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its eleventh, the next its second thousand. They are not intended for the legal practitioner, but for the commercial and general public; and as compendious and cheap statements of certain rights and liabilities, they have considerable merit. Although very few professional persons will procure or use Mr. Smith's little works, they may certainly recommend them to any lay friends who are curious to learn something about the subjects he has treated of.
AMERICAN LAW LITERATURE.
SEVERAL important text books emanating from American jurists are now before us. We can do little else on this occasion than briefly describe their contents and give our readers some notion thereof, and of their value to English lawyers. In almost every instance the subjects are ably treated, and will be found of value to the practitioner in this country even.
But to those who take a liberal view of their profession than that of its bread-producing power, and who desire to keep before their eyes the scientific aspects and various phases of jurisprudence-to observe the different application of the principles which the systems of both countries have in commonto notice in what instances conflicts of opinion in the courts of America or England arise, and what arguments are employed and may be raised in support of our brethren on the other side of the Atlantic, and in what measure they may be adopted here under analogous circumstances ; in short, to all who are concerned to be well informed on matters legislative, judicial, or jurisprudential, the learned productions we are now alluding to must prove both interesting and useful. To some of the volumes which we now proceed to notice, we shall hereafter refer at length, for the purpose of considering them more elaborately, especially in their bearings and influences on English law. A Practical Treatise upon the Law of Railways. By Isaac F. Red
field, LL.D., Chief Justice of Vermont. Second edition, Boston : Little, Brown, & Co., 1858.
CHIEF JUSTICE REDFIELD published in 1857 his work on railways, and the following year a new edition was required. His aim was to supply a volume, not over cumbersome, upon the whole law relating to railroads both English and American. With this view the author desires to embrace under the scope of his book every case which has been decided in both countries, but in such a form as not to convert his treatise into a Digest. This indeed appears the proper mode of treating “cases.” Mere statements of principles, without the illustration from authentic instances which have been reported, make small impression on the reader, and are of comparatively trifling practical utility ; whilst the huddling together of marginal notes, after the manner of a digest, is useful only on certain occasions, and then to those alone who are conversant with the subject.
Mr. Redfield has had to consider upwards of three thousand reported cases, which alone will indicate the labour which has fallen to his lot, and that which he has saved practitioners who may have to advise upon and determine, often in haste, points of law in connection with railways.
We do not purpose now to analyse Chief-Justice Redfield's work; but there is one point which we cannot forbear noticing in connection with American railways; and that is, how it happens there are any railways at all in that country to write about—how any one can be found to spend money on their construction ? The author observes (p. 5), that it is worthy of remark that " in the United States a large proportion of the capital invested in railways has proved hitherto wholly unproductive, and much of it has already proved a hopeless loss, and a very small proportion of the whole can be said to have been at all remunerative.”. Great Britain and Ireland can unfortunately produce some instances, we believe, where a railway is unproductive; and occasionally ordinary shareholders have received no dividend, and many instances of a 10 per cent. dividend dwindling to a 4 per cent. might be recorded—but as a rule, English railways pay, and are believed to be solvent. After comparing the railway facts of the two countries, we are strongly inclined to agree with the learned judge, that “it is difficult to account for the difference in results without suspecting there is something wrong somewhere.” The author is led to make this remark in considering a case in America, in which was discussed the right of legislative control over private corporations, whose functions are essentially public, like those of banks an:l railways. He is himself in favour of control within reasonable limits, and under proper restrictions. That such is imperatively demanded in America, seems to us, we confess, obvious : that it might be with advantage extended in England, is also, we believe, the better opinion.
In 1857, the United Kingdom possessed upwards of 8000 miles of iron road. In 1851, the United States had created double this mileage and as much again was in progress. In the United Kingdom these works had cost upwards of 300 million sterling; in the Uuited States they had spent about half this sum. So they had half our capital, and more than double our mileage, and yet the companies are mostly insolvent. Now the English debenture and preference stock is said to pry an average of 5 per cent., and ordinary stock 3 per cent. Most of the European railways are also highly remunerative, returning from 7 to 20 per cent. Supervision, without undue interference, is assuredly requisite for the protection of shareholders. No one knows this better than the English lawyer-whether solicitor or counsel—who has had to watch the manoeuvres of directors and their agents in railway proceedings.
A Treatise on the Construction of the Statute of Frauds as in Force
in England and the United States. By Causten Browne, Esq., Counsellor-at-Law. Boston: Little, Brown, and Co., 1857.
WHETHER it be true or no that every line of this statute is “worth a subsidy,” as Lord Nottingham used to say, is open to discussion. The late John William Smith in his “ Law of Contract” has observed, that there is no doubt as to every line having cost a subsidy in litigation. The question has recently been raised anew by able thinkers, whether the enactment has advanced justice, or whether its successful operation in preventing "many fraudulent practices, which are commonly endeavoured to be upheld by perjury and subornation of perjury," has not been counterbalanced in certain directions by its effect in frustrating fair claims and maintaining dishonest defences.
The jurisprudence of America, however, has retained the enactment; and it is of equal importance there as it has been and is with us. Mr. Browne, the American writer on jurisprudence, has formed an opinion in favour of the beneficial effect of the statute. “ In estimating the value of this enactment, the important question is, not whether the statute has in its practical working let in as much perjury as it has excluded, for no strictness of legislation can bar out from a court of justice the man who deliberately purposes to commit perjury; but it is whether, in the average of large experience since the statute was enacted, the requisition of written testimony in certain cases has not materially served to secure the property of men against illegal and groundless claims. That it has done so will scarcely be disputed, and to the profound practical wisdom with which it was conceived to this end, the most enlightened judges and jurists bave at all times borne emphatic testimony.
“Nevertheless it cannot be said to have been judicially administered with a firm hand and in a consistent spirit. Within a few years after its enactment, and before the generation of its framers had passed away, we find the courts admitting exceptions and distinctions as to its application, and forcing upon it constructions tending to restrict its beneficial operation. In later days there has been evinced, on the whole, a disposition to return to a closer interpretation of its provisions ; but even now there are doctrines too firmly settled by. precedent to be overthrown, which, from their very inconsistency with the spirit of the statute, lead continually to great embarrassment in its administration.”
Embarrassment, however, was in the first instance caused by the opportunity afforded for divers interpretation of the meaning of the statute, through laxity in the language employed therein; for in truth, the composition of the Statute of Frauds, however excellent certain of its provisions may be, proves that modern draftsmen have not the exclusive right to be considered imperfect in their art. In the 29th year of the reign of Charles II. even, we have an instance of an ill-drawn bill, turned into a suit-provoking statute.
The difficulty which has attended the exposition of the statute, results mainly from the imperfect language employed by them who framed it.
fessional reader," says the author, “who carefully examines it from beginning to end, will fiud such obscurity of arrangement, and such inexact and inconsistent phraseology, as to conclude that safe and rational rules for its coustruction can hardly be rested upon its literal expressions; but that it must be read, as far as may be, by the light of that broad and wise policy in which it was manifestly conceived." With respect to the authorship of the statute, Lord Ellenborough in Wain v. Warlters, insisted to a great extent on his construction of the word “ agreement,” because he believed that Lord Hale drew the bill, who was
as competent to express as he was to conceive the provisions best calculated for carrying into effect the purposes” of the law. This was not the view taken by Lord Mansfield, who remarked that the act was not passed till after Lord Hale's “ death, and was brought in in the common way, and not upon reference to the judges.” Again, we find Lord Nottingham remarking, in his account of his judgment in Ash v. Abdy, 3 Swanst. 1664 (Auno 1678)," I said I had reason to know the meaning of the law, for it had its first rise from me, who brought the bill into the Lords' House, though it afterwards received some additions and improvements from the judges and civilians.” In the note by Mr. Swanston he says,
" that the fact above-mentioned sets the origin of the statute beyond question, though there may be some foundation for the tradition that Sir M. Hale and Sir L. Jenkins assisted in its preparation." Still, whoever revised the draft, it was left eventually in an informal state. The general design of the statute is clear, and some parts of it are happily worded, but others as carelessly; for example, the same term is found used therein to express different ideas, and the reports supply abundant evidence to shew that it was not left perfected by any great hand, though it may have been touched by several masters. However, both we and our legal brethren in America have the duty imposed upon us to understand the meaning and interpretation of the Statute of Frauds, and Mr. C. Browne's book will be found useful for the purpose of attaining this object. Commentaries on the Law of Marriage and Divorce, and Evidence on
Matrimonial Suits. By Joel Prentiss Bishop. Third Edition. Boston : Little, Brown, & Co., 1859.
The Statute 20 and 21 Vict. c. 85, has not removed the necessity of the ancient law of marriage and divorce being thoroughly mastered by the English practitioner (vide § 22). But it has rendered it desirable that the principles on which it is founded should be both more widely and thoroughly understood. There is now and will be greater freedom and scope in the application of the law than formerly. Mr. Bishop says truly, that when practitioners resort to the reports, they find there the light so scattered, so buried beneath forms of practice unknown to them, gathered at so much labour as often to render the search in this direction scarcely compensatory.”
Like Mr. Bishop's commentaries on criminal law, the volume which we are now noticing is not a mere digest of cases or statement of decided points—it professes to be and is an original commentary. It aspires to be a text-book in which authorities are considered, accepted, rejected, or expanded, and where principles and rules are laid down, and the intention and application illustrated and explained. The writer does not shrink from accepting the responsibility which independent views naturally throw upon an author. The work deserves, and we hope will receive, at our hands hereafter, ample notice. The author believes that bis “ English and even Scotch friends may find,” in his treatise, "not an altogether valueless reflection of the light which has shone from them over the waters.” It is because what we have already observed in the volume in question induces us to think Mr. Bishop is not mistaken in this belief, that we have introduced thus brieflyhis labour to our readers' consideration. A Treatise on the Law of Attachment in the United States. By C. D.
Drake, of St. Louis, Missouri. Second Edition, with the Treatise on Foreign Attachment in the Lord Mayor's Court of London. By John Locke, Esq., Q.C., M.P. Boston: Little, Brown, & Co., 1858. THE following remarks occur in this preface to Mr. Drake's work : “ The materials here wrought together are almost wholly American. Great Britain, the fountain of, and exercising continually a marked influence over, our jurisprudence generally, contributes in this department comparatively nothing. In that country the bankrupt law, and the process against the body, leave little room or occasion for a general system of attachment; while the limited proceeding under the costom of London gives rise to few cases which find their way into the courts of Westminster Hall. Here, however, where no general bankrupt law exists, and imprisonment for debt is to a great extent abolished, it is widely different.”
If imprisonment for debt be abolished, for which step many are now agitating—the practice of attachment must, we presume, become as extensive here as in America.
Mr. Drake's book would have been more valuable to the English lawyer if the decisions or the sectious of the Common Law Procedure Act, 1854, giving attachinent of bills of the Garnishee (sects. 61-67), had been referred to.
Mr. Locke's excellent little treatise on Foreign Attachment in the Lord Mayor's Court in London, has been appropriated by Mr. Drake in his appendix, and forms a useful addition to his volume.
State of New York. First Report of the Commissioners of the Code.
Albany : Weed, Parsons, & Co., 1858.
The Commissioners, whose first report is now before us, were appointed by an act passed in 1857, by the Legislature of the State of New York, to reduce into a systematic code such of the laws of that