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One of the longest cases in the volume is Lockwood v. Iechani so National Bank. This and four other cases, brought by the same pl: intiff against other banks, were actions on the case to recover damages against the defendants for refusing to permit transfers to be made on their books to the plaintiff of certain shares of their capital stock, which had been assig ied to him. The defendants justified their refusal under their by-laws, wł ich prohibited the sale or transfer by any stockholder of his stock while he ras indebted to the bank, and in three cases permitted the stock to be sold at a uction for the payment of such debts. The question whether the banks hd power to make such by-laws was elaborately argued, and the court in a cireful opinion sustained the power.
In Gardner v. Hope Insurance Co., the question how far the legislature, by altering a corporation's charter, can take away vested right i, was raised. The plaintiff bought shares in the capital stock of an insurance company whose charter exempted the stockholders from any liability for its losses beyond the amount of their shares, the charter being subject to amendment or repeal. An act subsequently passed authorized the stockholders in such companies, in case their capital was impaired, to assess upon the stockholders such sum as should be necessary to restore it to its original amount. The plaintiff claimed that this act was unconstitutional as impairing the obligation of the contract made between the corporation and the plaintiff by the purchase of the shares, but the court decided in favor of the act. Such cases are interesting in view of the indications that the decision in Dartmouth College v. Woodward can no longer be considered as a final determination of the questions which were raised in that case.
We have not space enough to mention the other important decisions in the volume, and must dismiss it with a less extended notice than its merits deserve. Mr. Tobey is a careful and accurate reporter, and the Rhode Island Reports, in his hands, will rank among the best in the country.
Digest of Fire Insurance Decisions in the Courts of Great Britain and North
America. By H. A. LITTLETON and J. S. BLATCHLEY. With the Additional Notes to the Second Edition. By STEPHEN G. CLARKE. Third Edition, revised and enlarged. By CLEMENT Bates, of the Cincinnati Bar. New York: Baker, Voorhis, & Co., Publishers, 66 Nassau Street. 1873.
This valuable book is well known to the profession, and has been regarded with favor since its first publication, now somewhat more than ten years ago. The present editor has added three hundred and sixty-two cases, and brings the work down to June of the present year.
The majority of the new cases are taken from the reports of the western states, the insurance companies in which seem to make it a regular rule to contest every claim for a loss, if we may judge from the space in most of their reports which is occupied by insurance cases. The multitude of conditions printed in the policies gives ample opportunity for contest, but the general adoption of the rule by insurers is calculated to deprive the insured of that indemnity which it is the object of insurance to give. Juries, and courts too, taking the general view that the object of insurance is protection against loss by fire, and not merely the enriching of the underwriter, seem little inclined to encourage the companies in their efforts to enforce the letter of their bond, and possibly the expense attending a losing fight may gradually drive the insurers out of court, and make insurance cases as rare as the result of the present editor's researches seems to indicate that they are in Great Britain; for, notwithstanding the title of the book, we have noticed among his additions only a single English case, and that, apparently, an appeal from Australia.
Mr. Bates appears to have done his work well, and his Digests are made with care. We have no doubt that the present edition will meet the same reception as its predecessors, for books of this sort are extremely useful to the practising lawyer.
Reports of Cases heard and decided in the House of Lords on Appeals and Writs
of Error during the Sessions 1831, 1832, and 1833. By C. CLARK and W. FINNELLY, Esqrs., Barristers at Law. Edited, with Notes and References to American Law and subsequent English Decisions, by J. C. PERKINS. Vol. I. Boston: Little, Brown, & Co. 1873.
In reprinting the twelve volumes of Clark and Finnelly's Reports, the publishers have done the profession in this country a valuable service. Of the reports themselves we can say nothing that is not already matter of familiar knowledge. The judges who pronounced the decisions they contain, and the counsel on whose arguments those decisions were founded, were among the most distinguished lawyers that England has known, and it is therefore most desirable that the record of their labors, which is found in these volumes, should be placed within the reach of every student. Than Eldon, Lyndhurst, Tenterden, Sugden, Bethell, and Scarlett, he can have no better instructors.
The American editor, Mr. Perkins, has made the reports more valuable to the American bar by the notes and references to subsequent English and to American decisions which he has added. His long experience and well-earned reputation as an editor afford sufficient guarantees that the work is well done. The seven volumes already published contain the decisions from 1831 to 1840 inclusive, and are unusually handsome law books. Indeed, in a reprint, the manner in which the mechanical work is done affords almost the only subject for the critic, and this, in the present case, leaves little to be desired.
Cases argued and determined in the Circuit and District Courts of the United
States for the Seventh Judicial Circuit. By Josiah H. Bissell, of the Chicago Bar, Official Reporter. Vol. I. 1851-1867. Chicago: Callaghan & Co. 1873.
MR. Bissell tells us in his preface that this volume is the work of the early and late hours of a practising lawyer, and “is the first of a series which is designed to include the leading decisions of the United States Circuit and District Courts for the Seventh Judicial Circuit since the time of McLean's reports, and to form with them a continuous and harmonious series." He also says, “ A number of cases here reported have been carried to the Supreme Court, as will appear by the notes added thereto; but the opinions below are published here, either as containing a fuller discussion of the principles involved, or because the case was decided in the upper court on some point of practice or question not considered below.” As appears by its title, the reporter had to deal in this volume with the difficult task of exhuming and revivifying old opinions, - opinions delivered from 1851 to 1867. He has wisely made this volume a useful one by annotating the cases, referring to other reports and later decisions, and giving a brief statement of the history and progress of the respective questions passed upon by the courts. But although he states in his preface his reasons for undertaking this task, and his hopes for its success, he nowhere gives a reason for publishing as decisions various charges to juries which encumber his pages. To require a long-suffering and over. worked profession to search for authorities through such reports as they get from some quarters would seem cruel enough; but what shall we say of the reporter — himself a lawyer — who devotes his "early and late hours” to publishing sixteen charges to juries as a part of ninety-one decisions? And we are the more surprised, because the rest of the volume shows care and skill, and is a very creditable and useful work. We notice, among the reported cases,
The Flora, p. 29, decided in 1853, which is said to be the first case declaring the doctrine that the admiralty jurisdiction of the district courts upon the western lakes and rivers did not depend upon the act of February 20, 1815. In a note to this case the reporter has made a valuable collection of cases on the admiralty jurisdiction.
Davidson v. Smith, p. 346, decided in 1860, before the present United States bankrupt law was passed, was an action on a judgment rendered in the Circuit Court of the United States for Illinois against the defendant, a citizen of Wisconsin, in favor of the plaintiffs, citizens of Illinois. That judgment was rendered in a suit on a judgment of the Supreme Court of New York. The defendant here pleaded in bar that the original judgment in New York was on his promissory note, made and payable in New York; that, subsequent to the two judgments, he was discharged under the insolvent laws of that state. To this plea the plaintiffs demurred. Held, that the plaintiffs were bound by the discharge, and could not maintain their action.
There are several important decisions on patents, which we have not space to notice.
Reports of Cases argued and determined in the Supreme Court of the State of
Wisconsin, with Tables of the Cases and Principal Matters. O. M. CONOVER, Official Reporter. Vol. XXXI., containing cases decided at the January and June Terms, 1872, and the January Term, 1873. Chicago: Callaghan & Co., Law Publishers. 1873.
AFTER noticing in our last issue the two preceding volumes of Wisconsin Reports, we hardly expected to receive another so soon. To be able to report decisions of cases which were argued within the current year puts a reporter in an enviable and conspicuous minority among his brethren, and, provided his work be also thoroughly done, should obtain for him the lasting gratitude of the profession. It also speaks well for the industry and conscientiousness of the three judges who compose the Supreme Court of Wisconsin, that their reporter does not lack materials. We are sorry that Mr. Conover does not resist the temptation to print so many of the briefs of counsel. We are aware that it is well sometimes to show the path by which the court arrived at its conclusion, but, at the same time, we can well spare the brief of the counsel in whose favor the cause is decided, especially when on examination we find the same citations in the opinion of the court. Our reporter is at fault also in handicapping his cases with long, confusing headnotes, too long for the lawyer who is in search of the point decided, and entirely superfluous to him who seeks the reasoning of the court. A brief, condensed statement of the facts, with the conclusion of the court thereupon, is, in our judgment, the better method. We regret we have not space to cite some of the interesting cases here reported.
A Treatise on the American Law of Easements and Servitudes. By EMORY
WASHBURN, LL.D., Bussey Professor of Law in Harvard University, author of a Treatise on the American Law of Real Property. Third Edition. Boston: Little, Brown, & Co. 1873.
The first edition of Professor Washburn's book on Easements and Servitudes was published in 1863, to meet a demand for a book on a subject upon which there was then, we believe, no American treatise.
This edition was followed by the second, in 1867, which contained about one hundred pages more reading matter than the first; and the wants of the profession have now made the publication of a third edition desirable, which, though contained in thirty pages more of text, by the use of larger pages and more compact type, adds about as much reading matter to that contained in the second edition as the second did to the first; and while in the preface to the first the author congratulates himself upon the examination of somewhat over one thousand cases, he tells us, in his preface to this edition, that there have been decided since his second edition was issued some six hundred cases, to which reference is made in the work before us. No one who is familiar with Professor Washburn's treatises can entertain a doubt that, in either case, all the authorities which were accessible to the researches of unwearied diligence were carefully considered. This work, like all his other books, is filled with honest, earnest work. One never suspects the use of scissors, or smells the odor of paste, and knows that a Digest, if used, has been used as an index merely, and not as a trustworthy source of information. This is worth mention, because it is not the modern way of making law-books, which are too often written by waiting barristers who should still be law students engaged in digesting or with the commonplace-book. Half-educated apprentices in the law, as well as in trades, are among the results of our systems of hasty education.
To make a good law-book, we take it, a good lawyer must spend an abundance of time and research upon the particular subject which he investigates and then attempts to treat; and we presume the very best law-books have been lost to the profession because the author has been overtaken, like Dr. Casaubon, by the great enemy before his matter has been arranged in a manner satisfactory to himself. Again, there are two classes of law-books, – the one, the general treatise, like Blackstone and Kent, Story and Greenleaf, in which the student may follow the science of jurisprudence, or study the general doctrines of a great subdivision thereof; the other, the treatise intended for the student who is so far advanced as to come to minute details, or the lawyer who is investigating a particular subject, or preparing for the trial of a particular case. Such are Greenleaf's Cruise, Sugden on Vendors, and Blackburn on Sales; and of this class are very few American text-books, and it is to this class the book of Professor Washburn belongs. It scarcely pretends or professes to give any general theories upon which the doctrines governing easements are based, and the author contents himself with stating merely results of the decided cases, which he has previously discussed more or less in detail, and where the courts are in entire discord in pointing out the differing views entertained by different tribunals. This examination in detail of the cases is most fair, full, and conscientious, though at times the conflict of authority is very distressing. As to the author's style, it is by no means all that could be wished; and we regret that the dedication to the Hon. Horace Binney, which abounds in awkward and involved sentences, should not have been rewritten. In its method of construction, however, the book is just what the profession desires. Lawyers care nothing for theories, except as based upon decided cases; and the result of a class of decisions being given, each lawyer will know what the law is so far as it has been decided, or, if he has a case in hand, will draw his own deduction. We think this system, too, peculiarly applicable to the law of easements and servitudes. They are the growth of civilization, the legitimate results of the crowding of mankind upon the surface of the earth. When men are living in societies, each has to sacrifice a portion of his absolute liberty for the coinmon advantage, and it is a mere matter of policy what crimes shall be punished, and what restrictions placed upon the individual. So in the enjoyment of lands and waters by a crowded population, it is a mere matter of policy how far the absolute use of each piece of natural property must be curtailed, and its enjoyment burdened for the benefit of its surroundings; and what a man may or may not do upon his own land might be very different at Rome or in ultima Thule, in the vicinity of London or in the wilds of the Rocky Mountains. A tannery, although it pollutes a tributary of the Penobscot, may be regarded as a blessing to the sparsely settled neighborhood, while a similar pollution of a tributary of the Hudson, or of the Charles, may breed a pestilence, and “ crowded cities wail its stroke.”
And it is this principle which has rendered the multiplication of cases upon easements one gauge of our rapidly increasing wealth and population.
Indeed, as Professor Washburn has said, many important easements are subjects of novel impression in this country as well as in England. For example, the right of a man to dig a well in his own land, by which a well or spring upon his neighbor's land is dried up by cutting off the waters supplying the same by percolation, was first decided in Massachusetts only so lately as 1836, in Greenleaf v. Francis, 18 Pick. 117. This same result, seven years later. was reached in England in Acton v. Blundell, 12 Mee. & W. 336, we believe. without reference to the Massachusetts case. And it appears, from a remark