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Branson v. Coffin, p. 175, contains a learned judgment by the present Chief Justice on covenants running with the land. The owner of land conveyed to a railway company a strip of his land, and covenanted that he, his heirs and assigns, would "make and maintain a sufficient fence through the whole length of that part of the railroad which runs through my farm." This was held to convey to the company an interest in the nature of an easement in his adjoining land, and to create such a privity of estate between the parties that the covenant to maintain the fence ran with this adjoining land, and was an incumbrance upon it within the meaning of a covenant against incumbrances in a subsequent conveyance. Among the minor rulings in this case was one that the covenant clearly implied that the fence was to stand wholly on the land adjoining that conveyed, and not half on each.
In Denham v. The County Commissioners of Bristol, p. 202, " private ways," as laid out under the statutes, are held to be public highways, and therefore are constitutional, although they are called private ways. Tyler v. Sturdy, p. 196, contains much learning on the subject of ways by dedication and prescription: public footways may still be created in this state by dedication.
May v. Rice, p. 150, deserves some attention. The defendants hired a store of the plaintiff, by an oral agreement, "for one year from June 1, 1868, for a rent of $3200 per year, payable quarterly, and the taxes." In May, 1869, it was agreed that the defendants might remain after the year " at the same rate," and that either party might terminate the tenancy by one month's notice in writing. On June 2, 1869, the tenants gave notice "that they should leave the store on July 1." In an action for rent and the taxes for 1869, it was held that the notice to determine the tenancy at will under the second agreement need not expire at the end of a quarter, but might be given at any time, and that the notice which was given, although too late for July 1, was sufficient to determine the tenancy on July 2 ; and also that this agreement was not on the same terms as for the first year, but at the same rate, and that rate being $3200 and the taxes, the amount due for one month and two days was about one-twelfth of $3200 and of the taxes for 1869. It is not easy to see how a notice to quit, specifying July 1 as the end of the tenancy, can be a good notice to determine it on July 2. Heretofore the rule was understood to be that the notice must require the tenant to quit, or state his intention to quit, at the proper time. Woodfall, L. & T. 309; Currier v. Barker, 2 Gray, 224; Oakes v. Munroe, 8 Cush. 282; Sanford v. Harvey, 11 Cush. 93. The decided cases are not referred to, and we are hardly warranted in supposing them overruled. It is more difficult to see why the tenants were not liable to pay the taxes for 1869; by the agreement for the first year they were to pay " the taxes," and the taxes of May 1, 1869, fell within that year; and upon the construction given to the agreement for the second year, it would seem that they were liable for the whole taxes for 1869, and one-twelfth besides in respect of the tenancy for part of the second year. It is also to be noticed that at the beginning of the opinion the first year is said to have terminated on May 31, 1869; the statement of facts says that the lease was "for one year from June 1, 1868," and, according to former decisions, the tenancy would have commenced on June 2, 1868, and ended on June 1, 1869. Atkins v. Sleeper, 7 All. 4S7.
Ingalls v. Herrick, p. 351, is a case involving the question as to what evidence of delivery is necessary to make a sale of chattels valid against an attaching creditor. The plaintiff bought certain bales of wool stored in the seller's factory, and asked to have them remain there for a while, offering to pay storage. The seller agreed to this, and the plaintiff received a bill of parcels, and samples were sent to him. The bales were afterwards attached by the defendant. It was held, reversing the ruling of the judge at the trial, that there was evidence of delivery which should have been submitted to the jury. The acts which constituted the delivery are not pointed out, but the conversation about leaving the goods on storage seems to be some evidence that the seller continued to hold them as warehouseman for the plaintiff. But the court says, " The possession of personal chattels by the vendor after an alleged sale is not conclusive evidence of fraud. Upon proof that the sale was made in good faith and for a valuable consideration, and that the possession after the sale was in pursuance of some agreement not inconsistent with honesty in the transaction, the vendee might hold against creditors." This is the rule of the common law, but the case of Lanfear v. Sumner, 17 Mass. 110, was supposed to have introduced into Massachusetts law the anomaly that absence of delivery not only was evidence of fraud, but absolutely prevented the property from vesting as against creditors and purchasers. Some have thought that that case was founded on a misunderstanding of the civil law. If it proceeded on the ground that absence of delivery is conclusive evidence of fraud, it was long ago overruled. This case affords reason for thinking that the court adopts the sound and sensible doctrine mentioned in the judgment; but it is to be regretted that occasion was not taken to state distinctly that no delivery was necessary, but its absence was only evidence of fraud to be considered by the jury. The rule which made delivery essential required only a useless formality, and provided a trap for the unsuspecting.
Mandell v. Green and Howland v. Green are two suits which grew out of the compromise of the celebrated " Howland Will Case." In Brown v. Broum, p. 388, a lady, eighty-six years of age and insane, prevailed in a writ of entry to recover an estate in a house for her own life against another lady of eighty-five, showing that the pleasure of litigation and desire for justice are not extinguished during the ordinary life of man. There are also a number of cases of local interest; not the least interesting is Edmands v. Boston, involving questions concerning the assessment of damages for land taken to widen streets. It should be noticed that Sprague v. Quinn and Sanders v. Partr'ulge are important as correcting some dicta in former cases on the subject of landlord and tenant.
The typographical work in this volume is generally well executed. There is no apparent reason, however, why certain proper names should be deprived of their initial capital, and printed "supreme judicial court," "queen's bench," &c., instead of " Supreme Judicial Court," " Queen's Bench," &c. This gives the book an illiterate appearance, as also in the division of words at the end of a line does the joining of the consonants to the preceding syllable (e.g., rec-ord, dec-laration, liq-uor, noth-ing) instead of placing them where they belong according to the etymology of the word. The binding of this and the other volumes of the series is of a very ordinary kind
United States Digest; a Digest of Decisions of the various Courts within the United States, from the earliest Period to the year 1870; comprising all the American Decisions digested in thirty-one volumes of The United States Digest, with careful Revision and important Additions. By BenJamin Vaughan Abbott. First Series. Vol. I. Abandonment— Assignment. Boston: Little, Brown, & Co. 1874.
Mr. Abbott proposes to give in twelve volumes the contents of the thirtyone volumes which compose The United States Digest up to the year 1870, so rearranged as to make it a single work; and the present volume enables us to examine his method and to judge with what success the task will be done. The unwieldy bulk of the annual digest has long made such a revision as this desirable; and Mr. Abbott's experience and skill in such matters have fitted him so admirably to undertake it that the profession had a right to expect excellent work from him. We are satisfied that their expectations will not be disappointed.
The volume contains, under the single head of Appeal, statements of more than six thousand decisions; and we have therefore not undertaken to examine the cases themselves in order to satisfy ourselves that the statements are accurate. No such examination is necessary, however, to discover that they are singularly clear and concise, — models, in their way, of the compact style which the work of digesting naturally fosters. In short, notwithstanding our supposed inclination as critics to blame rather than praise, we are unable to suggest any respect in which the plan of the work could be amended, or the editor's manner of carrying it out improved. It is possible, of course, that defects may exist which will be discovered when the volume is used; but they are defects which are not apparent on such an examination of the work as we have been able to make.
In speaking thus strongly we would not be understood, however, as abandoning any of the opinions which we expressed in the last number of the Review in the notice of Mr. Brightly's Digest. We then said that the best method of stating a case for a digest was to give the facts first, and then the decision; and for a digest of reports we are satisfied that this mode is to be preferred. These views, however, do not apply to a work like Mr. Abbott's. His object is to compress. If he adopted this method, the result would be expansion. The limits of his work require him to put into one volume the substance of one hundred and fifty volumes of reports. The three volumes of the Massachusetts Digest represent only one hundred and two volumes; and if the system, therefore, which is proper for that work were adopted by Mr. Abbott, instead of twelve, he would give us some fifty or sixty volumes. In other words, upon such a plan the work could not be done. Nor indeed is it desirable. Mr. Abbott's volumes are to be a dictionary rather than a digest. The student will not consult them with any view of discovering what a given case holds, but only to ascertain where to look for cases which will bear upon the subject he is examining, and he will expect to find only such a statement of a case as will serve to identify it and place it under its proper head. Forv all the purposes for which such a digest is needed, Mr. Abbott's work seems admirably suited. If he were to attempt more, he would only destroy its value for its proper uses without making it valuable for any other.
The mechanical execution of the volume is of unusual excellence, the binding especially being among the best specimens of American law binding that vie have seen.
Reports of Cases determined in the District Court of the United States for the District of Maine and Massachusetts, with some Opinions of the District Judge in Cases determined in the Circuit Court. By Ashur Ware, District Judge. Vol. III. By George F. Emery. Portland: Loring, Short, & Harmon. 1874.
This volume contains all of Judge Ware's opinions that have not previously appeared either in the volume which bears his name, or the other, usually cited as " Daveis' Reports," and thus completes the record of his judicial career. His well-established reputation as an admiralty judge makes it very desirable that his opinions should be preserved; and those found in the present volume are characterized by the same excellence which has given weight as authorities to those already published.
About fifty cases are reported, and of these nearly half arose in the district of Massachusetts, and were decided by Judge Ware on account of the temporary illness of Judge Sprague. Most of the opinions were delivered before the rebellion, from the year 1853 up to 1861, and only one involves any question growing out of the war. The commerce carried on in the district of Maine is not such as to raise many embarrassing questions for its admiralty court, if we may judge from the character of the cases reported in this volume; and as a prize court it had little or nothing to do. Cases of that sort naturally arise in the great commercial cities; and we therefore have no contribution from Judge Ware to the legal history of the rebellion.
It is interesting, however, to notice the litigation which attended the birth of ships whose names have in a certain way become historio, like the Young Mechanic, a name not without associations for the Boston bar; and the Peruvian, whose disastrous wreck on Nantucket Shoals has not yet faded entirely from public recollection.
We hope that the volume will be well received, as we infer that it will help the family of Judge Ware, whose forty years upon the bench have given him some claim upon the gratitude of his profession; the more particularly that Congress refused to give him the benefit of the provisions now made for federal judges whose age or infirmities make their retirement desirable.
Commentaries on Equity Jurisprudence, as administered in England and America. By Joseph Story, LL.D. Eleventh edition. Carefully revised, with extensive Additions. By F. V. Balch. In two volumes. Boston: Little, Brown, & Co. 1873.
It is now nearly forty years since Judge Story's great work on Equity was first published; but it still retains its unquestioned position at the head of the treatises on this subject, while the demand for it seems constantly increasing. Of the eleven editions through which it has passed four have been issued since 1860, and it is only three years since Judge Redfield's edition, the immediate predecessor of the present, was published. The present editor has added to the work some three thousand cases, a fact which testifies alike to the enormous growth of equity jurisdiction and to his own unwearied patience and industry.
In all the states the doctrines of equity are receiving constantly new extensions, and its summary and flexible processes are invoked to settle disputes which till recently were only decided by tedious litigation in courts of law. It deals with the most important questions, and those which involve the largest amounts of property; and if the experiment which the English Judicature Act has inaugurated in that country shall prove successful, we may anticipate such reforms in our procedure here as will give a still wider range to its methods and doctrines. It is not surprising, therefore, that there should be a constant demand for Story's Equity. No other existing textbook can take its place for the American bar.
Mr. Batch's additions consist almost entirely of notes containing references to cases; and he has done his work most thoroughly. We are satisfied that his notes make the present edition a complete compendium of equity law.
The Law of Municipal Corporations. By John F. Dillon, LL.D., the Circuit Judge of the United States for the Eighth Judicial Circuit, Professor of Law in the University of Iowa, and late One of the Justices of the Supreme Court of Iowa. Second edition. Revised and enlarged. 2 vols. New York : James Cockcroft & Co. 1873.
It is rarely that an author of a text-book in an almost untried field of authorship meets with such universal approbation that before an unusually large first edition is fairly before the profession he and his publishers feel justified in preparing for the production of a revised and enlarged second edition. Within some twelve months since the issue of the first edition, which, by the way, we noticed at some length in 7 Am. Law Rev. 335, Judge Dillon has prepared a revision which must have cost him incessant labor, for he tells us in his preface that "the text and notes " have been "prepared without the assistance of others." The first edition was in one volume, published in Chicago, and containing 802 sections. In the second edition, published by the same publishers, but in New York, we find the same number of sections divided between two volumes. The increase in volumes is due to the addition of notes and later cases, and in some part to a revision of the original sections. "The principal changes have been made in the chapters which treat of municipal securities, taxes, and assessments;" but the whole work seems to have been revised and annotated with conscientious, affectionate care.
If any one doubts the importance of the subjects discussed, he may read the author's statement that the amount of negotiable bonds of municipalities largely exceeds the sum of the indebtedness of all the states, and then fortify himself for impending business by reading the sections and notes devoted to municipal securities. Although considerable changes have been made, our views of the work remain as before expressed.
This branch of the law is of such imporance in America, and, strangely enough, has had so few expositors anywhere, that an author here would be certain of success, without regard to the character of his work. We mention this merely to say that, although Judge Dillon's position, from the nature of