tected against even the defense of usury, the statute against usury was practically almost abrogated as to negotiable paper.

"The precise question presented here, as applied to commercial paper in the hands of a bona fide holder, etc., has, so far as we have been able to discover, been presented in but one case, and that a very recent one, viz. the case of Foster v. McKinnon, decided in the English common pleas, in July, 1869, and reported in 38 Law Journal Reports, new series, page 310, which case was very fully argued and carefully considered by the court, upon examination of all authorities which could be found bearing on the question. In that case the defendant was sued as indorser of a bill by a bona fide holder, and it was in its circumstances quite similar to the case at bar, except that the present is a somewhat stronger case for the defendant on the question of negligence. In that case the defendant proved, that though the instrument he indorsed was in fact a bill when he indorsed it, and was upon a paper having the ordinary shape and size of a bill, and had a bill stamp impressed upon the face, which impression was visible on the back, yet he, the defendant, did not look at the face of the bill, and, when he wrote his name upon the back, it was represented to him, and he believed it to be, a guaranty.

"Under these circumstances, the lord chief justice who tried the cause left it to the jury to say whether the signature was obtained on a fraudulent representation that the paper to which it was put was a guaranty, and instructed the jury that, if it was so obtained, and the defendant signed it, not knowing it was a bill, and under the belief that it was a guaranty, and if he was not guilty of any negligence in writing his name on the bill, without ascertaining what he was signing, he would be entitled to their verdict. This instruction was sustained by the whole court, in an elaborate opinion delivered by Byles, J. We are satisfied with the reasoning of the court in that case, and we think any other rule would be fraught with great danger to the security of property. If, as to a party who can give evidence that he purchased the bill for value and before maturity, and as to whom the defendant is unable to bring home notice, the question of liability is reduced to a mere question of the genuineness of the signature, we do not see how a party would be able to escape liability, as suggested by the court in the case referred to, where he had written his name in a lady's album, or for the purpose of franking a letter, or for any one of the thousand purposes for which a man is often called upon to furnish a signature without the intention of making a negotiable instrument. The true distinction was tersely stated by Bovill, C. J., in Foster v. McKinnon, interrupting counsel arguendo, who was stating the proposition, that where the plaintiff proved he is a bona fide holder for value, it is immaterial that the signature of the defendant was obtained by fraud. -That,' said the chief justice, 'is where the defendant intended to put his name to an instrument which was a bill.' The exception to the refusal to admit the evidence offered was well taken. A new trial must be granted, etc."

As the principles involved in this case are of unusual importance, we append the decision of the court of common pleas, above referred to, the opinion in which was delivered by Mr. Justice Byles, and is as follows:

"This was an action by the plaintiff as indorsee of a bill of exchange for 3,000l. against the defendant as indorser. The defendant, by one of his pleas, traversed the indorsement, and by another alleged that the defendant's indorsement was obtained from him by fraud. The plaintiff was a holder for value before maturity, and without notice of any fraud. There was contradictory evidence as to whether the indorsement was the defendant's signature at all, but, according to the evidence of one Callow, the acceptor of the bill, who was called as a witness for the plaintiff, he, Callow, produced the bill to the defendant (a gentleman far advanced in life) for him to put his signature on the back, after that of one Cooper, who was payee of the bill and first indorser, Callow not saying that it was a bill, but telling the defendant the instrument was a guaranty. The defendant did not see the face of the bill at all, but the bill was of the usual shape and bore a bill stamp, the impress of which stamp was visible at the back of the bill. The defendant signed his name after Cooper's, he, the defendant, as the witness stated, believing the document to be a guaranty only.

"The lord chief justice told the jury that if the indorsement was not the defendant's signature, or if, being his signature, it was obtained upon a fraudulent representation that it was a guaranty, and the defendant signed it without knowing that it was a bill, and under the belief that it was a guaranty, and if the defendant was not guilty of any negligence in so signing the paper, the defendant was entitled to the verdict. The jury found for the defendant. A rule nisi was obtained for a new trial, first, on the ground of misdirection in the latter part of the summing up, and, secondly, on the ground that the verdict was against the evidence.

"As to the first branch of the rule, it seems to us that the question arises on the traverse of the indorsement. The case presented by the defendant is, that he never made the contract declared on; that he never saw the face of the bill, and that the purport of the contract was fraudulently misdescribed to him; that when he signed one thing he was told and believed that he was signing another and an entirely different thing; that his mind never went with his act. It seems plain, on principle and on authority, that if a blind man, or a man who cannot read, or who for some reason (not implying negligence) forbears to read, has a written contract falsely read over to him, the reader misreading to such a degree that the written contract is of a nature altogether different from the contract pretended to be read from the paper which the blind or illiterate man afterward signs, then, at least if there be no negligence, the signature so obtained is of no force. And it is invalid, not merely on the ground of fraud where fraud exists, but on the ground that the mind of the signer did not accompany the signature; in other words, that he never intended to sign, and

contract to which his name is appended. The author

lent misapplication of that genuine signature to a different purpose would have been a counterfeit alteration of a writing with intent to defraud, and would therefore have amounted to forgery. In that case the

deed, the deed does not bind him, is supported by many authorities (see Com. Dig. tit. 'Fait,' b. 2), and is recognized by Bayley, J., and by the court of exchequer in the case by Edwards v. Brown, 1 Cr. and J. 312. Accordingly, it has recently been decided in the exchequer chamber, that, if a deed be delivered, and a blank left therein be afterward improperly filled up (at least if this be done without the grantor's negligence), it is not the deed of the grantor. Swan v. The North British Australasian Company, 2 Hurls. and C. 175; S. C., 32 Law J. Rep. (N. S.) Exch. 273. These cases apply to deeds, but the principle is equally applicable to other written contracts. Nevertheless, this principle, when applied to negotiable instruments, must be and is limited in its application. These instruments are not only assignable, but they form part of the currency of the country. A qualification of the general rule is necessary to protect innocent transferees for value. If, therefore, a man write his name across the back of a blank bill stamp, and part with it, and the paper is afterward improperly filled up, he is liable as indorser; if he write it across the face of the bill he is liable as acceptor when the instrument has once passed into the hands of an innocent indorsee, for value, before maturity, and liable to the extent of any sum which the stamp will cover. In these cases, however, the party signing knows what he is doing: the indorser intended to indorse, and the acceptor intended to accept, a bill of exchange to be thereafter filled up, leaving the amount, the date, the maturity and the other parties to the bill undetermined. But in the case now under consideration, the defendant, according to the evidence (if believed) and the finding of the jury, never intended to indorse a bill of exchange at all, but intended to sign a contract of an entirely different nature. It was not his design, and, if he was guilty of no negligence, it was not even his fault that the instrument he signed turned out to be a bill of exchange. It was as if he had written his name on a sheet of paper for the purpose of franking a letter, or in a lady's album, or on an order for admission to the Temple Church, or on the leaf of a book, and there had already been, without his knowledge, a bill of exchange or promissory note, payable to order, inscribed on the other side of the paper. To make the case clearer, suppose the bill or note on the other side of the paper, in each of these cases, to be written at a time subsequent to the signature, then the fraudu

for two reasons: first, that he never, in fact, signed the writing declared on; and, secondly, that he never intended to sign any such contract. In the present case the first reason does not apply, but the second reason does. The defendant never intended to sign that contract, or any such contract. He never intended to put his name to any instrument that then was or thereafter might become negotiable. He was deceived, not merely as to the legal effect, but as to the actual contents of the instrument.

"We are not aware of any case in which the precise question now before us has arisen on bills of exchange or promissory notes, or been judicially discussed. In the case of Ingham v. Primrose, 7 Com. B. R. (N. S.) 83, and the case of Nance v. Davy, 5 Ala. 370; S. C., 1 Parsons on Bills, 114, n., both cited by the plaintiff, the facts were very different from those before us, and have but a remote bearing on the question. But in Putnam v. Sullivan, 4 Mass. 45; S. C., 1 Parsons on Bills, 111, n., a distinction is taken by Chief Justice Parsons between a case where an indorser intended to indorse such a note as he actually indorsed (being induced by fraud to indorse it), and a case where he intended to indorse a different note and for a different purpose; and the court intimate an opinion that even in such a case as that a distinction might prevail to protect the indorser, guarding themselves, however, as the chief justice has done in the case now before us, with the proviso that the indorser is not chargeable with any "laches, negligence, or misplaced confidence in others," which last is but a species of negligence. The distinction in the case now under consideration is a much plainer one, for on this branch of the rule we are to assume that the indorser never intended to indorse at all, but to sign a contract of an entirely different nature. For these reasons we think the direction of the lord chief justice was right.

"With respect, however, to the second branch of the rule, we are of opinion that the case should un.

dergo further investigation. We abstain from giving our reasons for this part of our decision, only lest they should prejudice either party on a second inquiry. The rule, therefore, will be made absolute for a new trial."- Rule absolute.

IDEAL OF A CODE.

As law is a moral and deductive science, it is necessarily, in every country, derived from two sources the written and the unwritten. The latter is written on the tablets of the heart. It is that portion of morality which consists of duties of perfect obligation. A larger area may be marked off from general morality, in some countries, than in others. But natural or general jurisprudence is the same everywhere. The particular jurisprudence of every country ought to be similarly homogeneous, though not equally extensive; because it ought to follow the political model, and so vary with the constitution, as free or arbitrary.

The various sources of Roman as well as of English law are, therefore, reducible to two. So are the fountains of law everywhere. The written law may be merely a republication of parts of the law of nature, or it may reveal doctrines unknown to the common law of mankind. In the latter case it is technical, and not cognizable a priori. But, as its doctrines and definitions cannot be innumerable, it admits, of course, of codification. When civil law is technical, it is thus warped from its moral constitution through military considerations or motives of public policy. But law, properly so called, ought to be free from all technicality; and it ought to be the aim of every law reformer to eliminate any technical elements in the municipal system, and so make it coincident with the ethical rule of life.

Such being the nature of law, there ought to be no difficulty in consolidating existing rules, or reducing all to ashes, and producing a new Phoenix on their ruins. In either case, whether the code or consolidation act merely re-expresses, or alters, the law, it ought not to enjoy exclusive authority. If any of its precepts are technical, why should they not be construed by the light of old decisions or foreign similar enactments? If its doctrines are purely ethical, why should they not be read with the glossary of moral and jural writers? This shutting out of evidence is the most pretentious thing imaginable, and may remind one of the conduct of the Indian prince, who put out the eyes of the architect of the Taj Mehal, lest he might build any more similar structures, and so obscure the glory of his past achievements.

Cases are useful, not only where they are founded on technical rules preserved in the code, but even where the point in question is purely moral. A long series of deductions will be more easily gone through, with the aid of a precedent. Either cases will, or will not, be applicable to a point under the code. If inapplicable, the reports will be consigned to the care of the spice merchant, or reground into new paper. No one will consult them. But, if applicable, they will be useful, and will greatly narrow, in every case, and in most annihilate, the sphere of judicial discretion.

The principles of cases are more important than the provisions of statutes, because they give the technical elements fitting with the ethical; while the letter of the statute may not fit the technical arch, and so its ethical bearings may be neutralized. But, though case law is thus important, and, in fact, at the present day comprises all law (being equal to statutes, plus judicial interpretations thereof), yet, they are only to be cited as deducibles, to exemplify the position of the text, but to have no greater validity than if they found no place in the code. Their dicta and verbiage should be dicta and verbiage still. The maxim, Noscitur a nociis, should not apply. Cases are but specimens of the quartz from which the pure gold of the text is extracted. Not but that, at the present day, they supply us with a complete and perfect text on every point. Still, they contain a vast amount of farrago which is mere selvage or husk, and not properly either technical or moral-law.

Cui bono, then, to give a code exclusive authority when it will be in a few years encrusted with decisions, which, though not as numerous as those at

present to be found on any particular point, will, just like a little learning, be dangerous in proportion to the flickering twilight they shed upon the text. They will thus tend to render the solution of a question more difficult than ever, pouring forth only light enough to display pit-falls and seeming contradictions between the judgments already reported, without furnishing that complete rescue which is at present furnished by our exhaustive reports. After each section of the code is overlaid with judicial frescoes, it will be sufficiently furnished to be comfortable for use. But this is the very difficulty which is now sought to be got rid of. We are going to prefer absolute poverty to our present embarras des richesse. The judicial Sinbad, however, can only be overcome by plethora. Else, all precedent must be eschewed, and nothing in future cited but the code. This will certainly render future judgments, if not consistent with one another, at all events aiming at consistency with the code. It will be carrying out Judge Talfourd's ideal of a legal system, since the rules will be flexible, and, moreover, known to the judges; a condition precedent not always fulfilled under the present unwritten, or rather uncodified, system. But, if precedents on the code are to be admitted, why reject those already made to order?

A leading mistake as to the uses of a code, is the supposition that it will, or can, abridge legal studies. It cannot. But, in the first place, the theory of the law is extremely easy. Any one can acquire a knowledge of legal principles in a few months, sufficient to enable him to search the scriptures for any particular point afterwards. No one reads the reports as a methodical study. Now no science is so certain as mathematics, although its deducibles are innumerable. So with law: though not thoroughly known to the most learned, it is not necessary that it should be so. Sufficient for the day is the evil thereof. If a person knows enough of principles to be able to search and interpret the proper authorities, he has sufficient stock in trade wherewith to commence business. All he requires is such moderate training as will enable him to see through the legal telescope, though not to count the stars. The multiplication of cases, therefore, is a bugbear. Law is as easily learned as if there were only one-hundreth part the existing quantity of reports. A code, then, will not, and cannot, abridge legal study, since it will not omit any definition of principles with which alone the student is concerned. Once that he knows the meaning of the few technical terms used, and the leading principles, he need only look into any law book on any particular subject. This will give him the last case, whence he can ascend to the earlier authorities, until he is lost in the transcendental mazes of jural exploration. The other reports he need not mind; just as a person looking into a dictionary is not embarrassed by the fact that his oracle contains a vast amount of unconnected, though useful, information on other points than those he is investigating.

The popular notion of a code is of a huge statute founded upon abstract jural principles, and not upon existing law, and outside of which no recourse is to be had to legal authorities. Such a code would leave a highly artificial state of society bereft of its costly

legal experience, and would add to judicial discretion what it took from its labor in searching for precedents. This state of affairs would be nothing better than an empty house, in which every unquiet judicial spirit might disseminate its own innovations and revel with impunity. Some difficult questions, at present, occasion much litigation. But this is owing to the want, not the accumulation, of cases in point. Besides, our attention is called to the number of the wrecked, and not to the many whom decided cases preserved from having their rights disputed.

How then is discretion to be eliminated, precedent observed, and yet a bird's-eye-view obtained of the chain of cases, statutes, and principles bearing upon each new state of legal facts? The remedies are to be found, first, in the abolition of all rules peculiar to remainders, and their conversion into executory interests, as aimed at by 7 and 8 Vict., now repealed; secondly, in the transfer to real property of all the rules now peculiar to personalty, leaving, however, to entails their present capacity to support remainders; thirdly, in the transfer to law of all the peculiar doctrines of equity; in other words, to make law follow equity in all its rules of construction. This it does at present in almost every case, else equity would not follow the law, as it does. This last reform does not involve any extinction of trusteeships, but applies only to a few rules and forms of conveyancing. All interests in property, whether real or personal, are rights of the same nature, and are therefore reducible to one denomination. Our whole legal system could thus be reconstructed in a very short time; while, though a great mass of existing law would be repealed, or rendered obsolete, yet the code would still rest on past decisions. Stare decisis is not the worst of judicial maxims, and should not be ignored by the law reformer.

A code, stating in logical order the principles of statutes and decisions, and referring, like the code before us, to cases, but, like the Indian penal code of 1860, providing that "the illustrations make nothing law which would not be law without them," would appear to be the tripod we were in search of. Being an exhaustive consolidation act, with reforms, and throughout constructed on scientific, and, therefore, consistent principles, it would condense the law, and yet not add to judicial discretion. It would afford a fulcrum whereon the future law reformer or codifier could stand, while the legislature could impart to it, when fully developed with amendments from time to time, exclusive authority. This latter point, however, is very apt merely to enlarge the sphere of judicial discretion. Therefore, the chief uses of a code are to give the whole law in the shape of a single consolidation act, philosophically distributed, and shutting out no case or statute not necessarily repealed by its provisions; yet, in the course of time, rendering recourse to these extraneous authorities virtually

unnecessary.

The law of England ought to be deprived of a great variety of the rules peculiar to real and personal property, before it is codified. The x's on both sides of the equation, peculiar interests in both descriptions of property, ought to be reduced to the common denomination of rights; each class possessing in com

mon all the good incidents owned at present by either. At the risk of repetition, we may add, that the modes of conveyance should be in every case the same; viz., by contract, gift, or will, accompanied, in cases inter vivos, by delivery, or a writing. The settlement of both should be capable of being effected by the same words. There should be no need of a non-vesting clause as to personalty; but a quasi entail of goods and chattels should be as potent to bear up a remainder as an entail of freehold now is. So as to the rules of survivorship, dying without issue, the rule in Shelley's Case, etc., one uniform standard should be laid down for both descriptions of property.

With these changes wrought, most of our past law would become obsolete. In abstracts of title, however, the old law would appear for many years to come. Yet, as it was not destined to last all future time, a digest of it is but a decoration of the dead.

We are at a loss, therefore, to understand, not only how the fusion of jurisdictions will eliminate peculiarities of rights, but also how a digest of past decisions will produce "a consistent body of law for the guidance of a mixed tribunal," if the digest faithfully reproduces the conflicting rules of real and personal property; of law and of equity. A consistent body of law, in the sense Mr. Fisher refers to, is not possible, where the materials to be digested are, as he admits, inconsistent.

The

A digest such as he contemplates must work changes. It must be a code, and more than a code, to effect this consummation. It must be a code with reforms; in other words, an essentially new system of law. This revolution, or consequence of a jural revolution, is, indeed, possible and easy. If the distinctive peculiarities of real and personal property, of law and equity, were annihilated, as regards the respective interests to which they are applicable, half-nay, fourfifths of our cases would become obsolete. equation of jural rights is, surely, possible. If so, a brand-new code may be at once produced. An eclectic consolidation act of this kind, such as the civil code of New York, being substantially new, yet founded on cases whose authority is unimpeached, will be like the first day of the month among the Greeks it will be both new and old. The old luminary fadeth away; but the new one grows according to well-known rules. The new promulgation will be founded on the old law. This simplicity will not take away certainty, nor will the double-faced Janus indicate any thing but peace.

Mr. Fisher's idea appears to be, that the labors of his commission will operate as a gigantic statute of uses, applicable both to personalty and realty, and extinguishing all legal rights, leaving only the equity, with legal incidents attached. Our notion is, that equity and law should be still administered in respect of the present respective subject-matter of each, but that the peculiar incidents of each should either be eliminated or transferred to the other side. This latter desideratum, however, cannot be effected by a digest, which is, par excellence, a mere re-expression of existing law, but must be accomplished by organic and material, and not merely formal, changes in the law. A legal and an equitable right will, when thus remodeled, be attended with the same incidents in res

pect of conveyance, succession, etc., while each would still be possessed by a distinct person.

To return to the Sibylline policy of burning our books- a device that might perhaps be also deemed applicable to the one hundred forthcoming oracles promised by Mr. Fisher -it may be asked, If our judicial tyrants are not to be thus disposed of by a code, what are its uses? We reply, that, first, it will be of immense service to local tribunals (as pointed out in Ed. Review, Oct. 1867, Art. "Codification"), which, Chough having only a limited jurisdiction, yet, in the main, administer the same difficult laws as the superior courts. Secondly, a compendious consolidation act of our whole law, written and unwritten (so far as the latter has been already marked off from general morality by reported cases), will afford a fulcrum for future law reforms, consolidation, and systematized jurisprudence. It will tend to bring the technical elements of our law into clear relief, so that they may be the more easily excised, and it will thus lead to a philosophic structure at last, which will be almost as deductive as the definitions of a strictly scientific treatise. It will suggest new phrases for its sections, and new condensations of its parts. Comparative jurisprudence will thus be encouraged, and a system of civil law excogitated, which may be adopted by all other states in the Union, or even throughout the world. A late, recent, periodically improved, homogeneous, and consistent act of parliament ought surely require no recommendation, especially when it consolidates not merely statutes, but every branch of

law.

Yet the supposed uses of a code in abridging legal study are futile. Each section must still be read by the light of decided cases. It is not statute or case law that a student should read. A treatise is what alone will give him the jural milk, which, and not the strong meat, he first requires. A code, however, being a treatise, will facilitate, not so much, indeed, his studies, as his early practice. If the code obliterated all past cases, his studies might be confined to the code. But, unless he was familiar with the unseen foundations of principle on which the code rested, he would merely be burdening his memory with what no mnemonic faculty could retain. Besides, as the annihilation of the authority of cases would reduce the code to a new kind of light, which, by ignoring tradition, simply meant chaos and judicial discretion, we deprecate such a consummation as a wanton disregard of the experience of ages. It would be a weak code that could shine only in utter darkness, and separated from the judicial atmosphere. However, as cases should be cited in practice, in respect of rights arising within the period allowed by the statutes of limitation, past decisions cannot possibly be avoided for sixty years to come or more, as many rights will not accrue to persons now living until then. If consulted for one part of the abstract, then, how can labor be abridged for the next sixty years, by looking for arguments in support of the other parts of the abstract only in the recondite labyrinth of moral ratiocination.

The course, then, we would recommend to the legislature is, to adopt the code at once, just as it passes any consolidation act, giving it the authority of such an

act and nothing more. Cases will still be cited, but not past statutes, except where they are in the same words or substance as the code, and then only as a glossary on the consolidation act. If, after a few years, the code is found sufficient, then let all past note and comment be strictly forbidden. But, if it is found defective (and every work of human art is so), let a fresh edition be published embodying the casus omissi of the first issue, and also all such other rules as are considered necessary. Thus will our legal system grow with our growth, and not be a cast-iron feudatory of the middle ages, or a relic of the Medes and Persians, admitting neither of expansion nor retrenchment.

A permissive consolidation act, such as we have described, as it ought to be the first stage of codification, so ought it to be the last. A code never should have exclusive authority, nor interdict recourse to law treatises, or even dictionaries, unless, like the Roman or the promised English digest, it be so voluminous as really to comprise all past decisions. This reduction of law to symbol and hieroglyphics is the negation of all philosophy. We think we have shown a more excellent way. But, though we do not claim as much authority for our code as the English commission does for its one hundred volumes of handy-book, yet we are not sure that the merits of the British Pharisees are thus in any way increased. The legislature cannot confuse the law in any way by the constitutional and mild remedy we propose. It remains to be seen whether they can deliberately ignore the honorary engagement which they inherit from their predecessors, or hesitate in issuing to the public a code prepared with so much toil, yet stamped only with the authority of its inherent value.

CURRENT TOPICS.

It is a notable fact that most of the members of the French national committee of defense are lawyers. M. Favre, who may justly be considered as the most influential member of that committee, was a celebrated advocate, and has taken part in some of the most conspicuous causes celebres of the French bar. He was a law student in Paris, afterward practiced in Lyons, and came to the Paris bar in 1835. He was noted for the ultra-republicanism of his opinions. When called upon to plead in a great cause involving the liberty of the press, he commenced a famous speech by the words: "Je suis republicain." It heightened the impression entertained of his vigor and courage to know that that speech, which lasted four hours, was made when he was suffering from dangerous illness

Some of the newspapers have queer ideas of law. All the hotels in Rutland, Vt., have "shut up shop," because the authorities would not permit them to sell intoxicating drinks. The Tribune thinks the proprietors ought to be compelled to open their doors. It says: "A licensed innkeeper has voluntarily contracted with the public to furnish certain lawful accommodations in consideration of his license. The bargain is not wholly one sided. He covenants to do something," etc. This is hard law. To say that a man is bound to keep his hotel open at a loss would be cruel. The town authorities are bound to furnish