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digest of them all, the lawyer would have no means of determining which corresponded most nearly with the one he was considering. To state our objection succinctly, it is that the system gives us the opinion of the reporter, instead of the opinion of the court; and that fifty cases, differing widely in their facts, but each requiring the application of the same principle, would be stated as identical. Nor do we consider it an argument in its favor that it enables a lawyer to prepare his cases without exercising his judgment in the selection of his authorities.
The vices of the method we object to are less conspicuous in Mr. Brightly's book than in many, but his occasional failures only confirm us in our opposition to it, for they show how impossible it is even for a careful writer to employ it with success. For example, the practising lawyer, for whom the book is intended, will hardly gain much satisfaction from such statements of principle as, “ Under what circumstances a court of equity, whilst refusing a decree for specific performance, will retain the bill for compensation," or, “ In what cases compensation for improvements will be allowed to an innocent purchaser, who made the same supposing himself to be the absolute owner.”
These are not illustrations of the book, for it is remarkably free from such blemishes, but are cited as results of the method, and we have discussed it thus at length, not because Mr. Brightly's work invites criticism particularly, but because the system he advocates is very extensively adopted by the reporters of decisions, and we regret that it should receive the sanction of a man whose experience gives so much weight to his opinion.
A Digested Treatise and Compendium of Law Applicable to Titles to Real Estate
in the State of New York. By James W. GERARD, Jr. Second Edition. New York: Baker, Voorhis, & Co. 1873.
Before an examination of this ponderous work of Mr. Gerard's, it had been our firm conviction, founded both upon theory and practice, that conveyancing, as it existed in this state, was a profession not only of great difficulty but of little certainty, necessitating much anxiety and labor on the part of the conveyancer, and attended with unavoidable risk to the purchaser of real estate.
We had also, as we thought, with some show of right, always credited the legislature of this state with an unusual amount of ingenuity in so successfully saddling real estate transactions with legal obstructions, and the real estate itself with liens and other similar incumbrances, as materially to harass and befog the unwary purchaser; and we had always believed that the Supreme Court had done but little to make “ that light which was all dark" before. Our ideas upon these subjects have now undergone a complete change ; we humbly confess our faults, and the evidence of our sin is before us.
Why anybody ever ventures to invest his money in land in New York, and what proportion the cost of examining the title bears to the purchase-money in that state, both interesting questions appertaining to the subject of conveyancing, are, however, left unanswered in the otherwise exhaustive work now before us.
As we believe many of our readers to be as ignorant as we ourselves were once of the elements which go to make up a good title to land in New York, we will extract for their benefit from this work a brief account of the legislative liens upon real estate in our sister state, and the duties of a conveyancer in looking up a title. We hope the perusal thereof will have the desired effect of encouraging in their labors the conveyancers of this state, who may at times have felt that there were heavy “clouds that lowered above the houses of their clients." Let them read, and be thankful that their labors are not as other men's are.
The conveyancer in New York, after searching in the Registry of Deeds for deeds, mortgages, tax sales, and other instruments for forty years back keeping in his mind the fact that married women could, even prior to the year 1818, give deeds in their own name of their separate property, and having a general regard for powers, trusts, leases, and such stumbling-blocks, and for wills in the surrogate's office, must beware of such incumbrances as these: first, Mortgages to United States Loan Commissioners, recorded in the register's office ; second, Notices of lis pendens and foreclosure by advertisement, insolvent assignments, appointments of trustees of absent debtors, general assignments, mutual insurance notes, judgments, “ only for ten years against third parties," with, however, an opportunity to creditors to extend the lien created by the same; sheriffs' and marshals' certificates, mechanics' liens, forfeited recognizances, unsafe building notices in the city of New York, liens in favor of the department of health, and jury fines, all recorded in the county clerk's office; third, United States courts' judgments recorded in the clerk's offices of the circuit and district courts and in the county clerk's.office; fourth, Orders for receivers under proceedings supplementary to execution, recorded in the office of the clerk of the county where the judgment roll is filed, or where the real estate is situated; fifth, Bonds of collectors and receivers of taxes, recorded either in the offices of the county clerk, comptroller, or county treasurer; sixth, Taxes and assessments and water-rates in the various offices · of the different departments; seventh, Taxes to the United States.
Surely the labors of Hercules were but trifles compared to an examination of the title to a block of houses on Broadway, unless the cleansing of the Augean stables was a real estate transaction, and he included the legislative incumbrances upon the title in his general clearing.
As far as the mechanical part of this work is concerned, there seems to be nothing to be desired. The print is clear, the paper and binding excellent, the index ample, and great care has evidently been taken with the supervision and correctness of the text. For many reasons, however, we think it is too big a book. With law books an increase in bulk invariably increases the price, decreases the ease with which they can be used, and increases the difficulty of finding in them what you want. It is almost impossible to do satisfactorily what the author has attempted in this book. Short treatises, which shall be worth reading, upon the complicated and abstruse subjects of the laws of real property, cannot well be united with a full digest of the statutes and the cases explanatory of their provisions. Mr. Gerard would have done better, and have made a more valuable book, if he had attempted only the latter of these objects. He is not always happy in his introductory essays and expositions of
the common law; and the difference of style, even in succeeding sections of the body of the work, is too marked to be altogether pleasant, the author's style being what is known in architectural parlance as the “florid," and the quotations from the statutes bearing as usual an unmistakable stamp of their origin.
We shall not quote further from this book, as it treats chiefly of subjects of local interest; but we wonder whether the attorney-general or the author is responsible for the statement of law and fact on page 65.
66. Traitors.' Mere traitors, so called, do not, ipso facto, lose their citizenship. 11 Op. Att’y-Genl. 317.”
On the whole, we think that this must be an exceedingly useful and valuable book for conveyancers in New York, and of some value to that branch of the profession everywhere.
The Pandects ; a Treatise on the Roman Law, and upon its Connection with
Modern Legislation. By J. E. GOUDSMIT, LL.D., Professor of Jurisprudence in the University of Leyden. Translated from the Dutch. By R. DE Tracy GOULD, M.A., Counsellor at Law. Longmans, Green, & Co. London. 1873.
This little book is so full of matter that it is difficult to give an account of it. It does not appear to contain a superfluous sentence. It is a treatise, or, perhaps more properly, a perfectly arranged collection of notes, upon the Institutes, Pandects, Code, and Novels of Justinian. It commences with a short historical account of the various editions of the Corpus Juris, and mentions the various schools of commentators, from the Glossarists, who worked in the dark with the patience and effect of blind beetles, to the historic school of to-day, whose labors have been crowned with such great success. The difficulties to be overcome, and the means to be employed to vanquish them, are the same, whether the subject to be criticised be the text of the Corpus Juris or the Greek of the Gospels. The critics of the law, however, not having been looked upon as persons seeking by their labors to undermine the foundations of the science about which they employ themselves, have either been let alone or encouraged in their work, and their success has been little less than marvellous. Some instances are curious. There is a text, — Facturus legum vetustarum interpretationem necessario PRIUS ab urbis initiis repetendum ; but we should read P. R. IUS ; Populi Romani jus. In one text a little eo makes trouble; it turns out to be what is known as a siglum, an abbreviation, e. 0.; that is, extra ordinem. CUMIL has been taken to mean cum alii ; if read cum milites, you have the text as Ulpian wrote it. Sometimes letters or syllables are transposed; for example, partes hodie should be rhapsodice.
All writings that have passed through the dark ages have been corrupted in a similar manner. The ingenuity of the monks in blundering has never been equalled, except by the ingenuity of those who have followed after them in correcting their blunders.
Terence is said to be one of the best preserved of the classic authors. Of him there are twenty thousand lectiones variantes. It is perhaps because these are all comic that he is considered so well preserved, or little damaged.
In the body of the book the author treats of rights and their divisions. 1st. Rights as to things. 2d. Right of obligations. 3d. Family rights. 4th. Hereditary rights. He also treats of Persons, the subjects of rights; and of Things, the objects of rights; then of the creation and extinction of rights, of their exercise, and of the means of enforcing them.
In simplicity of style and in directness of purpose, and also in his manner of explaining difficulties, Prof. Goudsmit reminds one somewhat of that great metaphysician, James Mill. He takes a single word or sentence and unfolds its meaning, as a father might teach his little child. His manner is in no way didactic. It is so direct and simple that his matter appears almost trivial, until the reader perceives a real difficulty has been solved, and this, too, without his suspecting that it has been attempted. To accomplish this requires a logical mind and a complete mastery of one's subject, together with much practice in the art of exposition.
But the reader need not flatter himself that this book alone will give him much knowledge of the Roman law. He must by other means penetrate deep enough into that subject to meet with difficulties. When he has arrived there, Prof. Goudsmit gives him a key, and he must be a very clumsy person if he cannot use it to his advantage.
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 of New York. Vol. X. New York : Baker, Voorhis, & Co., Publishers, 66 Nassau Street. 1873.
It has now become an established rule that the profession have the reports of cases determined in the Second Circuit within a year of their argument. This, as we have before remarked in noticing this series of reports, is very creditable to Judge Blatchford, who not only holds one of the most important and trying judicial positions in the United States, but, in addition to his neverceasing duties in the District and Circuit Courts, finds time to do well and seasonably the reporting for his circuit. We commend his example to many who devote their whole time to the latter employment. The volume before us contains the adjudications in the Circuit Court for the Second Circuit from March, 1872, to March, 1873, comprising opinions by Nelson, Woodruff, Blatchford, Benedict, and Shipman, JJ., with an appendix, containing the proceedings of the Bar of the United States Courts for the Second Circuit, on the retirement of Mr. Justice Nelson from the Supreme Court of the United States. There are a large nuniber of patent cases here reported, many admiralty decisions, chiefly on collisions, some bankruptcy causes, and others, from which we notice Gazaway B. Lamar y. Charles A. Dana, p. 34, which was an action for one hundred thousand dollars damages for an arrest of the plaintiff, made by the defendant during the Rebellion by authority of the President, and a subsequent imprisonment of the plaintiff for three months. The cause was removed from the state to the United States court, under the Act of March 3, 1863, by the defendant, and the plaintiff moved to remand the cause on the ground that, by virtue of the Act of Congress of March 2, 1867, legalizing all acts done by authority of the President respecting the arrest of any person participating in the Rebellion, or aiding or abetting therein, and forbidding all courts from taking jurisdiction of suits therefor, the court had no jurisdiction to hear it. This motion Judge Woodruff denied, deciding that he could hear and determine any questions in the cause that any court could, and that if the latter act was unconstitutional, he could decide that question when properly raised. He declined, however, to declare that act invalid on such a motion.
John J. Freedman v. Francis Sigel, p. 327, in which Judge Shipman held that, under the decision of the Supreme Court in The Collector v. Day, 11 Wall. 113, the United States could not impose a tax on the salary of a judge of the Superior Court of the city of New York, by taxing such salary as his income, although his salary was by law fixed by the Board of Supervisors of the county of New York, and was payable out of the city treasury.
Gaston De Brimont v. James F. Penniman & al., p. 436. Here the plaintiff, a citizen of France, had there married the daughter of defendants, who were United States citizens. His wife died, leaving a child of the marriage. A French statute required a father-in-law to make an allowance to a needy sonin-law, so long as a child of the marriage lived. Plaintiff obtained a judgment against defendants in a French court, they there appearing and answering, for a certain sum of money, to be paid monthly in advance, one-third for him and two-thirds for the child. Plaintiff here brought an action of debt on that judgment, to recover an amount not paid for more than two years. Held, that the action could not be maintained. This is a novel and interesting case.
Lucy D. Fisk, as Executrix of James Fisk, Jr. v. The Union Pacific Railroad Company, The Credit Mobilier of America & al., p. 518, has attracted much public attention. The point here decided, however, is merely that an injunction should issue to prevent the defendant corporation from taking any steps to put itself out of existence during the pendency of the litigation.
In The Erie Railway Co. & al. v. John B. Heath & al., p. 214, we find how much was allowed by the court to a master for receiving, registering, and delivering 6027 certificates of stock.
We have to complain in this volume of a charge of Judge Shipman to a jury on page 16, for printing which we can see no excuse, and of a want of conciseness in the index, which, in addition, is typographically obscure.
Reports of Cases argued and determined in the Supreme Court of Rhode Island.
Volume IX. John F. TOBEY, Reporter. Providence: Hammond, Angell, & Co., Printers. 1873.
The reporter of the Rhode Island decisions has not a very arduous task, and it is not often that we are called upon to notice a book from his hand. The present very handsome volume embraces the decisions in cases argued from March, 1868, to October, 1870. We should be glad if the reporters in other states, who issue ten volumes to one of this series, would follow Mr. Tobey's example, and report their cases with as much brevity and conciseness as he does. Where the materials for the reporter are so much more ample, there is the less excuse for the common devices of prolix head-notes, long reports of arguments by counsel, and unnecessary spacing.