« PreviousContinue »
“Flee from justice." — See CONSTITUTIONAL LAW, 3.
“ Gaming House." — See NUISANCE, 1.
“Mem.” — See CHECK, 3.
“Protest Waived." - See BILLS AND NOTES, 3.
A Treatise on the Measure of Damages: or, an Inquiry into the Principles which
govern the Amount of Pecuniary Compensation awarded by Courts of Justice. By THEODORE SEDGWICK. Fifth Edition by ARTHUR G. SEDGWICK, Comprising the Fourth Edition by HENRY D. SEDGWICK. New York: Baker, Voorhis, & Company. 1869.
The third edition of Sedgwick on Damages, which was the last published in the author's lifetime, appeared in 1858. The next edition was not printed till last year, but the growing popularity of the work is attested by the fact that a fifth edition is already called for. (We are glad to chronicle the success of what is one of the most useful, as it is one of the most attractive, of law-books.) The fourth edition we noticed at the time of its appearance (2 Am. Law Rev. 725), and have nothing to add to what we then said. The present editor has brought the work down to the present time, collecting the recent decisions with care and accuracy. We wish he had noted his additions by some distinguishing mark. When a book has been through numerous editions, it is, of course, impossible to separate each set of notes; but the cases added by the last editor should be so indicated that one who has been accustomed to use the earlier edition may at once perceive what new law has been added. The short time that has elapsed since the prior edition makes this, however, less necessary than it usually is.
The Law of Railways : embracing Corporations, Eminent Domain, Contracts,
Common Carriers of Goods and Passengers, Telegraph Companies, Constitutional Law, Investments, &c., &c. By Isaac F. REDFIELD, LL.D., Chief Justice of Vermont. Fourth Edition, greatly enlarged. 2 vols. Little, Brown, & Company. 1869.
The Law of Carriers of Goods and Passengers, Private and Public, Inland and
Foreign, by Railway, Steamboat, and other Modes of Transportation; also, the Construction, Responsibility, and Duty of Telegraph Companies, the Responsibility and Duty of Innkeepers, and the Law of Bailments of every class, embracing Remedies. By Isaac F. REDFIELD, LL.D. Cambridge, Mass.: H. O. Houghton & Company. New York: Hurd & Houghton. 1869.
JUDGE REDFIELD says in the Preface to this edition of his book on Railways, speaking of the third edition, that he was compelled “to push the first half of the second volume through the press, in a few days, and to leave the remaining materials in very judicious hands, to be used as far as needful in completing the volume in proper size; and which, we are happy to say, was exceedingly well done.” Now we do not think the profession generally would agree that it was
well done, in fact there was a good deal of dissatisfaction at the method in which the learned writer's memorandum books and scrap drawers had been emptied, undigestedly, into his work. A dissatisfaction which would have expressed itself more strongly but for the respect felt for the abilities and character of the author. Judge Redfield seems to have become sensible of the defect, and has hastened to publish a fourth edition, which should in reality be called the “author's third edition.” Things are now put into their proper place, and cases are properly cited.
But what shall we say of his book on “Carriers and other Bailments ?” Part of it is good and part of it is new, but the part that is good is not new, and the part that is new is not good.
It contains five hundred and sixty pages. There is nowhere a suggestion that it is not a new and independent work of the author. He speaks in the Preface of “the large amount of labor bestowed upon it.” There is nowhere a hint that the pages of this book have ever before seen the light. Now what will our reader say when we assure him that the first four hundred and thirty pages, nearly four-fifths of the book are, with the exception of about a dozen pages, copied literatim et verbatim from the author's work on Railways. The chapters are placed in different order, but with this exception there is absolute verbal identity. Of course, Judge Redfield has a perfect right to publish his books, or any part of his books, under as many different titles as he pleases, but is it fair to the profession not to tell them, not in any way to indicate to them, that the offered book is nothing but an old one with a new title?
After this reprint of that part of his book on Railways, which relates to carriers and telegraphs, there follows a discussion on the Law of Iạnkeepers, occupying about fifty pages. This part of the work we desire to exclude from our general condemnation : it is both new and good and worthy of the author.
The remainder of the book is devoted to a consideration of all other bailments than those to carriers and innkeepers, and they are dismissed in eighty pages of large print. The author speaks with contempt of the use of the Civil and Continental Law, and says, “We shall content ourselves by giving the English and American Law upon the subject, and by bringing the decisions, as nearly as practicable, down to the present time.” It would be all very well for the author to confine himself to the English and American law, if he gave that, but he has not given it or begun to give it. Having looked for one recent case after another in vain, we had the curiosity to examine the cases cited in these pages, by no means a long task, and we found that of the numerous English cases decided during the last twenty years, Judge Redfield has referred to four, while of those decided during the last ten years he has given but one. Comment would be superfluous.
The American Law of Real Property. By FRANCIS HILLIARD. Fourth Edition.
Revised and improved. 2 vols. Albany: Weare C. Little & Company.
1869. The Law of Injunctions. By FRANCIS HILLIARD. Second Edition. Revised
and greatly enlarged. Philadelphia: Kay & Brother. 1869.
MR. HULLIARD is a well known and voluminous law writer. Besides the above works he has published books on Torts, on Remedies for Torts, on Mortgages, on Vendors and Purchasers, on New Trials, on Bankruptcy, and, we dare say, on other topics.
We have before had occasion to notice several of these works, and while we have acknowledged their useful character, we have been able to speak of their execution with only moderate praise.
We feel that it is due to the learned author to point out more specifically what we regard as his short-comings. Mr. Hilliard, we ought to say, makes no pretension, as he has no claim, to originality or to historical research. The book first above named professes to give the American Law of Real Property as it at present is. To see how this is done we take a topic at random, and open at the subject of Lights, to which are devoted nine sections, covering seven pages in the 67th chapter. Now here is a subject, the common law doctrines concerning which have been largely modified in the United States, both by judicial decision and by statute, and therefore one which in a treatise on the American Law ought to receive special consideration. Mr. Hilliard cites ouly nineteen American cases, and of these four are from Louisiana, which are of course of no value as precedents in States where the common law prevails, and six of the remainder are from the single State of Massachusetts. We take down the nearest volume on the Law of Real Property on our shelves, and we find eighteen American cases on this subject which Mr. Hilliard has not given, and among those omitted by him is Parker v. Foote, 19 Wend. 309, the leading American case on the question of lights. Mr. Hilliard might be supposed well acquainted with the law of his own State, and we have said that a third of his cases are taken from Massachusetts, yet of the five latest cases in the Massachusetts Reports on the subject, he has given but one, Rogers v. Sawin, 10 Gray, 376, which he also cites from “ Law Rep., June, 1858, p. 105, Mass. S. J. C." He has no reference to Fifty Associates v. Tudor, 6 Gray, 255, or to Collier v. Pierce, 7 Gray, 18; or to Carrig v. Dee, 14 Gray, 583; or to Paine v. Boston, 4 All. 168: some of which, at least, are cases of importance.
Mr. Hilliard states positively that “where a house has lights which have existed twenty years, or ancient lights; the erection of another which obstructs them is ground for an action on the case or an injunction in chancery." The only limitations of this broad proposition are given in a statement in the text, “that Chancellor Kent remarks that the English doctrine as to ancient rights can hardly be regarded as applicable to narrow lots in the new and growing cities of this country;" and in a note which gives a Maine decision against the right of action, a statement that “it is doubted” whether the right exists in New York, citing Banks v. American Tract Society, 4 Sandf. Ch. 438, under the extraordinary style of Bank, &c. v. Americans ; and a reference to a Connecticut and to a Massachusetts statute, the latter incorrect.
Who would suppose from this that the common-law doctrine of easements of light and air by prescription had been recognized in but two or three of the States, and had been exploded distinctly in some eight or nine ? Further, Mr. Hilliard nowhere states the reason on which the American courts have condemned the doctrine ; viz., that the enjoyment of the easement in no way injures or affects the servient estate, and is therefore not adverse.
The English cases fare no better. We have, to be sure, a case, Wale v. Westminster, 8 C. B. N. S. 276, which decides the point, invaluable to an American lawyer, that section 68 of the Lands Clauses Consolidation Act, 1845, is not incorporated into a certain private act of Parliament for the erection of a hotel, and there are several other almost equally useful discussions on the interpretation of English statutes; but the presence of these hardly make up for the grave omissions of the learned author. The question of light has lately been much discussed in the Court of Chancery, and the law examined with great thoroughness; in the Law Reports for 1867, 1868, and 1869, there are no less than ten cases in the equity courts touching this matter. Mr. Hilliard has only two, Yates v. Jack, Law Rep. 1 Ch. 295 (cited by Mr. Hilliard, Law Rep. (Eng.), Equ. 1866, Apr. & May, p. 295), and Clarke v. Clark, Law Rep. 1 Ch. 16 (cited by Mr. Hilliard Law Rep. (Eng.) Equ. Jan. 1866, p. 15). We will only refer to Dent v. Auction Mart Co., Law Rep. 2 Eq. 238, Martin v. Headon, Law Rep. 2 Eq. 425, Lanfranchi y. Mackenzie, Law Rep. 4 Eq. 421: all cases of value, in which the decisions of Yates v. Jack and Clarke v. Clark are discussed, but of which no trace appears in the volume before us.
We pass to the next book, the Treatise on Injunctions. The Preface says, * The present work is designed to be thoroughly American” (the italics are the author's), “ while the English cases have been cited sufficiently to give a correct view of the English law, as the original foundation, and an existing constituent part of our own jurisprudence; the process of selection has been more largely applied to them than to the decisions of the American courts, which last are designed to be fully and exhaustively stated." We confess we do not know what is meant by “ thoroughly American ; " the English practice is not more unlike that of the United States than that of one State is from that of another, and if there is one topic in the law which is incapable of local treatment, it is that of injunctions. The author goes on to say that “it is perhaps hardly necessary to remark, that, in citing the American cases, no distinction is made between the Northern and Southern States," and then follows a page of which the best that can be said is, that it is utterly irrelevant. As before, we will take a topic for illustration, say Copyrights. This subject occupies nine pages in Mr. Hilliard's book. The “ full and exhaustive statement” of the American Law on the subject of copyright comprises a notice of seven cases, while there are more than thirty American cases on the subject passed over in silence, as any one may see on looking at as common a book as Brightly's Digest. To any one in the least conversant with the American law of copyright, it is enough to say that Mr. Hilliard betrays not the slightest token of ever having heard of Wheaton v. Peters, or of Gray v. Russell, or of Slory v. Holcombe, or of Folsom v. Marsh. In the English Treatise on Injunctions, by Mr. Kerr, though he only professes to give American cases by way of illustration, there are actually a greater number of important American cases given than in this book of Mr. Hilliard's. After this, it is of
do while the w, as the the process .