I. III. PARTICUlar, Comparative, and GeneRAL JURISPRUDENCE. Particular Jurisprudence. I have thus far used "jurisprudence" as a term applicable to the decisions of the courts of a particular country, and have assumed that such an expression as "the jurisprudence of Italy" is correct. And notwithstanding Professor Holland's criticism,1 I venture to think it desirable to have an expression for the science which teaches how the courts of a particular country ought to decide cases. Indeed, there seems no objection to the usage which Professor Holland mentions as springing up in France of referring to the "jurisprudence" of a particular tribunal in the sense of "La manière dont un tribunal juge habituellement telle ou telle question." Nor is it necessary that the courts in question should derive their authority from any territorial sovereign; "ecclesiastical jurisprudence" is a correct phrase, and we may appropriately speak of "masonic jurisprudence," or of the "jurisprudence of Knights of Pythias," if such organizations have courts with judicial functions.2 But although particular jurisprudence may thus be the jurisprudence of a non-political body, it commonly means the jurisprudence of a particular political community. 2. Comparative Jurisprudence is the systematic comparison of the rules upon which different tribunals ought to decide cases, for the purpose of discovering the elements of resemblance and difference. There are two great bodies of law between which such comparison is profitable, the Roman law, and the English common law. There are other systems which are derived from neither the Roman nor the English; for example, the Egyptian, the Jewish, the Greek, the Persian, the Chinese, the Patagonian. Of many of them we know little, and what we do know indicates that further knowledge will be valuable in explaining and illustrating formet stages of law, rather than in aiding in its future development; for 1 Jurisprudence (5th ed.), 2-5. 2 Jurisprudence, it is true, is often used in a sense which it is impossible to defend. There are certain treatises or handbooks, many of considerable merit, containing those facts likely to arise in lawsuits with which the members of certain professions or trades are, or ought to be, familiar; such books are often called treatises on jurisprudence. Thus, works on “medical jurisprudence are vade-mecums for lawyers and doctors, containing a mass of useful information on poisons, parturition, malingering, etc., but are without any scientific unity, or any pretension to be considered "law" at all. So in France they speak of “veterinary jurisprudence; " and there is no reason why, in like manner, we should not have "plumbers' jurisprudence" or "jockeys' jurisprudence." in none of them has law ever grown beyond a relatively early state. But though few fruitful fields for comparative analysis are likely to be found outside the limits of the common and Roman law, there are plenty of them within those limits. The European countries, except England, derive their law from the Roman, and all of the United States, except Louisiana, have systems based on the common law; yet in all these countries and States the law has developed in very varied forms, so that they furnish ample scope for the promotion of studies in comparative jurisprudence. 3. General jurisprudence: what does it mean, and what is its value, as distinguished from comparative jurisprudence? It may mean one of three things. First, those general principles which are necessary, because founded in immutable human nature. General jurisprudence, in this sense, is part of anthropology. I am certainly not going to deny that there are such principles; but if they exist, we know very few of them, and these very elementary, entirely insufficient with which to build the slightest legal strucTreatises on general jurisprudence seldom get beyond the first chapter without introducing matter which is borrowed from one or more special systems, and which is obviously not necessary. ture. Second. It may mean the principles upon which all courts, apart from their special surroundings, ought to decide cases; that is, the way in which the legal rights and duties of men without Statutes, without precedents, without institutions, without a history, without clothes, without language, ought to be determined. Such speculations were at one time much in vogue. But this jurisprudence of "forked radishes" is now less esteemed. Third. It may mean the principles upon which the courts of all countries do in fact decide cases. But whether the law of the Tongooses agrees with the common and civil law in requiring delivery to make a donatio causa mortis valid, and whether the chancellor of Dahomey regards conditions in constraint of marriage as in terrorem only, are matters upon which we have, I believe, no exact knowledge. The list of legal principles which are actually applied in all the nations and tribes of the earth will not probably be long; but the knowledge necessary definitely to form it, if it be deemed desirable to form it, can hardly be expected in this generation.1 John C. Gray. 1 See a sensible article by Mr. Buckland, "Difficulties of Abstract Jurisprudence," 6 Law Quart. Rev. 436. DONATIO MORTIS CAUSA OF NEGOTIABLE IN PAPER. Rolls v. Pearce,1 Vice Chancellor Malins is reported to have said: "The Law seems to be in a very curious state. The result of the authorities appears to be that a gift of a bill of exchange, which is by its very nature payable at a future day, may be a good donatio mortis causa; but the gift of a cheque is not valid unless it is presented for payment or paid before the death of the donor. Now, I can really see no reason why, if a bill drawn on a goldsmith would be a good donatio mortis causa, a cheque should not be so too." 2 These remarks of the learned Vice Chancellor are misleading. The fact that the law on questions of donatio mortis causa of negotiable instruments is at first sight confusing is due to want of discrimination by the courts. When closely scrutinized, it is believed that every case, save three, can be reconciled with a very simple principle, based, as it seems, on a general rule of law governing commercial paper, but never yet as to this class of cases fully enunciated, either by a court or text writer. The proposition above quoted of the learned Vice Chancellor, that a bill of exchange may be the subject of a good donatio mortis causa, but that a check may not be, unless it is presented for payment and paid before the death of the donor, is not true. The remark, which has gained entrance into many opinions and text books, is no doubt a remnant of the old distinction that a check payable to bearer was not negotiable; for the learned judge immediately after says: "A distinction has, however, been drawn between the case of a bill of exchange and that of a cheque payable to bearer." "3 Indeed, in the very case before him, the Vice Chancellor supported the gift of a check as a donatio mortis causa, which was not presented to the bank before the maker's death. And in Clement v. Cheesman, the gift of two checks of a third person, owned by the donor, was supported as a valid donatio mortis causa. On the other hand, it has been held that the promissory notes made 4 1 L. R. 5 Ch. D. 730. 8 L. R. 5 Ch. D. 733. or the bills of exchange drawn by the donor himself are not such a species of property as is capable of a valid donatio mortis causa.1 The grounds upon which the courts, that have refused to enforce against his estate the donor's own promissory note at the instance of the donee, have put their decisions, are that such a note is simply evidence of the donor's promise; that it is without consideration, and therefore cannot be enforced; and that on grounds of public policy such death bed gifts should be restrained, since by them all the safeguards of the Statutes of Frauds and Wills might be nullified; and with regard to bills of exchange drawn by the donor, it is said that until accepted, they are simply a promise to pay, if the drawee does not. In these cases, as well as in the case of the donor giving his own check,2 there is simply a contractual right against the donor's estate. It is not any part of his property that the donor gives to the donee, but simply an obligation against his estate. There is no possession given of any part of that estate, and therefore there is no delivery, which is an element that is considered essential by the consensus of authority. Moreover, the gift, being only of a chose in action against the estate, needs the aid of a court to give it effect; and the donee is met at the threshold of litigation against the donor's estate by the equitable plea of want of consideration. If, before the donor's death, the donee should indorse the note, bill or check to a purchaser for value without notice, there can be no doubt that the donor's estate would be liable on it, just as an indorsee for value can enforce against the maker a promissory note given for the accommodation of the payee, and the same would probably be true, if a bill or note were so indorsed after the donor's death. Moreover, if the donor indorse the obligation of a third person to the donee, his estate would be no more liable on such indorsement than it would be on his own bill or note, although the gift of such an obligation, even if it be a check, is a perfectly good donatio mortis causa. Both in law and by the true principle, therefore, governing gifts mortis causa of negotiable instruments, there is no distinction between the different kinds of negotiable paper, nor, in this regard at least, between such gifts and gifts inter vivos. 1 Parish v. Stone, 14 Pick. 198; Raymond v. Sellick, 10 Conn. 480; Tate v. Hilbert, 2 Ves. Jr. 111; s. c. 4 Bro. C. C. 286; Harris v. Clark, 3 Comst. 93. 2 In re Mead, L. R. 15 Ch. D. 651; Second National Bank v. Williams, 13 Mich. 282. 8 Veal v. Veal, 27 Beav. 303; Clement v. Cheesman, L. R. 27 Ch. D. 631. The conclusion that the true principle governing these cases is that no obligation can be enforced against the estate of the donor, and thus, if his name is the only one on the paper, the instrument is worthless, is strengthened by the fact that it is now settled law that the donation of a bill or note or check of a third party is perfectly good, even without indorsement, and that the donee can reduce to possession his property, which he has thus acquired by manual transfer, in the name of the administrator or executor of the donor. That the donee can enforce an obligation in the name of the legal owner is not, indeed, peculiar to this class of cases; for the real owner of a chose in action can always enforce it in the name of the nominal legal owner, as in the case where one discounts a note, and by mistake the vendor does not indorse it. But these cases conclusively show that the donee gets a perfect equitable title by delivery, and that indorsement is almost a useless formality in gifts mortis causa of negotiable paper, since an indorsement would give no rights against the indorser. In other words, these cases show that in this respect also donatio mortis causa does not differ at all from that of a gift inter vivos. In short, the principle on which the cases in this branch of the law can be reconciled, seems to be that the donee can keep from the personal representative whatever assets he has, but he cannot diminish the assets that actually come into the hands of the executor or administrator. And this result is reached by applying the doctrine of want of consideration. With regard to checks drawn by the donor there is of course a further reason for not allowing their validity against his estate, as a check is only an order on a banker, and is therefore revoked by the maker's death; and this is the ground upon which the courts. have put these cases. In those cases where the check is cashed or certified, a bill accepted or paid, or a note paid, before the donor's death, of course the gift is good; since then there is no question of suing the representative of the donor in order to obtain possession of a tangible gift, or of taking away any assets from the executor, because the donee has either the money or the obligation of a third person.2 1 Veal v. Veal, 27 Beav. 303; Duffield v. Elwes, 1 Bligh, N. s. 497; Bates v. Kempton, 7 Gray, 382. 2 Bouts v. Ellis, 17 Beav. 121; affirmed 4 De G. M. & G. 249. |