agreeing to discharge the debtor, the creditor may recover the balance.' But if a sealed acquittance be given, in satisfaction of the whole, on receiving part, or if the debtor pay a less sum, either before the day, or at another place, and the creditor receive it in full satisfaction, the law is different. So if the creditor receive some specific article, in satisfaction, though it be of much less value than the whole sum due.3

If, on the faith of a creditor's agreement to accept a part of his debt, in full satisfaction, a third person is induced to become surety for the debtor, on the ground that he will be discharged on easy terms; or other creditors are induced to relinquish their demands on the debtor-the creditor cannot recover the balance; as it would be a fraud on the surety, or other creditor. In some of these cases, the plaintiff failed to recover the residue of his debt, on the ground that his agreement had induced the debtor to make an assignment of all his property, and a recovery would be a fraud on him."

T. M.

1 2 D. & E. 24; 5 East, 230; 2 Johns. 448; 5 Pick. 44; Co. Lit. 212 b. 2 Dalis. 49, pl. 13; Co. Lit. 212 b; 5 Johns. 271.

* Perkins, § 749, and cases before cited.

4 11 East, 390; 1 Esp. Rep. 236; 13 Mass. R. 424; 5 Johns. 386; Peake's Rep. 238.

5 See Bac. Ab. Accord and Satisfaction, A; Yelv. 11 a note.

ART. II.-PRELIMINARY REPORT OF THE CRIMINAL LAW COMMISSIONERS OF MASSACHUSETTS.

[IN several preceding numbers of our journal, we have kept our readers informed of the steps which have been taken towards a codification of the common law of Massachusetts; and the commissioners having now made a preliminary report, which we propose to republish, it seems proper to preface it with a brief account of the proceedings thus far in relation to this important subject. In January, 1836, the legislature of Massachusetts passed a resolve,

authorizing the appointment of five commissioners, "to take into consideration the practicability and expediency of reducing to a written and systematic code, the common law of Massachusetts or any part thereof, and to report thereon to the next legislature, subjoining to their report a plan or plans of the best method, in which such reduction can be accomplished." In pursuance of this resolve, Messrs. Joseph Story, Theron Metcalf, Simon Greenleaf, Charles E. Forbes and Luther S. Cushing, were appointed commissioners; and, in January, 1837, they made a report to the legislature, in favor of the project of codification. Their report is republished in the seventeenth volume of this journal. It was received with favor by the legislature; and a resolve was passed, authorizing the appointment of five commissioners, to begin the work of codification, by reducing "so much of the common law as relates to crimes and punishments and the incidents thereof, to a written and systematic code." The commissioners were also directed to specify separately such alterations and amendments, as they might deem expedient, and to report the code to the legislature. Messrs. Charles Jackson, Willard Phillips, John Gray Rogers, Luther S. Cushing and Samuel B. Walcott, were appointed the commissioners. In the succeeding winter, the first named gentleman resigned, and James C. Alvord was appointed on the commission. The proceedings of the commissioners, in the execution of the trust confided to them, are fully set forth in the report which follows. We deem it proper to add, that the subject of the specimen, annexed to the report, is one which requires a greater length and fulness of "exposition," than almost any other branch of the criminal law, and, in reference to which the decided cases and text books afford very copious materials for illustration. No other title, with the exception of larceny, perhaps, occupies so large a portion of our works of criminal jurisprudence, as that of homicide.]

THE Commissioners applied themselves to the work committed to them, early after their appointment, and have continued to devote themselves to it as assiduously as they have found it practicable to do; and recently have been able to bestow upon it more of their attention, and more effectively, than in the early stages of their labors. They deemed a preliminary examination of the criminal law, generally, to be absolutely essential to the forming of a plan which should meet the views of the legislature. In this part, they found their labors more difficult, and felt the responsibility to be the more pressing, since among the codes and systems of criminal law that have been published, they did not find any one that was satisfactory to them, as

a model, or that seemed to them to correspond to the intentions of the legislature, or that was sufficiently well adapted to the condition of our jurisprudence and the habits of our community. The precise form they have adopted, they will explain more particularly in a subsequent part of this report. When they had substantially agreed on the form to be adopted for the code, and proceeded to construct parts of it, many subordinate questions arose, which required much discussion and consideration, and which must be settled as they arose, since otherwise the different members could not work in concert, and the results of their labors would not be of a homogeneous character. Besides the difficulties and the labor of the work itself, the legislature will readily suppose, that the commissioners found other hindrances to their progress in private duties and engagements and circumstances, which it was quite out of their power to avoid. And though it is incomparably more material what code shall be reported, than whether it shall be reported at a little earlier or later period, still the commissioners consider themselves to be pledged to keep the important work entrusted to them constantly in view, and to use their utmost endeavors to bring it to a completion, as rapidly as the great labor and difficulties it involves, and the incidental interruptions and delays, which cannot be avoided, will permit.

It will be apparent that the work is of a nature, which does not admit of the completion of any part, until the whole ground has been explored, and, at least, the materials collected and arranged for every other; since each part must be framed in reference, and be adapted to the others. The code will consist of, first, the provisions relating to crimes and punishments generally; secondly, the definition and description of particular crimes and their punishments; thirdly, procedure; fourthly, pleadings, and fifthly, evidence. The part, naturally first in order in the execution

of the work, is the definition and description of crimes; in digesting and preparing the different titles of which, however, it is also requisite to collect and arrange the materials for the other parts of the code relating to these same titles, since the materials for the different parts of the code, in relation to any particular subject, are more or less connected and blended together in the books. The more important, extensive, and difficult titles have been first undertaken; such as treason, homicide, burglary, robbery, larceny, perjury, libel and arson, most of which have been written out, and much progress has been made in the others.

These titles, it will be seen, on reference to the books, occupy a proportionally great space in the body of the criminal law; and, in preparing these, the commissioners have incidentally done much towards the others. Still, until the whole ground has been gone over, it is not possible to estimate what proportional part of the labor has been accomplished; nor even then, until, by comparison of opinions and deliberate discussion, by the whole board, upon each proposition, successively, in some of the articles, it shall appear how great will probably be the labor of finishing the various parts, and putting them in a state, in which the commissioners shall deem them worthy to be submitted to the legislature. For these reasons, they cannot, at present, fix upon a time when the code may probably be reported.

The object of the present report is, to submit a specimen of the plan, and to state what the commissioners understand to be the leading objects in view in providing for the proposed work. And, in so doing, they will necessarily at the same time state the leading principles upon which they are proceeding in its execution, that the legislature may thus have the means of forming an opinion of the proposed plan of the work; and of correcting any misapprehension, into which the commissioners may have fallen; and may

give them any further instructions respecting it, that may be deemed expedient.

The resolve, under which the commission is constituted, directs the commissioners "to reduce so much of the common law of Massachusetts, as relates to crimes and punishments and the incidents thereof, to a written and systematic code, specifying separately such alterations and amendments therein as they may deem expedient."

By the description "common law," the commissioners understand to be intended the unwritten law, in the broadest sense of the expression, as distinguished from written or statute law. To ascertain, then, how much of the entire law of crimes and punishments is to be reduced to a code, it is necessary, first, to ascertain to what extent each title of the criminal law has been covered by the statutes. And, in doing this, the revised statutes afford very great assistance; since if the statute law had remained in the state in which it was before its revision, in 1836, the first step for the commissioners would have been the laborious process of collecting, digesting, and arranging the scattered provisions of the statutes, and embodying them in a form like that in which they are now presented.

On examining the statutes, it will readily appear that they contain provisions respecting the greater part of the offences known to our jurisprudence, but not all of them; for, there are some classes of offences now punishable in this commonwealth, which are nowhere mentioned in the statutes. And, in relation to those which are so introduced, the provisions are much more full in respect to some than in respect to others. If we may suppose the whole law, then, statute as well as common, to be represented by a chart, similar to the historical charts often met with, the statute law occupying one side, and the common law the other, we should see some breaks in the statutory part, where a class of offences is wholly omitted, as, for in