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minutely the testimony bearing on the sanity of one Littlebury Lucas. The story is amusing enough for a newspaper, and graphically told; but it was surely unnecessary to reprint it for the sake of enforcing the few legal propositions for which it is valuable as an authority. As an illustration of the stuff which Mr. Redfield considers it proper to reprint in a book of Leading Cases, we quote the following passage from this opinion: “With a few immaterial exceptions of opinions to the contrary, it is conceded by all that this old man had not his reason in 1854; he lost all sense of decency in the presence of ladies; he was untruthful; he offered a young lady two hundred dollars, and, when she refused to receive it, he was about to burn it in his pipe, and was only prevented by her consenting to take it; he was travelling over the country declaring his wife was dead, and he wanted to marry again; addressed several ladies: offered to buy a wife at prices varying from small sums, or a few negroes up to twenty thousand dollars; he declared he could buy a wife, and would do it (was this madness ? Query). When corrected in any of his wild notions, he would get very angry, and insist he was right; he insulted his own sister-inlaw at her own table; was offering to sell his negroes at times for the wildest prices, and then for almost nothing; all the family united in having him declared non' compos, and in having a guardian appointed under our statute; accordingly, a commission was sued out on the thirtieth day of June, 1854; he was declared an insane lunatic from age and disease, “ and incapable of managing his own affairs;" his son was appointed his guardian; his affections entirely changed; he took up with Parsons and Holsten, and his hatred for his son was the most intense; he would curse him as the d
-st rascal and rogue and fool that ever lived; charged him with stealing his will and his property; and declared he intended to make a will, and cut him off with five dollars, as being all the law allowed him."
We suppose that no two minds would agree as to what are the one hundred or two hundred leading cases among our American decisions on Wills. But on what grounds could the author have placed Kurz v. Hibner in that category? The Supreme Court of Illinois there held that where the will devised land as being eighty acres in a particular township, range, section, and number, and it appeared that the testator owned no land precisely answering the description, it was held not competent for the devisee to prove by oral testimony that the testator did own eighty acres of land, corresponding in all particulars in its description to that in the will, except that it was in section thirty-three instead of thirty-two, and that he owned no other eighty-acre tract in the township, in order to enable the court to decide, as matter of construction, that the testator must have intended to devise the land in section thirty-three, and the court thereupon declared the devise void. The case was cited for no reason, can see, except that the author might demonstrate in a note that the decision is opposed to the overwhelming weight of authority.
Not to extend this notice further, we sum up by saying that this collection of cases does not appear to have been made with the greatest care; that a large part of the opinions quoted consists of discussions of evidence which are not worth reprinting; and that the book adds very little to the knowledge which may be obtained from the author's work on Wills, a standard authority accessible to all practitioners.
A Practical Treatise on the Power to sell Land for the Non-payment of Taxes ;
embracing the Decisions of the Federal Courts, and of the Supreme Judicial Tribunals of the several States and Territories. By ROBERT S. BLACKWELL. Fourth edition, revised and enlarged. Boston: Little, Brown, & Co. 1875.
To the student of constitutional history the most interesting feature of the taxation of land is left untouched by Mr. Blackwell, to wit, its history in this country. Tax titles were unknown to the common law of England, and, we believe, are still unknown in that country. The only way in which an Englishman's lands could be involuntarily aliened, except in cases of forfeiture for treason, was by judgment of law; or, as it was expressed in the Great Charter, “ by the law of the land.”
In the Constitution of the United States, and of some of the states, express authority is given the legislature to “ levy and collect taxes.” What was the practice in respect to taxation before the constitutional graut of authority? Were lands liable to sale for non-payment of taxes then? If so, by what authority? In England, under whose laws our ancestors lived, it was never supposed that the phrase " law of the land” meant any thing but judgment upon
process of law; and no man's lands could be taken from hiin by the summary methods pursued in America for the collection of taxes. Was the law of England held inapplicable to the state of the country among the colonies ? If lands had not been the subjeet of taxation and seizure, what was the policy which directed the change?
Materials are certainly not lacking for answering these questions; and it is a matter of surprise that so industrious a worker should have passed by them altogether for the dry husks of judicial decisions upon the formalities and informalities of sheriffs' deeds. The fact only shows that there was the same insatiable demand for “ practical” treatises on the law twenty years ago as now, and that all else was counted but dross.
The modest editor of this edition, whose name we happen to know to be Marshall D. Ewell, has done those of the profession who are concerned in tax titles an excellent service. So far as we can discover, the reports have been gleaned, high and low, of every thing upon the subject; and we notice much more than the usual fulness of stating the cases. This practice, which is now coming extensively into vogue, is simply a renewal of the method of many of the best old English text-books, and is to be especially commended in this country. So long as the courts and the bar will insist upon having all the cases, and, for the most part, have not access to the vast accumulation of reports, it is the duty of authors and editors to supply the want as far as possible.
Mr. Ewell has, probably unwittingly, laid himself open to a criticism which is doubtless unfounded in fact. Many of his notes appear in the dress of the head-notes of the reports; the statement of facts being connected with the ruling by the abrupt and in a text-book inappropriate “ held.” This form of expression is adopted by the reporters for its brevity, and we presume was adopted by Mr. Ewell for the same reason; but the well-founded suspicion to which it leads in many of our text-books renders it desirable that honest men should discard it.
We have examined much of Mr. Ewell's work, and observe that his language is accurate and guarded; and we are safe in inferring that he has put into the book honest, faithful labor. To say that this edition is the best that has yet appeared since the author's death, does not do full justice to the editor; and we feel justified in adding that it is satisfactory.
The Law of Usages and Customs. A Practical Law Tract. By J. H. BALFOUR
BROWNE, of the Middle Temple and Midland Circuit, Barrister at Law, Registrar to the Railway Commissioners, author of • The Law of Carriers," “ The Medical Jurisprudence of Insanity,” &c. London: Stevens & Haynes, Law Publishers, Bell Yard, Temple Bar. 1875.
In this volume Mr. Browne's treatise occupies ninety-eight pages, not including the index and table of cases, and the publishers' catalogue of lawbooks forty-eight. We are not sure that the work would not have been quite as valuable if the numbers had been interchanged. Certainly forty-eight pages would have been quite enough to contain all that is useful of the author's work.
The constantly increasing volume of the reported decisions has created a demand for monographs on separate heads of the law, which are gradually driving out of use the more comprehensive treatises. Books on Injunctions" and “Specific Performance” have succeeded works on “Equity Jurisprudence;" and to the practising lawyer who is examining a particular question they are vastly more useful. Subdivision, however, may be carried too far, and a subject may be selected of which there is not enough to be said to fill a volume; and this seems to have been Mr. Browne's difficulty in the construction of the one before us, whence, perhaps, the large contribution of the publishers. We will not say that a valuable book might not be written on the law of usages and customs; but certainly the few well-established rules of evidence which form the foundation of this treatise are but scanty material for a separate work. We have read it through without discovering any thing not familiar to the profession or readily to be found in almost any book on evidence or contracts. The really embarrassing questions which arise in the law of usage, particularly where evidence of usage is offered to vary the effect of acts to which the law attaches a certain consequence, have escaped, apparently, the notice of the author.
Possibly as a collection of cases it may be valuable; but even for this purpose it is less useful to the American lawyer, as no American cases are cited.
Manual of Political Ethics. Designed chiefly for the Use of Colleges and Stu
dents at Law. By FRANCIS LIEBER, LL.D., Corresponding Member of the Institute of France, &c.; author of “ On Civil Liberty and Self-Government,” “ Principles of Legal and Political Interpretation," &c. Vols. I. & II. Second edition, revised. Edited by THEODORE D. WOOLSEY. Philadelphia: J. B. Lippincott & Co. London: Trübner & Co. 1875.
This book is not one which properly falls within the jurisdiction of a legal critic, nor will the limited space which we can devote to notices of new publications permit us to make it the subject of an extended review. This is indeed the less necessary, since Dr. Lieber's work has been familiar to the
public for nearly forty years, and its reputation is well established. Highly praised as it was on its first appearance by authorities like Kent, Story, Prescott, and Hallam, it has since retained in the public estimation the place which it then acquired.
And yet it is a book more likely, we iancy, to be praised than read. The author's doctrines are always sound, and his reasons for them good; but the first are apt to strike the reader as axioms, and the last as somewhat obvious. One feels in reading it as if he were treading familiar ground, and his mind is acquiescent. There is nothing to stimulate a spirit of opposition, and little which it strains the mental digestion to assimilate. It may be that the doctrines of the work were newer when it first appeared than now, and that the influence of the generation to which it was addressed has been so powerful upon our own that we have grown up to regard as universally accepted doctrines propositions which to them seemed new and possibly revolutionary.
Yet we would not be understood as undervaluing Dr. Lieber's treatise. It is admirably adapted to the purpose for which it was written; and the wealth of illustration with which its author's extended reading enabled him to enrich its pages gives it an interest which must make it of great value as a text-book in colleges. In some way or other the principles which it inculcates should become familiar to every citizen, and should be taught as an essential part of his education. They are so commonly neglected in practice, so frequently overlooked by legislators, who would never question them in theory, that we may well doubt whether they are so generally understood as they should be.
In editing the present edition, Dr. Woolsey has contented himself with adding, in notes, selections from a mass of material in the form of original notes, quotations from other authors, and clippings from newspapers, which he found in a copy of the first edition belonging to the author, and which had apparently been collected by him with the intention of himself preparing a second edition. This matter was so voluminous that it could not all be used without increasing the size of the book too much; and “the attempt has been made," as the editor tells us, “to satisfy all practical demands by inserting only those notes of Dr. Lieber's which were judged to be of primary value, or which bore in the way of modification or correction upon the text.” A few notes by the editor are added, and a number of small corrections in idiom and style have been made, much to the improvement of the work. Otherwise it is unchanged, and is presented to us by the publishers in two handsome volumes.
Reports of Cases decided in the Circuit and District Courts of the United States
for the Ninth Circuit. Embracing Cases at Law, Civil and Criminal, in Equity, Admiralty, and Bankruptcy, and Cases on Appeal from the American Consular and Ministerial Courts in China and Japan. Reported by L. S. B. SAWYER, Counsellor at Law. Volume II. San Francisco: A. L. Bancroft & Co., Law Book Publishers, Booksellers, and Stationers. 1875.
The first volume of this series was published somewhat less than two years ago, and was noticed in our seventh volume, p. 722. The present volume seems to us a great improvement on it in many respects, and contains little or
nothing that is not worth reporting, while many of the cases are very interesting. There are, of course, some that are of purely local value, as Lamb v. Vaughn, p. 161; Mizner v. Vaughn, p. 371; and Starr v. Stark, p. 603, three of the longest cases in the volume, which involve the construction of certain conveyances, covenants, and bonds made between three or four parties originally owning a tract of land known as the “ Portland land claim,” upon
which a large portion of the city of Portland now stands. These cases are naturally interesting on the Pacific coast, where questions as to the title of public land have been a fruitful source of litigation for years; but they are not valuable to the Eastern practitioner.
Moorman v. Hoge, p. 78, is a trade-mark case. The plaintiffs, manufacturers of whiskey, or their predecessor in business, one Cutter, had devised a barrel of peculiar shape, in which the whiskey of their manufacture was put up for sale, and which became well known as their barrel. On it were certain brands or marks, which, together with the barrel, they claimed as their trade-mark; and the barrel, with these marks, was duly registered as such by the Commissioner of Patents. The court found that the barrel had become very generally known on the Pacific coast as the “ Cutter Barrel,” so that any one familiar with the trade, seeing it at a distance, would expect to find it containing “ Cutter whiskey.” The defendants had their whiskey put up in barrels which were clear imitations of the plaintiffs' barrels, but were differently branded. The court held the certificate of registration not conclusive, following the rule as to patents, and after a careful discussion decided further that while a vessel or package of peculiar shape may be used as auxiliary to a trade-mark, and may be of service in helping to establish the fraudulent intent of imitators, it cannot itself, independent of the marks upon it, be a trade-mark. The contrary decision would doubtless have extended the law of trade-marks further than it has been carried in any decided case that we are aware of; but at the sarne time we are not sure that such an extension would not have been entirely justifiable on principle, and that the reason of the law did not require it. Where purchasers have learned to associate with a manufacturer's goods the peculiar package in which they are enclosed, to expect when they see that package that it contains his wares, an intentional imitation of the package is just as much a fraud on the public, and quite as great an infringement of the manufacturer's rights, as if a less obvious distinction, as a letter or number, though technically a mark, alone were copied. We hope the case will be carried further.
We have left ourselves little space for the discussion of the cases which we had marked for notice, and can therefore mention only McKay v. Campbell, p. 118, which decides that the child of an English subject and a Chinook woman, found by an accurate computation contain nine-sixteenths of Indian blood, is not a citizen of the United States, though born thereili, a decision which disfranchises quite a number of voters who have hitherto helped to shape the policy of Oregon; In re Haake, which holds that in bankruptcy a secured creditor will be allowed to apply the proceeds of his security to the payment of interest on his debt accruing after the adjudication, if the contract stipulates that the debt shall draw interest till paid; and In re Clifford, where Hoffman, J., discusses the effect of the delivery to the purchaser of an