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WITNESS. 1. Semble, that a witness has no right to be represented by co some collateral proceeding in which he is party; for instance, i against him for contempt. — In re M. W. Fredenburg (N.Y. S.D
2. A person summoned as witness, at the request of the assign being examined, on the ground that there was no authority to exa until the bankrupt had been examined, and unless there was a q troversy to be settled by testimony. The register overruled the the witness prayed him to certify the question to the Judge under out standing upon the objection submitted himself to examination certified the question. Held, (1) that the register might have ref the question, as the witness was not a party, and it is only a par tled to call for the Judge's opinion under $ 6; (2) that the objec lous ; (3) that by submitting to examination the witness waived the In re M. W. Fredenburg (N.Y. S. D.), 1 B. R. 34. See ARREST, 13; EXAMINATION, 2, 7, 28-30; FEES, IV. V. 2.
WRIT OF ERROR. - See CIRCUIT COURT, 3.
A Treatise on the Law of Sale of Personal Property; with References to the
American Decisions and to the French Code and Civil Law. By J. P. BENJAMIN, Esq., of Lincoln's Inn, Barrister-at-Law. London: Henry Sweet. 1868.
On most of the branches of commercial law there have long been numerous and able works. Mr. Benjamin gives us for the first time a book on Sales, worthy to take its place by the side of Collyer and Lindley on Partnership, Byles on Bills, and the treatises of Mr. Justice Story. “This," the author says in his preface, “is an attempt to develop the principles applicable to all branches of the subject, while following Blackburn on Sale as a model for guidance in the treatment of such topics as are embraced in that work." Any one now dealing with the subject certainly must follow in the steps of that very acute writer as far as he has gone. Had he undertaken more than a discussion of some questions peculiar to the law of Sale, the work could not have been done a second time so well. What Mr. Blackburn did not do, however, Mr. Benjamin has supplied, in such a way as to leave little to be desired.
The arrangement adopted is simple and good. Book I., somewhat inexactly entitled “Formation of the Contract,” contains two parts. The first treats of the elements essential to the contract of sale at common law, and has successive chapters on the parties, mutual assent, the thing sold, and the price. The second part is on the effect of the Statute of Frauds. Book II. is on the effect of the contract in passing property. Book III. treats of avoidance of the contract for mistake, failure of consideration, fraud, or illegality. Book IV., under the head of performance of the contract, contains chapters on conditions, the vendor's duties, including warranty and delivery, and the buyer's duties, acceptance, and payment and tender. The last book has two parts on breach of the contract, one treating of the rights and remedies of the vendor both of action against the buyer, and of resale, lien, and stoppage in transitu against the goods: the other on the rights and remedies of the buyer.
The second part of the first book, the second book, and part of the fifth book, especially that relating to stoppage in transitu, seem to be modelled on Mr. Blackburn's treatise, but for the other portions Mr. Benjamin was left to his independent research. We have spoken of Mr. Blackburn's treatment of the subject as partial only, and of Mr. Benjamin's as complete. Yet it is worthy of notice that the earlier writer has considered almost all the law peculiar to the contract of sale. Were the law philosophically arranged, there would be little to be added to what he has said. As it is, a book of reference on any subdivision of the law, in order to be satisfactory, must set forth at length, not only the principles constituting the specific difference of the subject-matter, but also those common to it and to many other classes of the same genus. Thus, it may
be doubted, whether, in a comprehensive summary of our law, fraud would not more properly be treated under the general title contract, or possibly under some still wider head, rather than repeated in every text-book dealing with every one of the different sorts of contract known to modern commerce. At present, we must put up with the latter alternative.
Take again the chapter on Conditions, in which Mr. Benjamin has presented many cases at considerable length. The rules laid down are not peculiar to the law of sales, and many of the examples introduced seem to turn simply on general principles of construction. Still, this is not the author's fault, but is the necessary result of the state of the law.
Singularly enough, the least valuable portions of the work before us seem to be those professing to give the result of American authorities. These appear to be meagre, and the discussions of cases not quite satisfactory. We notice that in the English Law Magazine and Law Review for November, 1868, the disapproval of the case of Cook v. Oxley, 3 T. R. 653, expressed by some American text writers, cited by Mr. Benjamin, p. 45, et seq., is maintained to be sound, contrary to his opinion. See also Met. on Contr. 19.
On the vexed question of what is a contract of sale within the statute, and what only a contract for work and labor requiring no memorandum, a distinction taken by Chief Justice Shaw, between a contract for the future sale of articles which a party is habitually making, although not made or finished at the time, and cases where the article is made pursuant to the agreement, is declared unsatisfactory. It certainly is open to question. Yet it is difficult to deny that in the latter case the contract has a double aspect, as an agreement that the manufacturer shall perform certain labor, and that the employer shall purchase the result of his labor when complete. For it is to be observed that in many, if not all, of such agreements, the labor of the particular person employed is contemplated as an essential term. It does not seem to be going very far to refuse to discharge a party from liability for labor undertaken and performed at his request, because he chooses to avail himself of his right to refuse to purchase the result of such labor.
We observe that the author repeats Mr. Blackburn's second rule, that, when any thing remains to be done to goods for the purpose of ascertaining the price, the performance of these things shall be a condition precedent to the transfer of the property, without repeating his objections to it. Those objections seem to us the least sound of the speculations of that able writer. In the absence of evidence of a contrary intent, a vendor can hardly be supposed to mean to part with his property in goods under circumstances in which, if they were destroyed, he would have no indemnity. While they were his, he could insure them; afterwards he has only a right of action for the price. The purchaser is only liable on his contract, and it has, in the case supposed, become impossible to ascertain his liability in accordance with its terms.
We should have liked a fuller discussion of what facts are admissible as evidence of a preconceived design on the part of a purchaser not to pay for goods, as well as a clear statement of the grounds on which it is held that this is fraud entitling the vendor to avoid the sale, a principle which we believe has been questioned in at least one American case.
Titles to Real Estate in the State of New York. A Digested Compendium of
Law applicable to the Examination of Titles to Real Estate in the State of New York. For the use of Conveyancers and Students at Law. By J. W. GERARD, Jr. New York: Baker, Voorhis, & Co. 1869.
A CONVEYANCER's manual, such as this, is much needed in every State in the Union; a book, which without containing all the minutiæ of real property law, will yet, if carefully followed, prove a safe guide in the examination of titles ; which, if it will not solve all difficulties, will at any rate indicate what the difficulties are.
Mr. Gerard treats, first of the different estates in land, then of conveyances, mortgages, assignments, judgments, and other liens. To judge of the accuracy of the book would require a knowledge of the statutes of New York, which we do not pretend to possess, but the arrangement is clear and good. A serious defect is the citation of cases only by the volume and page where they are found, without giving their names. The addition of the names, and of a corresponding table of cases, would be a great addition to a new edition. The more experienced lawyers become, the more they habituate themselves in searching for a principle through the books to follow the track of a leading case, and it is very irritating to come on a book which may or may not consider the case in question, one cannot tell which. Though the law, when compared with any other department of human knowledge, is admirably indexed, yet the nature of things prevents its being compressed into any fixed classification, and the best index will never supply the place of a table of cases.
We should be glad, too, if Mr. Gerard would add a few practical hints on the best methods and forms for drawing abstracts of title, &c.
Supplement to the Maryland Code, containing the Acts of the General Assembly
passed at the Session of 1868; arranged in Articles and Sections to correspond with the Code. By LEWIS MAYER, of the Baltimore Bar, Baltimore. John Murphy & Co. 1868.
The Legislature of Maryland during the year 1868 seems to have been unusually fecund. The Public General Laws, and Public Local Laws, passed by them in the last year, fill this good-sized volume. Mr. Mayer has arranged them under those heads of the classification adopted in the Maryland Code under which they properly belong; an excellent plan which greatly facilitates reference. The original arrangement, however, of the Code, seems to have been alphabetical, which strikes us as unscientific. Such arrangement was well suited to the old abridgments, compiled in the days when the law was rudis indigestaque moles, - a mass of scattered points, — but is hardly suited to a time when the knowledge of the proper classification of the law, though still very imperfect, has so far advanced beyond what it was in the days of Brooke and Fitzherbert.
The most important acts passed in the year 1868, seem to be one embracing regulations for the formation and government of corporations of every kind, and another inaugurating a system of Free Public Schools.
We condole with our learned brethren in Maryland on such a rapid and burdensome multiplication of laws; but, if that cannot be avoided, it is certainly fortunate that the new statutes are presented in so convenient a shape as in this edition.
Common Bench Reports. New Series. Cases Argued and Determined in the
Court of Common Pleas, and in the Exchequer Chamber, in Easter and Trinity Terms, 1863. By John Scott, Esq. Vol. XIV. With references to Decisions in the American Courts. JAMES Parsons, Esq., Editor. Philadelphia: T. & J. W. Johnson & Co. 1869.
The New Series of the Common Bench Reports, by Mr. Scott, consists of twenty volumes. Of these, the first thirteen, and also, we believe, the eighteenth and nineteenth, have already been republished in America. This volume contains cases decided in 1863.
We note a few of the more interesting:
The defendant received an order from a correspondent at Bremen to purchase for him bar iron of a description known there as S. & H. crown iron. Upon inquiry, he found that the firm of Snowden & Hopkins, whose mark that was, had ceased to exist, and had been succeeded by a firm of Hopkins & Co. (the plaintiff), and he accordingly, through a broker, bought of the plaintiff 67 tons of iron, which was described in the bought and sold notes as “ S. & H. (crown) common bars." The iron, when tendered, was found to bear the mark of the new firm, “ H. & Co.," with a crown, and was rejected by the defendant. In an action for refusing to accept the iron, the jury found that the mark “S. & H.” was not a material part of the bargain, and that the article tendered was substantially what the defendant bargained for. Held, that, construing the contract by the surrounding circumstances, the mark S. & H. might, if necessary, be rejected as falsa demonstratio, and that the contract was complied with by the tender of iron marked “H. & Co." Hopkins v. Hitchcock, p. 65.
An attorney retained to defend an action, is not guilty of actionable negligence if he enters into a compromise without the consent of his client, provided he acts bona fide and with reasonable care and skill, and the compromise is for the benefit of the client, and is not made in defiance of his express prohibition. Choun v. Parrot, p. 74.
In Green v. Baverstock, p. 204, the court, following the case of Thornett v. Haines, 15 M. & W. 367, held, that, whatever might be the rule in equity, at law, the secret employment of a puffer at an auction sale, where the highest bidder is to be the purchaser, is evidence of fraud.
A. fraudulently obtained a cheque payable to order from B., and handed it to C., in satisfaction of a bona fide debt, but without indorsing it. Held, that C., after receiving notice of the fraud, could not, by obtaining A.'s indorsement, acquire a legal title to sue upon the instrument. Whistler v. Forster, p. 248.
The points decided in the case of Ionides v. Universal Marine Ins. Co., p. 259, were as follows: 6,500 bags of coffee on board the ship L. were insured on a voyage from Rio to New York, by a policy containing the clause, “Warranted free from capture, seizure, and detention, and all the consequences thereof or of any attempt thereat, and free from all consequences of hostilities
, riots, or commotions.” At the time of the ship's departure from Rio, the civil