Ruminations |
trustee .” The high court was unpersuaded by either of them , and affirmed the judgment below . 141
Isaac Redfield was elected to the Vermont Supreme Court bench in 1835 , and following his opinion in Catlin v . Lyman & Marsh ( 1844 ), he appended a note . The subject of the decision , and the subject of the note , is whether interest may be charged on interest on a promissory note . Redfield wrote ,
From the case of Le Grange v . Hamilton , 4 T . R . 613 , and 2 H . Bl . 144 , it would seem that a contract stipulating for interest upon interest is not usurious , within the English statute . But it is , I apprehend , the uniform language of all the books upon the subject , that such a contract is not to be supported . It is so far oppressive as to be regarded against sound policy . The subject is very elaborately discussed , and all the cases collected , in the opinion of the chancellor in the case of the State of Connecticut v . Jackson , 1 Johns . Ch . R . 13 . The same rule obtained in the Roman law . Justinian ’ s Code 28 , 32 , 42 , and Voet ’ s Commentary on the Pandects , lib . 22 , tit . 1 , pl . 20 . 142
Redfield ’ s citation to the Code of Justinian is its first appearance in a reported Vermont decision . He cited Justinian more than any other judge or justice in Vermont ’ s reported cases , not always with approval . In Pierson v . Catlin ( 1846 ), he ruled that a formal order of substitution of a defendant ’ s judgment to Edward Pierson for collection would not make the defendant liable for each and every act that Pierson took . “ This substitution was , indeed , a matter , which , by our law , the court had no power to order . In doing so they were , in fact , enforcing the law of Justinian , instead of that of this state . For although , in a court of equity , the surety , who pays the debt , may be substituted to all the rights of the creditor , which are collateral to the main contract , yet he cannot even there , as a general rule , be put in the place of the creditor in the principal contract ; for , by the payment , that is discharged ; and in any action brought upon it the other debtors may rely upon that payment in discharge .” 143 Justinian was revered , but his laws were not gospel .
One man sold a shearing machine that he had leased from another , and the owner challenged the transaction . “ The sale upon the execution is only a transfer , by operation of law , of what the debtor might himself transfer . It is a principle of the law of property , as old as the Institutes of Justinian , Ut nemo plus juris in alium transferre potest , quam ipse habet .” 144 Judge Redfield , writing for the court in Griffith v . Fowler ( 1846 ), did not translate the Latin for the reader . It means , “ no one can transfer more
|
rights to another than he himself has .” 145 The Latin motto , old as the Institutes , decided the appeal .
Redfield quoted Justinian again in 1852 in Meach v . Meach . At issue was whether a gift in the form of a deed from a man to his wife shortly before he died of all his real and personal estate was valid . His brothers , his only heirs , challenged the deed . The high court found it was a testamentary disposition of the property , and unenforceable , denying the claims of the wife to the entire estate . “ As is said in Justinian ’ s Institutes ,” Redfield wrote in his opinion , “ upon the subject of gifts mortis causa , mors causa donandi magis est quam mortis causa donation , Death is rather the cause or consideration of the gift , than the mere occasion of it being made .” That ’ s a gift in prospect of death . 146 Redfield was critical of the wife ’ s position , stating , “ Refinements , evasions , forced and false glosses , have always an ugly sound in the mouth of a court of equity .” 147
Charles K . Williams cited Justinian in Smith v . Kittredge ( 1849 ). Williams was counsel for plaintiffs at the time , having retired from the Chief Judgeship of the Vermont Supreme Court three years earlier , in 1846 . The issue was whether a promissory note to pay $ 6,000 to two persons , signed before a man ’ s death , was absolute upon his death . The note had been delivered . On appeal , Williams tried to persuade the high court that the note could not be enforced . He argued , “ Why may not this note be considered a donatio causa mortis ? The definition of these gifts , in the civil law , may be found in Cooper ’ s Justinian ; and the latter part of it , to wit , ‘ when a man so gives , as to demonstrate , that he would rather possess the thing given himself , than that the donee should , and yet that the donee should possess it , rather than his heir ,’ expresses their true nature . After a recitation of authorities from England and America , Williams stated , “ In this state we have rather conformed to the rule laid down in Justinian .” It is the fate of judges not to have the same success on appeal as most people , perhaps reflecting the successor judges ’ inclination not to give any advantage to a former member of the court out of a fear of an appearance of conflict . Williams lost his argument on appeal , but Judge Luke P . Poland at least bowed in his direction , stating , “ We have felt constrained to give this case a much more full and critical examination , than we should have done after the recent decision in Holley v . Adams , in consequence of the very great research and ability , with which this case has been presented and argued .” 148
Judge Redfield invoked Justinian twice more before he retired from the high court . In 1854 , in McDaniels v . Robinson ( 1854 ), a case involving innkeepers ’ obligations to
|
protect the goods of travelers residing at the inn , he wrote , “ The Institutes of Justinian , lib . iv ., tit . 6 § 3 , thus lay down the rule : ‘ Item exercitor navis , aut cauponœ , aut staubli , de damno , aut furto , quod in navi , in caupona aut stabulo , factum erit , quasi maleficio teneri videtur .’ The innkeeper , it seems , was thus made liable for all damage or theft , the same as if it arose from his positive wrong . If it happened , it was in law regarded as his wrong , quasi ex maleficio teneri videtur .” We all love our Latin , but most readers would like a little help in translation . It is curious how reciting the original Latin text seems to add a special cachet to the ruling , even though most attorneys would be be able to pull out their Cooper to locate what it meant . If they had , they would find Cooper translating it to read , “ The master of a ship , tavern , or inn , is liable to be sued for a quasi-mal-feasance , on account of every damage , or theft , done or committed in any of these places by himself or his servants . . . .” 149 Latin didn ’ t make the ruling any more authoritative , but it gave it gravitas .
His final bow to the emperor was simply to show heightened respect for the rules on the taking of private property for public purposes because they are “ as old as the Roman civil law ,” in State v . Conlin ( 1855 ). 150
The branches and roots of Edmund Skinner ’ s apple tree hung over Samuel Wilder ’ s property , and Wilder took the apples that grew his side . On appeal , the court ruled this was trespass and awarded damages to Skinner . In Skinner v . Wilder ( 1865 ), Judge Asahel Peck quoted the Institutes : “ After stating that if one sets his plant in another ’ s ground , it becomes the property of the owner of the land where it is set , after it has taken root , the passage proceeds as follows : ‘ So that if the tree of a neighbor borders so closely upon the ground of Titius as to take root in it , and be wholly nourished there , we may affirm that such tree is become the property of Titius ; for reason doth not permit that a tree should be deemed the property of any other than of him in whose ground it hath rooted ; therefore if a tree planted near the bounds of one person , shall also extend its roots into the land of another , it will become common to both .’” And then rejected the Roman rule in favor of a stricter reading , denying Wilder those apples . 151
Plaintiff ’ s lawyers cited Justinian and Cooper ’ s comments in support of their argument that a soldier ’ s will was valid , in Vandeuzer v . Gordon ’ s Estate ( 1866 ). 152 They succeeded in persuading the high court on appeal to accept it as a valid testament . In Gaines v . Strong ’ s Estate ( 1867 ), Judge Loyal Kellogg held Justinian up as authority for determining who was a valid heir by right of representation . 153 The Roman lawgiver was mentioned in string cites offered in support
|