at the same time, but in different territory, may be totally reversed. Take, for instance, the fact of the killing of a human being, its definition as an offense and the punishment thereof, or the status of a person under a given age, or a female in a condition of matrimony. In no other philosophical or speculative science will the results of a given cause be less certain. All the exact sciences on the contrary take their initiatory point from facts, demonstrate their unvarying like effect and follow them in facts to their ultimate conclusion. The study of our science can properly be considered only as part of the study of the continuity of human thought.

2. The most exact, absolute and abstract meaning of the word "Law" simply represents a rule operative in the Present, but conventionally it is also applied to designate rules of the Past. In this respect other languages possess a richer vocabulary. The terms "Lex," "Loi," "Gesetzkunde" are not convertible with "

Jus," "Droit," " Rechts Wissenschaft." "Jus est ars aequi et boni" says Ulpian.' We have adopted into our language the word "jurisprudence" and allow its general sense to represent also the science of Legislation, but its meaning in Latin is somewhat different. "Jurisprudentia est divinarum at que humaniarum rerum notitia justi atque injusti scientia." The ordinary meaning of the words "Common Law," "Equity ""Civil Law" indicates only some subdivision of local jurisprudence, though text writers like Blackstone have treated them as if they were of different subjects or different systems. The proper division, however, is into "Statute Law" and "General Rules not passed into, but having equal authority

1. Ulpian L. 1. See Muhlenbruch's Studium der Pandecten. Vol. 1, p. 3, n. 5.

2. Cicero de offi. I 43.

116

It is a misnomer to call that rule "Law" which in the same jurisdiction and at the same time is revoked or modified by another rule or law. In England courts originally instituted for general purposes would not or could not assume jurisdiction of the whole subjectmatter, and by this arbitrary division created branches of study not recognized in other countries for in no other country than England, its dependencies and the United States, is a professional man considered entitled to distinction from merely being either a good Common-Law or Equity Lawyer. In all other countries the Lawyer may exceptionally arrive at fame as an orator or advocate, but among the learned he is esteemed only for erudition in the codes and Corpus Juris as a complete system. "Omnium Rerum magnarum atque artium scientiam." It is commonly believed that our rules of "Estates" in land originate with the Common Law of England. I think that "Wilkins' Leges Anglo Saxonica," the great authority of the English Laws before the Conquest give but little light on this subject. Littleton may be accepted as the authority. Mr. Humphreys, in his "Observations on the actual state of the English laws of real property, etc., London, 1872," title ix, part 1, "of the sources of the laws of real property," does not name either Littleton or Fleta or Bracton. Nevertheless the origin of fiefs was in France. The Normans, the conquerors, brought their existing laws with them, supplanted the Saxon, and being the dominant power preserved what was the "Coutume de Bretagne" and "Coutume Normande" into incorporation into the English Jurisprudence, and therefore Mr. Dupin refers to Houard's "Ancient Laws of France, preserved by the English Common Law (Coutumes Anglaises), collected by Littleton," and to his "Coutumes AngloNormandes" as instructive, and to be a part of the library of a French Jurisconsulte. Authorities much more accessible to the general reader are the sacred volumes of the Pentateuch, which gives us history of

3. Q. As to the true meaning of "pin" by R' Jehuda Hallevi, translated by Leeser "the Engraven Law, "Ley Esculpida" in Portuguese. Also of "Suntra," Hindoo expression to designate the "Eternal Traditional Law."

4. The "actio prohibitoria" was a settled civil law remedy where a party ex debito justitia was entitled to an injunction to restrain an infringement of rights to real property. There was such an equitable action in the Chancery. 1 Spen. Eq. Jur., etc., pp. 668-671.

5. See Townshend's Ram on Legal Judgments, p. 60, a nd Broom's Legal Maxims. Legem respectat Equitas" and “Equitas Sequitur Legem."

6. Dupin's Lettres sur L'Etude d' avocat, vol. 1, p. 20. "The Common Law includes those principles, usages and rules of action applicable to the government and security of persons and property which do not rest for their authority upon any express and positive declaration of the will of the Legislature." 1 Kent's Com. 472.

Townshend's Ram Legal Judg. p. 37.

7. Dupin's Lettres, etc., vol. 2, p. 191, Nos. 737, 738.

118

early conveyances of "estates" in land. The first is an instance in which for a money consideration by livery of seizin, "The field and the cave that is therein," was conveyed for a possession. The next describes the gift of an allodial tenure acquired by pedis possessio only: "To him I give the land that he has trodden upon and to his children." The third is of a formal conveyance in fee of an estate of inherittance, absolute by deed, signed, sealed "according to law and custom," witnessed and delivered by a party in possession to the party next entitled, "for the right of redemption is thine and the inheritance is thine." 10 Blackstone "quotes this last citation as a very remarkable instance not only of the attestation by "seal," but also of the other usual formalities attending a Jewish purchase, but he is silent as to the quality of the estate conveyed and to legal requirements of the mode of conveyance, "according to law and custom," which comprised the signing, sealing, witnessing, acknowledging and delivery of a conveyance as required by the statutes of almost all the States of the Union. I also doubt whether the denomination of a deed as Syngrapha is exact. A precedent of a "Zvxypadǹ" in totedem verbis is to be found in the oration of Demosthenes against Lacritos. It is a strict contract, acknowledging an indebtedness of three thousand drachmas Athenian silver, for which it pledges cargo outward bound of a twenty-oared galley, out of the proceeds of which cargo the loan is to be repaid. It stipulates the right of the lenders, in case of default of payment as provided for, to take possession of and sell the merchandise. It provides for contingencies of jettison (jactura) and of hostile detention, and for reshipment to Athens in case the cargo cannot reach the port of destination. It gives a lien for any deficiency on the joint and separate property of the debtor's "de omnibus eorum bonis tam terrestribus quam nauticis." It refers to a prior interest, bearing acknowledgment of the debt of the parties, and concludes with the formula: "In his rebus

προσβολη.

text.) In Demosthenes' oration against Dionysidorius, reference is made to a syngraph, but neither its form or contents is set out at length.13 I have arrived at the belief that the technical name of a conveyance of real estate in the Greek language was It was the unquestioned word used in the Talmudic law for such conveyance, "Prus Bus," derived from the above Greek word.14 It was a written instrument, which had to be executed and acknowledged by the grantor before a competent judicial authority.15 On the other hand Gneist asserts that the term Σvvygaon denotes a technical contract by consent of all parties. 16 Mr. Washburn, in his treatise on real property, gives countenance to a belief that mortgages were invented by the Jews," while Blackstone speaks of them as dead pledges." I have it, however, from excellent authority that our present form of mortgage (excepting the power of sale required by our statute) is a true translation of the "pactum fiducia" of the Roman law prior to the Pandects, and that their legal force and effect were the same.18 Much speculation has been indulged in as to the origin and history of drafts. English commentators" refer to them as originating in the fourteenth century, among the Jews. A French author believes them to be identical with the Lettres de Foires and Litteræ Nundinales. Another thinks he can trace them to the sixth century.21 The earliest mention of drafts which I have been able to trace (though in one of the orations of Demosthenes he speaks of a verbal and written order on a banker for the payment of a deposit), occurs, however, in the history written by Prof. Jur., Dr. Hubschke, of Breslau, of the claim of Cicero against Dolabella." According to this account,

13. It has very recently been again doubted, whether these speeches can be ascribed to Demosthenes, but the fact of their delivery by some other party is conceded. Revue de deux Mondes, June 15, 1873, in notes to pp. 934, 944. 14. Auerbach's j. Obligationen Recht, p. 191. 15. Mishna, B1, Pea, ch. 3, v. 6:

בכסף ובשטר ובחזקה."

three witnesses (Maprupes) and is proved by Archenomides, son of Archadamant, the Anagrysian, to have been delivered to him by all the parties thereto, and to have been acknowledged by them to him as their syngrapt. (I have, for convenience, transcribed from the Latin translation, instead of using the Greek

8. Genesis, ch. 23.

9. Deut. ch. 1, v. 36. In contradistinction to a grant to the Tribes.

10. Jeremiah, ch. 32, v. 9-12. Not noticed in an elaborate essay on seals," 1 Vol. Am. Law Rev. (Boston) pp. 638 and seq.

11. Blacks. Com. Part 2, p. 305, in note. 11a. Ib. p. 296.

12. Demosthenes contra Lacritos, Or. 35. The oration against Zenotherius, Phormion and Dionysidorius are in pari materia in suits on contracts. The oration v. Conon in à civil action to recover damages for an assault and battery. For Callicles is a defense to an action for stopping a water-course. In the exhaustive opinion of PECKHAM, J., in Pixley v. Clark, 35 N. Y. 520, the maxim of aqua curret et debet currere is fully maintained but this oration is not referred to.

Here the "Prusbal" is distinguished from the authentic contract, Shtar, and from mere possession, Chasakah. 16. Gneist. Formelle Vertracge, p. 476.

17. Washburn on Real Property, vol. 1, p. 477 (on the authority of Powell). Unquestionably that pledges of land in possession was known to the Talmud, but though partaking of the hypothecary character were not our mortgages.

18. J. E. Goudsmit, Professor of Roman and Civil Law at the University of Leiden, author of “ Theorie des Pandectes, etc.' 19. Blacks. Com. vol. 2, p. 467.

20. Fremery Droit Commercial, p. 99; and see Pohl's Handelsrecht, vol. 2, introduction to Wechselrecht.

21. Guyot's Repertoire, etc., Francais. "Lettres de Change." We must, however, distinguish between the contract of exchange, the bill itself, and the law concerning liabilities jus cambialis which is surely of comparatively modern origin. In the United States the difference between the "contract of exchange " and its fruit, "the bill of exchange," is not noticed. The "promissory contract (Shtar chob.) is well known to the Rabbinical Law. The word "Rabbi" is analogous to the Greek Bpå Bevs Arbitrator, Distributor of Prizes.

22. Savigny's Zeitschrift fin Historische Rechtswissenschaft, vol. 14, p. 42, and letters of Cicero ad Atticum 15, 16, etc., cited by Hubschke.