« EelmineJätka »
must bear the loss. The important question arises, turn it in specie, or to use it and repay with other
any receipt given for it, nor any entry founded on a valuable consideration, and according of it made upon his books. His bookkeeper, to the evidence in the case, not necessarily conwho carried the key of the safe, sometimes used trary to public policy. It is contended in an able arsmall portions of it in making change, always drop- gument by the counsel for the defendant that the conping into the box tickets showing the amount so with- tract is void as opposed to public policy. This argudrawin, and always replacing them within a few days. ment is based upon the assumption that Beal, who was His habit in this regard was kuown to and acquiesced a prominent member and leader of the then dominant in by both the depositor and depositary. Some party in the nation, sold his influence with our senamonths after the date of the original deposit Cald- tors, and that this contract was given in payment for well's safe was robbed, without any fault or negligence such influence; that in consideration of the payment ou bis part. His own money was lost along with that of the sum therein mentioned, Beal stipulated to exert of Hall and other depositors. Caldwell was not a his personal and party influence upon an officer of the banker, but a merchant, and the deposits belonged to government. And it is claimed that such personal infriends and customers to whom he had not made him- fluence cannot be a matter of bargain and sale to be self liable. The day before the robbery his book. enforced by the courts. He cites an extract from the keeper used $15 or $20 of Hall's money, which not opinion of the United States Supreme Court in the having been replaced, he paid to Hall after the rob- case of Oscanyan v. Arms Co., 103 U. S. 261, in which bery. This suit is brought by Hall to recover the bal- It is said that “personal influence to be exercised over ance of the sum stolen. The right to recover is rested an officer of the government in the procurement of upon the statement testified to by Hall, but denied by contracts is not a vendible article in our system of Caldwell, that at the time of the first deposit it was laws and morals, and the courts of the United States understood and agreed between the parties that the will not lend their aid to the vendor to collect the price money was to be used by Caldwell in his business, if of this article." We fully indorse this language, and he so desired, and that it was received on this basis. we agree in much that was said upon the argument as It is not claimed that Caldwell actually then became to the deplorable effect of corruption in the governtbe borrower of the money, and that the relation of mental service, and the necessity of courts refusing creditor and debtor then arose, but that Caldwell be- in any and all cases any aid to those who are seeking came a bailee of the money, with an agreement to re- to recover the price of their labors as lobbyists, either
before Congress or any department of the govern- enough that such is the tendency of the contract that ment. But the argument does not touch the present it is contrary to sound morality and public policy,
Mr. Beal had a perfect right to be heard before leading necessarily, in the hands of designing and corany officer of the government, or any department of rupt men, to the use of an extraneous secret influence the same, as to the merits of his building as a place for over an important branch of the government. It may the location of the post-office. It is not shown by the not corrupt all, but if it corrupts or tends to corrupt findings or the evidence in the case that he used any some, or if it deceives or tends to deceive some, that improper means to gain his point, or even that he in- is sufficient to stamp its character with the seal of disfluenced any senator or representative in Congress, or approbation before a judicial tribunal.” And to the any officer of the government, to interfere in his be- like effect is Brown v. Brown, 84 Barb. 533; Cook v. half. He went to Washington personally, and while Shipman, 24 Ill. 614; Mills v. Mills, 36 Barb. 474; there secured the location of the office where he Trist v. Child, 21 Wall. 441; Wood v. McCann, 5 Dana, wanted it; but there is not the slightest testimony 366; Frost v. Belmont, 6 Allen, 152; Harris v. Simonthat he used any undue means to accomplish his end. son, 28 Hun, 318; Usher v. MoBratney, 3 Dill. 385, n. ; We cannot presume that he used his personal power, Tool Co. v. Norris, 2 Wall. 45; McBratney v. Chandwhich is said to have been very great, in a corrupt or ler, 22 Kans. 693. The last case cited states the rule unseemly manner, or in violation of any public policy. thus: “ The contract of an attorney for services as For aught we know, he appeared, as any citizen might such, whether the services are reudered before a court, and has a right to do, before the proper office at Wash- a department of the government, or a legislative body ington, and stated the merits of his claim so convinc- is valid, and upon performance of the service a recovingly and conclusively that the location desired ery can be had. The contract of a lobbyist,' in the seemed to be the most proper and available one. Cer- sense in which that term is now used, for his services tainly there could be nothing wrong in this. It is true as such, is against public policy and void. When there is evidence in relation to some of the contracts, there is a single contrect, and the services contracted not in suit, that Beal boasted he could control the for and rendered are partially those of an attorney senators from his State, and that he must have money and partially those of a lobbyist, and blended together to go to Washington to do so; but there is no testi- as part and parcel of a single employment, the entire mony that either one of them lifted a hand or said a contract is vitiated. “That which is bad destroys word in his behalf. And there is nothing to show that that which is good, and they perish together.'” Ore. in the present case he made any such representations Sup. Ct., Oct. 17, 1887. Sweeney v. McLeod. Opinion to obtain the contract. Mich. Sup. Ct., Oct. 6, 1887. by Strahan, J. Beal v. Polhemus. Opinion by Morse, J.
CRIMINAL LAW HOMICIDE INSANITY. - The PUBLIC POLICY - AGREEMENT FOR “LOBBY defendant interposed the defense of insanity to the SERVICES.”—It is against public policy for a person to charge of murder in the first degree, and on the trial hire himself out to perform “lobby services" with the court charged substantially that the test of the members of the Legislature, and a contract for such defendant's responsibility was whether, at the time of services is illegal and invalid. In Powers v. Skinner, the homicide, he had capacity and reason sufficient to 34 Vt. 274, the principle is thus stated: “It has been enable him to distinguish between right and wrong as settled by a series of decisions, uniform in their rea- to the particular act he was doing, and had power to son, spirit and tendency, that an agreement in respect know that the act was wrong and criminal, and would to services of a lobby agent, or for the sale by an indi- subject him to punishment. Held, that it was a vidual of his personal influence and solicitations to proper instruction; and further, held, that the omisprocure the passage of a public or private law by the sion to charge, that if the defendant knew the act to Legislature, is void, as being prejudicial to sound leg. be wrong, but was driven to it by an irresistible imislation, manifestly injurious to the interests of the pulse arising from an insane delusion, he would not State, and in express and unquestionable contraven. be responsible, was not error. The "right and wrong tion of public policy. Clippinger v. Hepbaugh, 5 test" was approved by this court in State v. Nixon, Watts & S. 315; Wood v. McCann, 6 Dana, 366; Mar. 32 Kans. 205. It was there said that “where a person shall v. Railroad Co., 16 How. 314; Harris v. Roof's at the time of the commission of an alleged crime bas Ex'rs, 10 Barb. 489; Rose v. Truax, 21 id. 261; Bryan sufficient mental capacity to understand the nature v. Reynolds, 5 Wis. 200. The principle of these decis- and quality of the particular act or acts constituting ions has no relation to the equities between the par- the crime, and the mental capacity to know whether ties, but it is controlled solely by the tendency of the they are right or wrong, he is generally responsible if contract, and it matters not that nothing improper he commits such act or acts, whatever may be his cawas done, or expected to be done, under it. The law pacity in other particulars; but if he does not possess will not concede to any man, however honest he may this degree of capacity, then he is not so responsible." be, the privilege of making a contract, which it would This test has received the almost universal sanction not recognize when made by designing, corrupt men. of the courts of this country. Lawson Insan. 231-270. A person may, without doubt, be employed to conduct The defendant urges that the instruction is erronan application to the Legislature, as well as to con- eous, because it excluded the theory of an irresistible duct a suit at law, and may contract for, and receive impulse or moral insanity. This question received pay for, his services in preparing and presenting a pe- the attention of the court, and was practically detition or other documents, in collecting evidence, in cided in State v. Nixon, supra, although the question making a statement or exposition of facts, or in pre- was not fairly presented in that case. It is there recparing or making an oral or written argument; pro-ognized as a dangerous doctrine, to sustain which vided all these are used, or designed to be used, either would jeopardize the interests of society and the sobefore the Legislature itself, or some committee curity of life. Mr. Justice Valentine says that “it is thereof, as a body; but he cannot with propriety be possible that an insane, uncontrollable impulse is employed to exert his personal influence, whether it sometimes sufficient to destroy criminal responsibe great or little, with individual members, or to la- bility, but this is probably so only when it destroys bor privately in any form with them out of the legis- he power of the accused to comprehend rationally the lative halls, in favor of or against any act or subject nature, character and consequences of the particular of legislation." In Clippinger v. Hepbaugh, supra, it act or acts charged against him, and not where the acis said: “It matters not that nothing improper was cused still has the power of kuowing the character of done, or expected to be done, by the plaintiff. It is the particular act or acts, and that they are wrong."
Further along he says “the law will hardly recognize special sections relating to such products, damage the theory that any uncontrollable impulse may 80 done to the product alone, and not to the realty itself, take possession of a man's faculties and powers as to is no offeuse within the act. The words of the act are compel him to do wbat he knows to be wrong and a damage "to real property," not “loss to the owner crime, and thereby relieve him from all criminal re- thereof." To hold otherwise would render a person spousibility. Whenever a man understands the na- liable to be convicted of a crime, and sent to bard ture and character of an act, and knows that it is labor for two months, for merely gathering primroses, wrong, it would seem that he ought to be held legally blackberries, or the like, upon proof given of some responsible for the commission of it, if in fact he does actual loss to the owner thereof; whereas the Legislacommit it.” In a very recent case the Supreme Court ture by section 24 has created the penalty of one month of Missouri considered the refusal of the trial court to only for maliciously destroying any cultivated root or charge, that if the defendant obeyed an uncontrollable plant used for the use of man. Can it be conceived impulse springing from an insane delusion, he should that the Legislature intended that for simply gatherbe acquitted. The court repudiated that doctrine, ing mushrooms growing wild in a field and uncultivaand Judge Sherwood remarked, in deciding the case, ted, a person might be liable to two months' hard that "it will be a sad day for this State when uncon- labor, whereas for maliciously destroying cultivated trollable impulse shall dictate a rule of action to our roots or plants used for food of man, he was only to courts." State v. Pagels, 4 S. W. Rep. 931. It is true be liable to one mouth? It seems to us impossible. that a few of the courts have adopted this principle, Q. B. Div., July 5, 1887. Smith, J. 57 L. T. Rep. (N. S.) but by far the greater number have disapproved of it, 265. Gardner v. Mansbridge. and have adopted the test which was given in the present case.
INJUNCTION-BOND-BREACH OF.-A preliminary inLawson Insan. 270, 308. Kans. Sup. Ct., Oct. 8, 1887. State v. Mowry, Opinion by Johnston, J. junction was granted, on an undertaking to pay de
fendant's damages “by reason of the injunction, it TRESPASS - PICKING MUSHROOMS.- - The ques- the court should finally decide that plaintiff was not tion for determination in this case is whether a per- entitled thereto." The injunction was vacated on son who gathers mushrooms growing in their natural motion of defendants, and the action subsequently state in a field, and who does no other damage or in- dismissed for want of proseoution. Held, that this jury, except what may be done by the fact of gather- constituted a breach of the undertaking which entiing and carrying away the mushrooms themselves, can tled defendant to a reference to assess his damages, be found guilty of having "wilfully or maliciously” | There may be good reasons for saying that an order committed any damage, or injury, or spoil, to or upon made, pending the suit, dissolving the temporary inany real or personal property of a public or private junction, by no means determines that the party in nature, within the intent and meaning of section 5:2 of whose favor it was granted was not entitled to it. The the Malicious Injuries to Property Act 1861 (24 & 25 order may be reversed on appeal, or it may be decided Vict., chap. 97). It could not, in our judgment, be on the final hearing, upon the merits, that the party really contended that a person who merely picked obtaining it was entitled to that relief. The facts may mushrooms growing in a state of nature in a field was be essentially changed by proofs subsequently introguilty of maliciously committing injury to real or duced in the cause. So until the main action is finpersonal property; but it is to be noticed that in this ally disposed of, a reference to ascertain the damages 52d section the words are not “wilfully and malici- may be premature. This seems to be the rule estabously,” but “wilfully or maliciously,” and it is said lished in New York in the cases to which we were rethat an offense is created by this section if a person ferred on the argument. Shearman v. New York wilfully commits the act even though he has no malice, Cent. Mills, 11 How. Pr. 269; Musgrave v. Sherwood, or in other words, if he does the act complained of in- 76 N. Y. 195; Benedict v. Benedict, 15 Hun, 305; 76 tentionally and on purpose. To this proposition we N. Y. 600; Palmer v. Foley, 71 id. 106; Johnson v. assent, but the question remains, whether the act com. Elwood, 82 id. 362. “There is no breach of the condiplained of is damage, injury, or spoil to or upon real | tion of the statutory undertaking, unless the court or personal property within the meaning of the act. It finally decide that the plaintiff was not entitled to the was argued that there are only two kinds of property, injunction, or unless something occurs equivalent to real and personal, and if the act complained of was such decision." Palmer v. Foley, supra. “An order not damage to personal property, which in this case vacating the injunction and discontinuing the action it was not, it must consequently be injury to real entered by the plaintiff, is in effect a determination, property within the meaning of the act. To this we or at least equivalent to a determination, tbat the do not assent. The question is, do the words used in plaintiff was not entitled to the injunction granted.” the act creating the offense mean damage, injury, or Mail Co. v. Toel, 85 N. Y. 646. In the case at bar, the spoil to the realty itself, or to the product of the realty cause was never tried upon its merits, nor could it, which may happen to be growing thereon at the time for the reason that the plaintiff failed to prosecute. of the commission of the act. This it appears to me But the cause was out of court with an order upon is the point in this case. In our judgment, the Legisla- the record that the plaintiff was not entitled to the inture, in the group of sections commencing at section 16 junction which he had obtained. We are at a loss to and ending at section 24, deals with the products de know what further decision or determination of that facto growing upon the realty itself as something disc question could be had. As we have said, the cause tinct and apart from the realty. In our judgment, to was out of court beyond recall; nothing further reconstitute an offense within section 52 for committing mained for judicial determination. We do not think damage, injury, or spoil to real property, proof must any of the decisions in New York sustain the contenbe forthcoming of actual positive damage (to use the tion of counsel that the order of reference in this case words of Best, C.J.), to the realty itself, and if as in was premature. In Palmer v. Foley, supra, the dethis case, proof of damage is confined solely to damage fendant bad consented to a discontinuance, and that to the product growing upon the realty and consequent an order to that effect might be entered, which was logs to the owner of such product, no offense is estab- done; and it was held “that this was not equivalent lished within section 52 of the act. There are numer- to a final decision of the court, and that there was no ous sections in the act, as above pointed out, making brench and no right of action.
* It was laid it an offense to damage the product of realty, and in down that there was no judicial determination or our judgment, unless a case is brought within those opinion given upou the merits of the action, or the
right of the plaintiff in the action to the injunction, the reason that Seig & Williams did not share the at the time it was granted, and that it was never fin- losses, and had no control over the business, and were ally determined by a judicial decision. An amicable not held out to the world as partners. It is not claimed and voluntary agreement to discontinue was not tbe plaintiff became security for Barnes & Sons under enough." The case of Dowling v. Polack, 18 Cal. 625, the belief that Seig & Williams were members of such is quite similar to the present case. That was an ac- partnership. Besides this, we find that the business tion upon an injunction bond, brought after dismissal was conducted between the two partnerships in preof the cause on motion of the defendants. The court cisely the same manner after as it had been prior to say: “The suit was dismissed for want of prosecu- the 1st day of August, 1884. The following authorition, and with respect to the particular case, the judg- ties support our conclusions: Richardson v. Hughitt, ment of dismissal had the same effect upon the rights 76 N. Y. 55; Loomis v. Marshall, 12 Conn. 69; Beecher of the parties as would have resulted from a trial v. Bush, 45 Mich. 188; S. C., 40 Am. Rep. 465; Williams upon the merits. It terminated the proceedings, v. Soutter, 7 Iowa, 435; Munson v. Sears, 12 id.172; Rudand by its legal operation and effect set aside and dis- dick v.Otis, 33 id. 402; Mollwo v.Court of Wards, L. R., charged the injunction. It was the final action of the 4 P. C. 419. These citations could be greatly enlarged. court, operating directly upon the injunction, and de- We have examined the authorities cited by counsel stroying the foundation upon which it rested.” In for the appellant, and think they are distinguishable; that case a motion to dissolve the injunction had been but if mistaken in this, we regard the rule in this State denied, but the case is very much in point, as the stat- to be established against the appellant in the cases ute of California is substantially like our own. See 3 cited. Iowa Sup. Ct., Oct. 12, 1887. Clark v. Barnes. Deer. Code & Stat., § 529. We are disposed to adopt Opinion by Seevers, J. the rule laid down in California as to the liability upon the undertaking, founded as it seems to me, on principle and good sense. Wis. Sup. Ct., Oct. 11, 1887.
STATE BAR ASSOCIATION. Kane v. Cusgrain. Opinion by Cole, C. J.
The committee appointed to make arrangements INTOXICATING LIQUORS-CIDER.- Code Iowa, chap.
for the next annual meeting of the State Bar Associa6, tit. 11, $ 1555, wbich defined the words“ intoxicating liquors wherever they occurred in the statute for
tion, to be held at the Capitol, Albany, January 17 the suppressiou of intemperance to mean alcohol, and
and 18, 1888, have so far completed their labors as to all spirituous and vinous liquors, with a proviso ex
be able to announce that they have envited the Hon.
Daniel Dougherty, of Philadelphia, to deliver the anpressly excepting cider made from apples, was repealed by the twentieth General Assembly, and the
nual oration; that the invitation has been accepted;
that Hon. Martin W. Cooke, president of the associafollowing section substituted : “Section 1555. Wherever the words intoxicating liquors' occur in this chapter,
tion, will deliver an opening address; Hon. John
Winslow, of Brooklyn, will read a paper on “ The Colthe same shall be construed to mean alcohol, ale, wine,
lision between the Legislature and the Judiciary of beer, spirituous, vinous and malt liquors, and all in
Rhode Island, or The Trial of the Rhode Island toxicating liquors whatever." Held, that cider made from apples was included in the terms, "all intoxicat
Judge.” Ex-Judge Charles A. Peabody, of New
York, will deliver a memorial address on the late ing liquors whatever.” There can be no doubt as to
Aaron J. Vanderpoel. Assistant Attorney-General the effect of this section. Before its enactment, cider
William A. Poste, of Albany, will read a thesis (submanufactured from apples was expressly excluded from the operation of the prohibition against the sale
ject to be announced hereafter). The reception to be
given the members of the association by Governor of intoxicating liquors. It might lawfully be sold,
Hill at the executive mansion on the evening of the although intoxicating. But the section thus exclud
17th of January will supersede the annual association ing it was repealed by the one in question, and while
dinner. A full programme of the proceedings will the new section does not in express words name it as
soon be published. one of the liquors the sale of which is forbidden, it
H. G. DANFORTH, does, by unmistakable language, bring intoxicating
Chairman Committee Arrangements. liquors of every kind and variety within the operation
ROCHESTER, Dec. 13, 1887. of the prohibition. The words, "all intoxicating liquors whatever," in the first clause, also the closing words of the section, "and all other intoxicating liq
CORRESPONDENCE. uors whatever," are incapable of any other construction; and tbis construction is in accord with the rule
ARREST AND TRIAL OF JESUS. invoked by counsel for defendant, that when particu
Editor of the Albany Law Journal: lar words in a statute are followed by general ones,
The thanks of your readers are due to “ W. J. G." the latter are to be held as applying to persons and
for his interesting article on “The Arrest and Trial of things of the same kind as those which precede. Pot- Jesus." If any desire to read further on the subject, ter's Dwar. Stat. 236. But if it were otherwise, neither I would refer them to two papers contributed by Alex. that nor any other recognized rule of construction Taylor Innes to the Contemporary Review of 1877. would justify us in putting an interpretation on the The first, published in the August number, deals with language which would defeat the manifest intention “The Hebrew Trial;” the other, which appeared in of the Legislature; for it is the duty of the courts, in October, is on “The Roman Trial.” (These articles construing the language of a statute, to adopt that were reprinted in Littell's Living Age for that year, sense which will promote the apparent policy and Sept. 22, and Oct. 3. Mr. Innes refers to the work of object of the Legislature. Iowa Sup. Ct., Oct. 12, 1887.
a learned Spanish Jew, M. Salvador, who in 1822 State v. Hutchison. Opinion by Reed, J.
in the first edition of his work, “ Historie des InstituPARTNERSHIP - WHAT CONSTITUTES AGREEMENT tions de Moise," gave a dissertation to show that the BETWEEN FIRMS.-- An agreement between two firms Jugement de Jesus was according to law, and asserted that one should furnish the necessary money for the and professed to prove that-admitting the facts building of a lot of wagons, and the other do the work, stated in the gospel-the process followed, and the remake the sales, pay back the money to the first firm, sult arrived at, were alike necessary, if the Jewish and divide the profits, does not constitute the mem- tribunal adhered to its own law. M. Dupin (airé), a bers of the first and second firms a copartnership, for distinguished member of the French bar, in a brilliant
treatise, replied to Salvador; but he, as well as Mr. The brief discussion of theory of law in abstracto, Greenleaf (according to Mr. Innes) devoted himself which the author indulges in throughout his first rather to the substantial injustice of the trial thau to chapter, belongs, we conceive, to works on jurispruits form according to the jurisprudence concerned. dence and philosophy only, and has no place in a book lu the third edition of his “Institutions, published in treating of positive law. 1862, Salvador maintains and reprints the whole The various theories of classification, which conclude positions originally laid down by him.
the author's first chapter relating to the philosophy of At the end of his first article, Mr. Innes says: “Our law, are only concerned with the arrangement of some conclusion on the question of Hebrew law must be system of positive law, some corpus juris, and we do this: that a process begun, continued, and apparently not know why they are blended with theories of law finished in the course of one night; with witnesses in abstracto, nor wby they are particularly concerned against the accused who were sought for by the with the “ American theory of government." judges, but whose evidence was not sustained even by The classifications of Kent and Story for instance, them; commencing with interrogatories which He- are purely modal, they have wo earthly relation to the brew law does not sanction, and ending with a de- theories of government of these authors, or to the mand for confession which its doctors expressly for- American system of government. Classification is bid; all followed, twenty-four hours too soon, by a concerned with form, not with substance, and with a sentence which described a claim to be the Fulfiller definite form, not with theories indefinite. of the hopes of Israel as blasphemy-that such a pro- It is difficult to treat a work of this character sericess had neither the form nor the fairness of a judi- ously, for it belongs to the class of pseudo-scientific cial trial.”
books of which the fashionable taste for speculation, He concludes his second paper as follows: “In con- is now bringing us too many. We confess that we see sidering the most famous of all trials from a merely nothing original and nothing lastivg in the work belegal, and indeed formal point of view, we have come fore us, although doubtless the author has read extento some conclusions. We have found that it was a sively, but he has written too 3000. double trial, and that both parts of it were conducted If as we hope he has really succeeded in detecting with a certain regard to the forms of the two most the great theories which segregate the National law famous jurisprudences in the world. In both the of America from the laws of other nations, he has judges were unjust, and the trial was unfair; yet in very skillfully managed to conceal his discovery at both the right issue was substantially raised. And in least in this particular work. both that issue was the same. Jesus Christ was truly condemned on a double charge of treason. He died because in the ecclesiastical council He claimed to be SNYDER'S RELIGIOUS CORPORATIONS, ETC. the Son of God and the Messiah of Israel, and because
Some eight years have elapsed since the first edition before the world-wide tribunal (of Rome) He claimed to be Christ a King."
of this manual by Mr. William L. Snyder, and the R. V. R.
enactments and decisions have now been brought down in a comely volume of some two hundred pages.
The book includes also the important act concerning NEW BOOKS AND NEW EDITIONS. benevolent, charitable, scientific and missionary
societies, and those relating to burial grounds and CAMPBELL'S SCIENCE OF LAW.
cemeteries, and it is discreetly annotated with referThe Science of Law, according to the American Theory of ence to the decisions. Published by Baker, Voorbis
Government; by E. L. Campbell, counsellor at law. & Co., New York.
MAY ON FRAUDULENT CONVEYANCES.
A Treatise on the Statutes of Elizabeth against Fraudulent phases.
Conveyances; the Bills of Sale Acts, 1878 and 1882; and the In the preface the author expresses the opinion in
law of voluntary dispositions of property ; with an apsubstance, that no serious effort has been made toward
pendix containing the above acts and some unpublished an exposition of a national theory of law, government
cases (1700-1733) from the Cose and Melmoth U. S. Reand jurisprudence. Of course, he means of the
ports. By the late H. W May, B. A. Second edition. scientific phases of these topics. From this opinion we
By s. W. Worthington, M. A. London: Stevens & differ. Professor Terry's book is a much more acute
Haynes ; Boston, Houghton, Miflin & Co., 1887. Pp. lxxv,
647. example than any other American work.
But if the author has succeeded in any direction in This is an excellent and in every way admirable his self-imposed task, we herald him as a rising legist; book for the practitioner in the English courts, but will for even one good theory is worth a book. But has he have less value for the American practitioner. It is succeeded? Let us see. What does he mean by an designed for the English market primarily, and has American theory of jurisprudence? In the first place only occasional citations of American text-books and jurisprudence - if a science - is one in abstracto. It decisions. These are discreetly and intelligently made has no locality, it is equally relevant to all conditions in every instance, but are not ample enough for excluof men irrespective of habitat or personal environment. sive reliance in this country. For example, there is Jurisprudence is not American, not English. But no discussion of the peculiar and important doctrine when this science becomes applied, it ceases to be a of fraud as to subsequent creditors first laid down, we science of jurisprudence and becomes a system of think, in Carpenter v. Roe, 10 N. Y. 227 and repeated positive law.
in Case v. Phelps, 30 id. 164, as to solvency contingent In this respect therefore a theory of a particular on the stability of the market. But the work is so system is not a department of the science of jurispru- important in a historical and analytical view, and dence. The book purports to be only a theory of a presents the English decisions so clearly, that we certain system of positive law, to-wit., that adminis. would recommend it to the profession in this country tered in the United States. It would we think there in connection with a distinctively American work, fore be better entitled, " Rationale of the law of the like Bump's. The book is a joy to the eye on account United States."
of the beauty of its typography, and the title-page