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BOOK NOTICES.

A Treatise on the Law of Judgments. Including all Final Determinations of the Rights of Parties in Actions or Proceedings at Law or in Equity. By A. C. FREEMAN, Counsellor at Law. Second edition, revised and greatly enlarged. San Francisco: A. L. Bancroft & Co., Law Book Publishers, Booksellers, and Stationers. 1874.

1874.

For a full statement of our views on this work we would refer the reader to our notice of the first edition, 7 Am. Law Rev. 714 We have to express our regret that the author, in revising for his second edition, did not compel an entire change in type, presswork, and binding. The book is a small one, to be sure; but it is disproportionately awkward, and no casual buyer would ever suspect its real merits. From such information as is accessible to us, we believe the success of the first edition has proved that our estimate of its value was well founded, and that the existence of the maxim "Interest reipublicæ ut sit finis litium," does not render superfluous a work that so well teaches what can be done with a "judgment." The noticeable feature of this edition is the addition of the Canada reports to the sources of citation, and the incorporation into the text of the substance of the later decisions. Roscoe's Digest of the Law of Evidence in Criminal Cases. By HORACE SMITH, Esq., B. A., of the Inner Temple and Midland Circuit, Barrister at Law. Seventh American, from the eighth London edition, with Notes and References to American Cases. By the Hon. GEORGE SHARSWOOD, LL.D. Philadelphia: T. & J. W. Johnson & Co. THE first edition of this work was published in 1835. Roscoe, who was the son of Roscoe the historian, had reputation as a digester who displayed unusual care, discrimination, and judgment. This was his last work. He died the next year, at the age of thirty-seven years. This volume was exactly what might have been expected from his hands, - a skilfully arranged, careful, and accurate digest of those decisions of the English courts, and of those acts of Parliament, which related to the subject of criminal evidence. He made not the slightest attempt at the discussion of principles, but confined himself strictly to a statement of the law as it had been decided in the case, the name of which followed the statement. Its admirable arrangement, together with its conciseness of style and its accuracy of detail, made it a vade mecum with the criminal practitioner. This position it continues to hold in England to the present time. The English editions, subsequent to the first, have been ably edited by competent persons, who have generally adhered closely to the original plan of the work. Mr. Fitzjames Stephen, however, the editor of the seventh English edition, did not strictly confine himself to the work of digesting and collating, but enriched the book with some very valuable discussions of principles, particularly upon the subject of conspiracy. All the American editions have been

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edited by Mr. Justice Sharswood, who, probably with the intention of making his work uniform with that of Mr. Roscoe, rigidly refrains from discussion, simply citing at the foot of the page references to the chief American cases bearing upon the subject. By this mode of treatment he has prevented the book from becoming too bulky for a hand-book. The number of American editions shows that it has become nearly as great a favorite in America as in England. But in our opinion, as we stated in our notice of the last edition (Vol. I., p. 376), Judge Sharswood is not full enough in his statements of the points decided; and we think the work would be much improved by an omission from the body of the text of quotations from, and references to, those English statutes which are of purely local application, and which are worse than worthless to the American practitioner in a book designed to be used as a book of ready reference, as they are so much dead wood which encumbers his way. Such omission would reduce the bulk of the volume at least one-third, would enable the American practitioner much more readily to find what he seeks, and would give room, without enlarging the size of the volume, to a much fuller and more methodical statement of the American decisions.

Reports of Cases in Law and Equity determined in the Supreme Court of the State of Iowa. By EDWARD H. STILES, Reporter. Volume XIV., being Volume XXXV. of the Series. Ottumwa : Published by the Reporter. 1874.

THIS Volume contains reports of one hundred and thirty-four cases, all decided at the December term, 1872. The reporter explains in his preface that labor on the new digest has caused the delay in the publication of this volume, and that with two more volumes, now in preparation, he closes his official relations with the profession. We have not been able to find many cases in the volume before us that are of any but local interest; but we note the following:

Daniels v. The Chicago & N. W. R.R. Co. was an action of right for the possession of land, where the defendant railroad claimed that the plaintiff's only remedy was under the statute for the assessment of his damages. The court held that although the mode prescribed by statute for the assessment of damages was exclusive, yet that under the statute of Iowa giving to railroad companies the right to occupy lands, provided they pay to the sheriff, for the use of the land-owner, the sum assessed as damages, if the railroad company neglect to apply for the assessment of damages, or neglect to pay such damages to the sheriff, their occupation is tortious, and the land-owner may maintain his action for possession without resorting himself to the statutory proceeding.

In Griffith v. Burden et al. it is held that the measure of damages, in an action for the conversion of a Minnesota state bond issued in aid of railroads, is its market value at the time of the conversion, together with legal interest from that time, and not the amount expressed on the face of the bond. The court here affirmed the ruling of the court below, which refused to instruct the jury that the plaintiff was entitled to recover the face of the bond, unless the defendant showed that the State of Minnesota was insolvent at the time of the conversion, or that the bond was illegally issued, or that it had been paid.

In State of Iowa v. Mullen, a boat, called a "gunboat," which was run up

and down the Mississippi River, and used within the limits of the State of Iowa for purposes of prostitution, was held to be a common nuisance, and the keeper thereof liable to indictment under the statute punishing the offence of keeping a house of ill-fame.

Hougan v. The Milwaukee & St. Paul Railway Co. is a case where the plaintiff had conveyed to the railroad company, "for all purposes connected with the construction, use, and occupation of said railway, the right of way over and through" his land. The defendants dug a well for supply of water to their engines on the land covered by their right of way, the effect of which was to drain a valuable spring of the plaintiff, who applied to the court for an injunction, which was refused, on the ground that the digging of wells to supply water to engines is one of the " purposes connected with the use of a railway." The learned court, to the objection that perhaps the right to mine coal was one of the "purposes," equally with the right to draw water, gravely observes, "We would not now affirm this, and yet the distinction is by no means broad. There is this difference, however: the use of water does not consume it; the use of coal does. Nature promptly fills the vacuum caused by using the former, but of the latter never. The one may be kept for future use, where nature deposited or the ages made it; while the other is only for present use, and cannot be held for posterity."

Reports of Cases argued and determined in the Circuit Court of the United States for the Second Circuit. By SAMUEL BLATCHFORD, Judge of the District Court of the United States for the Southern District. Volume XI. New York: Baker, Voorhis, & Co. 1874.

THIS Volume contains the cases decided in the Second Circuit from March, 1873, to April, 1874. We note among many interesting and important cases the following:

In re Stupp, alias Vogt, p. 125, is the noted extradition case in which the opinion of Judge Blatchford was disregarded by the Attorney-General of the United States.

Wetter v. Schell, p. 193, decides that a protest against the payment of duties may, under the U. S. St. 1857, be prospective, and apply to all future similar importations. In Ullman v. Murphy, p. 354, Judge Woodruff holds that a protest cannot be prospective under the U. S. St. of 1864.

United States v. Susan B. Anthony, p. 200, is the famous case where the defendant was indicted for voting without having a lawful right to vote. Mr. Justice Hunt held that a woman did not have the right to vote under the Fourteenth Amendment of the Constitution of the United States, if women were not included among legal voters by the constitution of the state. The case is remarkable for the ruling that on the trial of an indictment the court has the power to direct a verdict of guilty, whenever the facts constituting guilt are undisputed.

The Idaho, p. 218, is an important case on the right of a carrier to dispute the title of the shipper of goods.

In The D. R. Martin, p. 233, it is held that a carrier may allow to one person the privilege of carrying on the express business by means of his vehicle, and refuse a similar privilege to another person.

In re Wild, p. 243, follows the decision of the New York Court of Appeals, in holding that the National Banking Act (U. S. St. 1864, c. 106, § 30) does not determine the penalty for taking usury when such a penalty is prescribed by the state law. A different conclusion has been reached by the Supreme Court of Massachusetts in Central National Bank v. Pratt, 115 Mass. 539. Judge Woodruff, however, also holds that, as by the law of New York a corporation cannot set up the defence of usury, if money is lent to a corporation at a usurious rate the provisions of the National Banking Act apply.

Silliman v. Troy Bridge Co., p. 274, discusses the right to build a bridge over a navigable stream.

United States v. Union Pacific Railroad, p. 385, is the well-known case in which it is held that while Congress may authorize the Attorney-General to institute suits to recover damages due to the United States, or to redress wrongs which are legally wrongs to the United States, it cannot create such damages, or cause acts to be wrongs to the United States which are in their nature wrongs to another.

In re Proceeds of the Ship Edith, p. 451, and The Circassian, p. 472, discuss the new twelfth admiralty rule.

A Treatise on the Law of Negligence. By FRANCIS WHARTON, LL.D., author of treatises on the "Conflict of Laws," "Criminal Law," and "Medical Jurisprudence." Philadelphia: Kay & Brother. 1874. WHEN Dugdale, Yelverton and we, were students at law in the office of the late Attorney-General, we were much taken by the symmetrical divisions of care and negligence laid down by Lord Holt, in the case of Coggs v. Bernard, 2 Ld. Raym. 909, then lately published. The three degrees of gross, ordinary, and slight negligence, correlated, as they were, to slight, ordinary, and great care, have a graceful attractiveness to the philosophic student, who, seeking for some logical oasis in the incongruous deserts of the common law, when he reaches the discussion of bailments and the degrees of care supposes that his weary eyes are for the first time gladdened by a distant view of the hanging gardens and purling fountains of the Roman law. We, however, remember a case which at that time came into the office. The client had haled a spar fit for "the mast of some great ammiral" to town for sale, and left it on J. S.'s wharf, without license, and without notice to J. S. A hoyman, coming there to load, finding the mast in the way, had cast it into the river, making it fast by a rope to the wharf. The rope was cut (by a boy, it was said, by the same inference which in those days attributed all broken crockery to the cat), and the mast went to sea, and was wholly lost. The client proposed to sue, and was advised that an action would probably lie against J. S., the owner of the wharf.

We doubted this, and suggested that this, if a bailment at all, could not be more than a mere depositum, and that the plaintiff must show crassa negligentia, and inquired of our instructor if he saw.any evidence of " gross negligence" in the conduct of J. S. His response was, "I call it pretty gross." As Captain Bunsby cautiously observed, "The bearing of these here observations lays in the application of 'em." We have found out, as years have passed by, that the beautiful distinctions which my Lord Holt and Sir William

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Jones laid down, when applied to actual cases, won't work so well as they ought; and it turns out that the learned common-law judges, and even civilians like Judge Story, who announce these symmetrical rules of law, fail to apply them in their unmodified simplicity to the cases, and in fact appear, like Hosea Biglow, "to be in favor of the law, but agin the enforcement of it." Some judicial iconoclast has even gone so far as to say that "gross,' as applied to negligence, is "a mere vituperative epithet;" and so the river of time is constantly washing away the crumbling fragments of the only symmetrical structure of the common law. It was said by a worthy clergyman, when asked how he and his confrères amused themselves at their gatherings, that they usually occupied an hour or two in fastening on to some old theological hulk, towing it out to sea, and leaving it there. Mr. Wharton believes he has towed out to sea a rotting hulk which has been cumbering one of the fare ways of the law, that he has given the coup de grace to these fanciful divisions of care and negligence which were the product of the speculations of scholastic jurists. If we understand the preface of his book, Dr. Wharton thinks that the “Anglo-American Law of Negligence," as he calls it, has assimilated itself very closely to the law of negligence as laid down by the Roman jurists; that this has been done in spite of the theories and distinctions of Lord Holt and Sir William Jones, whose knowledge of the civil law was derived from studies of the speculative conclusions of monkish writers of the middle ages. For in their time Gaius had not been unearthed from his palimpsest hiding-place, and the rock which covered the fountains of the Roman law was yet unstricken. Dr. Wharton maintains, however, that the judges by whom the English and American cases have been determined, although professing to cling to the idealistic fictions of Medievalism, when it came to a matter of business have been driven by the common sense of the common law to conclusions which can only be supported by rules and distinctions similar to those which the "classical jurists" had arrived at so many years ago.

Of course, this conflict between the theory and the application of it has led to some incongruities; but the general drift of the latest cases, like all ways, leads toward Rome. It shows that as the Roman law (the perfection of the laws of business for business men) dealt with men not as ideal, so Anglo-American jurisprudence, applying itself to the business relations of life, has been silently and unconsciously reaching the same results, adopting the same distinctions and definitions. With the "classical jurists" culpa has but two grades, · lata and levis, — the negligence of one who is an expert, and one who is not an expert. As to culpa levissima, which is incident to all business, the law does not punish that; and Dr. Wharton's struggle is to restore to our law what seems to us a very practical guide (especially for juries). "What would an ordinarily prudent man do under the circumstances?" This is substantially the test of the Roman jurists, as applied to the great majority of cases. He also qualifies the maxim as to remote and proximate cause (causa proxima non remota spectatur), and finds that the defeat of a plaintiff's action by reason of his being guilty of the culpa levissima (an imperfection which attends all human actions) is entirely wrong on principle and on the cases. The author believes his book to be the only one

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