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we thus finally arrive at the ultimate authority. But why not refer directly to the case in point, instead of through another text-book ?
These volumes are in many parts as interesting as a romance. Besides the many accounts of murders and other extraordinary crimes of the more sanguinary sort, gleaned from the writers of France and Germany, as well as from those of England and this country, and used in copious illustration of the value or worthlessness, as the case may be, of the indicia or circumstantial evidence adduced in criminal trials, there are, in connection with the subject of survivorship, instances given of famous shipwrecks, including even the recent horror of the Atlantic disaster; incredible anecdotes in connection with the subject of mistaken identity, such as the Tichborne trial showed; cases of feigned pregnancy and delivery, where the disposition of large estates depended upon the birth of a child; and many other equally wonderful things. The difficult question of evidence in cases of rape is illustrated by two instances, where the plaintiff, who was the only witness, was, at the time of the alleged offence, under the influence of chloroform. The question was whether the will of the plaintiff could have been so far overcome as to render the act of the defendant criminal, if at the same time sufficient consciousness remained on the part of the plaintiff to enable her to realize what was done, and to remember it clearly enough to give reliable evidence thereof afterwards. In each case the defendant was convicted, and the author shows at length the possible injustice of the verdict. A further question raised was, whether in such a case the offence amounted to rape at common law, since no actual force was used to overcome the will. But the better opinion is now that it is the absence of will on the part of the female that is the test, though a case in Michigan held that intercourse with a woman in an advanced stage of dementia approaching idiocy was not rape, if perpetrated without opposition on her part. This is an appalling doctrine, and happily such cases are now covered by statutes in most of the states. The decision may well be questioned, however, on common-law grounds. The author returns once more to his proposal for rendering the testimony of experts of use in criminal inquiries, namely, that a board of official experts be appointed, to whom should be referred all questions of special knowledge. This plan has been proposed by the author in his other works, and it finds support in many other quarters where we may rationally look for light on projects tending to the improvement of the law. There are difficulties in the way of the proposed solutions, however, inherent in the common-law procedure. They are well pointed out 1 by Mr. Stephen in his suggestive work on criminal law, pp. 209–219.
In examining the volume before us we have noted a dozen or more typographical errors, which, in a work of this price and pretension, is at least a dozen too many.
Commentaries on the Law of Marriage and Divorce, with the Evidence, Prac
tice, Pleading, and Forms ; also of Separations without Divorce, and of the Evidence of Marriage in all issues. By JOEL PRENTISS BISHOP. Fifth edition, revised and enlarged. Boston: Little, Brown, & Co. 1873.
We were rather at a loss to decide in what terms of fitting commendation we could express our sense of the merits of this new and improved edition of VOL. VIII,
an excellent and indispensable text-book, without running the risk of offending the modesty of its distinguished author, when all doubts on that subject were at once happily and effectually dispelled by turning to his preface, from which we quote the following passage:- .
" It was a little more than twenty years ago that the first edition of this work, in one volume, was published. In it the author, then unknown to fame, and not far advanced in years, undertook the labor of reducing a discordant and heterogeneous mass of judicial decisions and dicta to order, and drawing from the whole, and from principles recognized in other departments of our law, and from the fountains of natural justice, those judicial rules which ought to govern the courts in future marriage and divorce causes. How well or how poorly the work was done it is not for me to say; but it is a simple fact, patent to all who look into our reported cases on this subject, that, since this work was published, it has been the work, almost the only one, consulted by practitioners and judges examining questions treated of in it. Seldom, indeed, is any other elementary book referred to in the opinions of our American courts in this class of cases delivered since the first edition of this work appeared. It is the only book which has found sufficient sale to justify publishers in keeping it in the market; though at the time of its publication there were two English reprints and one American work soliciting professional patronage. Its views have been adopted by the courts, its language and forms of expression have been wrought into judicial opinions; till, at last, it has ceased to be what it was so peculiarly at first, an aggressive work, and it seems now to have taken the place which many deem to be the only one appropriate for a legal treatise, that of the humble rock echoing the sounds of wisdom which fall upon it, but sending forth no note of its own.".
Nothing surely need be added to this; and we have no hesitation in saying to our readers (whom we advise to buy and use the book), that they may place more confidence in these ingenuous statements than they would be likely to inspire in our sceptical and unbelieving generation.
Wisconsin Reports. Reports of. Cases argued and determined in the Supreme
Court of the State of Wisconsin, with Tables of the Cases and principal matters. Prepared and edited for the Reporter, by JAMES SIMMONS. O. M. CONOVER, Official Reporter. Vol. XXIX., containing cases decided at the June Term, 1871, and the January Term, 1872. Chicago: Callaghan & Co. 1873. The Sanie, Vol. XXX., containing cases decided at the January and June Terms, 1872. Prepared and edited for the Reporter, by James L. High.
One of the most interesting cases in these volumes is that of Spaulding v. The Chicago f Northwestern Railway Co., 30 Wis. 110. That was an action against the defendant corporation to recover damages for injuries to plaintiff's woodland, by fires alleged to have been caused by sparks escaping through the defendant's negligence from one of the defendant's engines. The defence was as follows: The statute 6 Anne, c. 3, provided that no action should be maintained against any in whose house or chamber any fire should accidentally begin. The statute 14 Geo. III. c. 78, ordained that “no action ... shall be had against any person in whose house, chamber, stable, barn, or other building, or on whose estate, any fire shall, after June 24, 1774, accidentally begin, nor shall any recompense be made by such person for any damage thereby, any law, usage, or custom to the contrary notwithstanding." The common law of England, including acts of Parliament prior to the Revolution, is in force in Wisconsin, as far as it is adapted to the condition of society, and except as modified by the constitution and positive laws. Blackstone's interpretation of the statute 6 Anne, c. 3, extended it to cases of negligence on the part of the owner. 1 Bl. Com. 431. That interpretation was adopted in Kellogg v. The C. f. N. Ry. Co., 26 Wis. 223. The statute 14 Geo. III. c. 78, was merely a re-enactment and extension of the previous statute, and the words, or on whose estate," bring the case of railroads within the purview of the statute. The court admitted the statute of Anne, with Blackstone's interpretation, to be part of the common law of the state, but denied that the statute 14 Geo. III. was such. The statute was passed in 1774, on the eve of the Revolution, and never was in practical force in this country prior to the separation. The reason of the rule admitting such portions of the common law and of the acts of Parliament as were suited to our circumstances, was, that the same had been acted upon and ratified by our ancestors as part of the jurisprudence and laws of the colonies before the separation. This cannot be said of this statute passed so late as 1774. But if it is to be held otherwise, then the construction put upon the statute by the English courts must be accepted with it, and they have held that it does not cover cases of negligence. Filliter v. Phippard, 11 Ad. & El. N. 8. 347. Furthermore, assuming that the statute is a rule of law here, and that “accidental” included " negligent," it would be very doubtful whether the phrase, “or on whose estate," could be extended to cover railroads, - a case not in the contemplation of the legislature, as railroads were not in use till long after the date of the statute. Hence in no view can the English statutes avail the defendant. In the same case the question was considered as to whether the presumption of negligence on the part of a railroad arises from the mere fact of fire having escaped from the engine, by which property was destroyed. It was admitted that there is a clear and decided conflict of authority. The point had not been directly passed upon in Wisconsin, but the general principle of Galpin v. The C. 8. N. Ry. Co., 19 Wis. 608, was here held to sanction the rule that in such cases the burden is upon the railroad to show affirmatively that the engine was properly constructed and properly managed. This is the English rule. Aldridge v. The Gr. W. Ry. Co., 3 M. & G. 515. From Allard v. Lamirande, 29 Wis. 502, it appears that champerty is subject to common-law rules in Wisconsin. In that case the attorney was to carry on an ejectment suit, and to receive half the land if successful. This agreement was held not champertous, inasmuch as it was not stipulated that the attorney should carry on the suit at his own expense. In State v. Hill, 30 Wis. 416, it was held that the omission to state in an indictment for forgery that the note in question was stamped, was not a fatal defect, since the note was not void for want of a stamp, unless it appear that the stamp was fraudulently omitted. In Lawson v. The Milwaukee & Northern Railway Co. et al., 30 Wis. 597, the court recognized the rule as established that the legislature has power to authorize towns, counties, and incorporated villages through which a railroad passes to subscribe to its stock, saying that when the validity of such subscriptions first came before the court it felt constrained to uphold it on the ground of authority, regardless of principle. Strahlendorf v. Rosenthal, 30 Wis. 674, decides that an employé takes upon himself all the ordinary risks of his employment, but if there are other risks peculiarly within the knowledge of the employer, and that cannot be known to the employé, and the former does not give due warning of them, he is liable for injury resulting to the employé therefrom. Sutton v. The Town of Wauwatosa, 29 Wis. 21, contains an elaborate discussion of the question how far the fact that the plaintiff, in an action for damages resulting from a defect in the highway, was engaged at the time in an illegal act, precludes him from recovering for his loss. The plaintiff was driving cattle over a bridge on Sunday, - an illegal act, — and the bridge broke through, and some of his cattle were killed. In an able opinion delivered by Dixon, C. J., it was held that the plaintiff was entitled to recover. This opinion was shown to be supported by a great weight of authority, though the rule in Massachusetts is otherwise. Bosworth v. Swansey, 10 Metc. 363. The case of Gregg v. Wyman, 4 Cush. 322, which was an action of tort for the immoderate driving of a horse unlawfully let on Sunday, and which Mr. Chief Justice Dixon considered as governed by the same principle, has been expressly overruled in the recent similar case of Hall v. Corcoran, 107 Mass. 251. The cases as to injuries received on the highway where the plaintiff was travelling unlawfully on Sunday are still law in that commonwealth.
We cannot help thinking that it would be matter of congratulation to the state of Wisconsin if the three very able and learned justices now constituting her supreme court of last resort were re-enforced by at least two more of equal weight and character. At present, when one dissents, the prevailing opinion is necessarily supported in every instance by the smallest preponderance, at least in numbers, possible in any court consisting of more than a single judge.
The promptitude with which these volumes have appeared compares favorably with the state of things in most other states, though it is to England that we must now look for a model of system and despatch in the publication of reports. The fact that an American lawyer constantly has access to the English reports several months before the appearance of those of his own state of a corresponding date, by no means contributes to bear out our proverbial reputation for enterprise and despatch.
A Practical Treatise on the Law of Covenants for Title. By WILLIAM HENRY
RAWLE. Fourth edition. Boston: Little, Brown, & Co. 1873.
This work fairly deserves to be called a legal classic. It manifested, even in the first edition, the author's sound and exact training in his special department, and older practitioners as well as younger students will recall with grateful acknowledgment the clear light thrown by it on their path, not merely in respect to the recent development and practical application of this branch of the law, but particularly in regard to the originals of the law of real property, as this system was in its beginning and essential features little else than the law of covenants of title.
The modern portion of this topic presents a sufficient field for study per se;
but one who investigates it without a full and precise knowledge of its sources is more likely to produce than to remove obscurity in discussing it; to give us a digest and not a treatise on the subject. With Mr. Rawle the case was far otherwise, and his natural and inherited capacity for the task was doubtless much fostered by his experience as a conveyancing counsel; one who, according to the distinction as clearly observed in Pennsylvania as in England, devotes himself solely to the science, and leaves to the mere conveyancer the mechanical drudgery of that department of the law.
To this edition high praise is due. The author has in no respect rested on his reputation, however well established, or given the merely perfunctory discharge to the editorial duty so commonly limited to a few textual changes, or the accumulation of ill-digested decisions. The book, on the contrary, has been revised and rewritten with thorough, we might well say affectionate, care; and with all its solid basis of learning will be found as practically useful to the conveyancer as the treatises of Sugden or Jarman.
The new labor upon the work will be found especially in the chapters on Measure of Damages and Equity Jurisdiction. The former topic presents many questions in which further adjudication is still requisite to settle the law; indeed some decisions have appeared so recently as not to be included even in this edition. See Pumpelly v. Phelps, 40 N. Y. 59; Burr v. Stenton, 43 id. 462; Clarkson v. Skidmore, 46 id. 297, &c. But the discussion in this present volume has been carried so far, and the principles so clearly educed, that judicial labor will do little more than to enforce or confirm our author's conclusions.
United States Digest. A Digest of Decisions of the various Courts within the
United States. By BENJAMIN VAUGHAN ABBOTT. New Series. Vol. III. Annual Digest for 1872. Boston: Little, Brown, & Co. 1873.
By this volume Mr. Abbott has added promptness to his many merits, a trait so rare among our reporters as to seem almost a virtue. The author's capacity and experience are large and widely known, and we find his usual care in the form and arrangement of this volume. Little, however, need be said of Mr. Abbott's merits or defects; they are familiar to every one, and are probably unchangeable.
Hubbell's Legal Directory for Lawyers and Business Men, containing the names
of one or more of the leading and most reliable attorneys in nearly three thousand cities and towns in the United States and Canada. Also a synopsis of the Collection Laws of each state and Canada, with instructions for taking depositions, the execution and acknowledgment of deeds, wills, &c., and a concise synopsis of the Bankrupt Law, with Registers in Bankruptcy. Also times for holding courts throughout the United States and territories for the year ending May 1, 1874. J. H. HUBBELL, editor and compiler. J. H. Hubbell & Co., New York, 17 Nassau St.
This work is issued annually, and the present is its fourth year. It seems to be calculated to make every man his own lawyer, as far as furnishing him with the law and practice of each state and Canada, relating to the collection of debts, taking of depositions, and execution of deeds, will do