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The Principles and Practice of Courts of Justice in England and the United
States. By Conway Robinson. Volume VII. Further on Personal Actions as to the Grounds and Form of Defence, and the Answer to that Defence. Richmond: Woodhouse & Parham; Randolph & English. Baltimore: Cushings & Bailey. Philadelphia: T. & J. W. Johnson & Co. 1874.
It is more than twenty years since the first volume of this work was published, of which the late Mr. Justice Willes, in a letter to the author, said: “I do not know which most to admire and wonder at, the extraordinary industry with which you have collected materials from sources so numerous and so widely scattered, even to the citation of authorities still damp from the English press; the luminous exhibition in so condensed a form of the leading principles of decisions, side by side with the most striking instances of their application, giving to the subject, generally treated so as to be repulsive, a scientific interest; or the singularly felicitous arrangement, giving the clew at once to every part of the subject and every point within its scope.” In the prosecution of the work so well begun Mr. Robinson has since labored with unwearying patience and industry, till now, at the venerable age of threescore and ten, he gives to his profession a seventh volume distinguished by the same excellences which excited the admiration of the English judge. The author certainly seems to have acted upon the maxim of Lord Derby, which he quotes, " Whether I am happy or unhappy is not my chief affair; what most and first concerns me is, to find my work in life, to recognize it, and to do it;'' and this, his chosen life-work, he has done faithfully and well. We hope he may live to see it completed, and that the profession may not lose the benefit of the materials for future volumes which he has collected, and which no one but himself can use so well.
The present volume treats of the various grounds of defence, res adjudicata, estoppel, submission and award, release, accord and satisfaction, and others; then of replications, rejoinders, surrejoinders, and the pleadings thereon to issue, the discussion of which the author has enriched with a mass of citations and quotations really astonishing, though the latter part which treats of the pleadings now almost everywhere obsolete is rather, in the language of Chancellor Kent, “ a monument to the memory of departed learning ” than of practical value to the modern lawyer. The rules of pleading, however embarrassed with technicalities they became, have a scientific foundation; and no lawyer can consider himself educated who does not understand them thoroughly. We should, therefore, advise our professional brethren not to neglect any portion of Mr. Robinson's work, but to read it thoroughly, if only for the sake of appreciating the very amusing dialogue between Crogate, the unhappy hero of Crogate's Case, 8 Co. 66, and Baron Surrebutter, an imaginary authority on special pleading, of which the venue is laid on the other side of the Styx.
This was written by the late Mr. Justice Hayes, of the Court of Queen's Bench, before the passage of the Common Law Procedure Act, and, being very rare, is printed by Mr. Robinson in his Appendix. The astonishment of the special pleader at the ignorance of the rules displayed by Rhadamanthus, whose proceedings, he says, were more like the summary practice of one of the new-fangled county courts than the regular procedure of a respectable superior or even inferior tribunal,” and his horror at the punishments inflicted on special pleaders by infernal justice, are very amusing. So are the punishments themselves. The Baron says: " I saw two illustrious men engaged in a complicated course of special pleading with each other, which resulted in everlasting new assignments. Another pair of pleaders, similarly engaged, were subjected to the mortification of having eternal judgments of repleader awarded against one or the other of them. But the most lamentable case appeared to be that of the ghost of a special pleader of the old school, who was sentenced to draw an undemurrable plea to an action brought after the new rules upon a bill of exchange, with counts for the consideration, interest, and the money counts, in which the defence was made up of part failure of consideration, part payment, a set-off as to part, and payment into court of the residue. This unhappy ghost had all the new rules and the forms of the judges, and the decisions of the courts upon them, given to hirn to enable him to accomplish his task ; but the more he read, the more he was puzzled. Sir Edmund “ (Sir Edmund Saunders, whose ghost accompanied Surrebutter)' and I witnessed his abortive attempts with great interest; and he pointed out to us the dictum of a great pleading judge, to the effect that there must be some way of pleading in such a case, though the court was not bound to say what it was.' (16 M. & W. 762.) Sir Edmund gave me a knowing wink, and whispered in my ear that it was all very well to say so, but that he took it to be clear that the thing could not really be done;" an opinion of Sir Edmund's which we are not disposed to challenge. One's sympathy with these unhappy shades is quickened by his recollection of the nightmares which precede or succeed important trials.
Mr. Robinson's preface is rather political than legal, and we gather from it that he has little sympathy with the legislation of Congress since the war. But we are not inclined to quarrel with his strictures upon the character of the judiciary in the Southern States, though a passage like the following, which we find in the body of the work in a discussion of the rule that, where a special jurisdiction is given by statute, the record must show that the statute has been followed, strikes us as a little singular: “ In the United States there is great reason for applying this rule to a condemnation by an inferior court under the act of Congress of August 6, 1871, or that of July 17, 1862, whether the so-called judge thereof be an Underwood, a Delahay, or Durell, or one possessing better qualifications for judicial office than either of the three.” No better evidence can be found of the provocation which our Southern fellow-citizens have endured from some judges, than such a passage in such a place.
It is always a pleasure to read a book whose author is sincerely desirous rather to do good work than to be well paid; and such are unfortunately too rare among the multitudes of law writers and law reporters whose work we
are called upon to criticise. We have no doubt that Mr. Robinson will reap the reward of his labor in the appreciation of his profession, already too familiar with the excellence of his work to make any further discussion of it here at all necessary.
A Treatise on the Law of Guarantees, and of Principal and Surety. By HENRY
ANSELM DE COLYAR, of the Middle Temple, Esquire, Barrister at Law. With Notes to American Cases, and an Appendix containing the English and American Statutes of Frauds and Perjuries. By JAMES APPLETON MORGAN, of the New York Bar. New York: Baker, Voorhis, & Co., Publishers. 1875.
At the time of the publication of Mr. De Colyar's treatise in England, in 1874, the works of Mr. Fell and Mr. Theobald upon the same subject had become obsolete ; the profession, no doubt, needed an exhaustive discussion of a subject which the multiplicity of modern cases upon this branch of law demonstrated to be of great and increasing importance. Mr. De Colyar supplied this want, so far as diligence in the selection and arrangement of the English decisions could do it. We do not think, however, that the author's style is either attractive or lucid. His book is made upon the English system of digesting, giving in the text, as did Messrs. Byles and Cruise, the names of cases and the rulings or decisions made therein, by way of offering to the reader a view of the growth and development of the law on each particular branch of his subject. In many cases, indeed, he makes mention of the names of other parties (not of record), in whose behalf promises were made, or obligations entered into. These names, of little interest except to the curious collector of lists of irresponsible persons, however acceptable to the enterprising managers of commercial agencies, do not afford aid to the practitioner or the student, and we think serve frequently to confuse the summary of the cases in which they are given.
Mr. De Colyar does not attempt any arrangement of the cases based upon "the circumstance of the decisions being at common law or in equity," because these distinctions are likely to be lost in England in practice under the new “Supreme Court of Judicature Act, 1873.”
We agree that a treatise for students might well leave out of view a discussion of the remedy which may be appropriate to each class of cases; but where the distinction between law and equity remedies is kept up with as much strictness as it is in many of the states, as for example in Massachusetts, the practising lawyer would like to know under which king' and in which court he must employ his efforts for redress. For these reasons, which grow out of the character of the original work, we think that Mr. Morgan might have employed his labor to quite as much advantage in the production of an original treatise upon the subject, so far as any treatise on law is or can be original, and that there is still a field for an American text-book upon the same subject.
As to Mr. Morgan's work, we notice a considerable diligence in the collection of cases; and, so far as we have examined the subjects with which our practice has made us familiar, his notes cannot fail to be of value to any one who is investigating the branches upon which he treats. It is not true, how
ever, that his collections are exhaustive, so that the student or lawyer in each state can rely upon the citations being full, or even including all the leading decisions. For example, the leading case of Oxford Bank v. Haynes, 8 Pick. 423, which established the duties of the holder of a note towards a defendant, who had written thereon, “ I guaranty the payment of the within note,” is not mentioned; and the case of Read v. Cutts, 7 Greenl. 186, is cited, but not to the point to which it is properly applicable. More than fifty pages of the five hundred and thirty-four which comprise the whole book, are taken up by an appendix containing the English and American Statutes of Frauds. Of course these are useless for the most part. No lawyer will use such an appendix in examining the statute of his own state, but will turn at once to his own copy of the acts in force since the last session of the legislature. In illustration of this, we may mention that even Browne on the Statute of Frauds, published at Boston, which attempts the same plan, does not contain a full transcript of the Massachusetts Statuie of Frauds, so called. And if one has occasion to advise upon the statute of a sister state, he must consult her digests, statutes, and decisions. The student, of course, cannot with safety read any other than the statute of his own state and the 29 Car. II. c. 3. If he does, he will be as likely on examination to give the lex scripta of Illinois or Alabama, of New York or Pennsylvania, as of his own state.
This appendix is useful, however, for one thing : it shows that Mr. Morgan has fallen into a curious error with regard to his references to the Statutes of Frauds, &c., in the various states, by following the citations of another author. These references in foot-notes, which seem to have been copied from Browne on the Statute of Frauds, are almost all wrong; and this may be seen by examining the appendix, in which most of the statutes are of a much later date than the ones referred to by the text. The execution of the work is fair, and the type clear.
Reports of Cases argued and determined in the District Courts of the United States
within the Second Circuit. By Robert D. BENEDICT. Vol. VI. New York: Baker, Voorhis, & Co. 1875.
This volume contains cases from March, 1872, to July, 1873. We notice the following:
The Providence and New York Steamship Co., p. 124, was a case under the Admiralty Rules, 55-58, prescribing the manner of proceeding under the United States Statute of 1851, limiting the liability of ship-owners. The power of the Supreme Court to make these rules is maintained; and it is held that the District Court has the power to restrain the prosecution of a suit against the owners of a vessel in a state court. The proceeding under the rules abovementioned is said by Blatchford, J., to be " substantially a suit in rem against the vessel and its pending freight.” Benedict, J., however, in the City of Norwich, pp. 330, 334, thinks the proceeding partakes of the character of an action in personam, and says that it is analogous to a proceeding in bankruptcy.
The Epsilon, p. 378, is another case under the statute of 1851, which is held to apply to injuries to persons as well as to property.
Dry Ox Hides, p. 199, is an interesting case on the question when it is the duty of the master of a vessel to weigh cargo at the port of delivery.
In re Derby, p. 232, decides, that infants, in respect to their general contracts, are not embraced within the provisions of the Bankruptcy Act, as subjects of either voluntary or involuntary bankruptcy.
The City of Brussels, p. 370, decides that where a child who is a passenger dies in consequence of negligence on the part of the officers of a vessel, the cause of action survives to his administrator, and may be enforced by a process in rem.
In The Onore, p. 564, it is held, that admiralty has jurisdiction of a contract, made between the master of a ship and a cooper, to put the cargo of the ship in landing order; the services being rendered partly on the ship and partly on the wharf, before the delivery of the cargo.
Leading American Cases and Notes upon the Law of Wills, embracing Testa
mentary Capacity, Undue Influence, the Adinission of Oral Testimony in Aid of the Construction of Wills, the Execution of Wills, &c. By ISAAC F. REDFIELD, LL.D. Boston: Little, Brown, & Co. 1374.
“ There is no book," says a German writer, “ so worthless that I cannot collect something useful from it;” and it would be clearly presumptuous to say that this collection of cases is without merit. If it were our only book on the subject, it would be very useful. But when it is considered that the learned author has already published an elaborate work on Wills, in which his own views are fully presented and the authorities carefully collected, with copious extracts from the opinions of the courts either in the text or notes, we submit that there is no call for another book from the same author, consisting mainly of a reprint of some of those opinions in full. The author's notes discuss no question, we believe, which is not fully considered in the original book, except the effect of a belief in modern spiritualism on testamentary capacity. Here he dissents from a recent opinion of Judge Kent, of the Supreme Court of Maine. That eminent judge held that where testamentary capacity and freedom in making the will are attempted to be impeached on the ground of the testatrix's belief in spiritual communication with her deceased husband in regard to the provisions of her will, and also that her son-in-law possessed supernatural power to influence his wife, and that he was himself under the power of devils, thus inducing her to tie up her estate, so that he should never have any benefit of it, the jury must determine how far these beliefs are founded in insane delusion, or exercise undue influence upon the testatrix in regard to her will, they being properly instructed as to what constitutes insane delusion or undue influence.
Mr. Redfield, on the contrary, is of the opinion that if spiritual communications, so called, had any the slightest influence upon the mind of the testatrix in producing an unequal and unjust will, it cannot be upheld. With the exception of this note, whose soundness may well be questioned, we are not aware that the author has thrown any new light upon the subjects discussed. Indeed, he constantly refers to his original work for a fuller discussion of the topics presented in his notes. A half-dozen or more of recent cases are cited, which are not referred to in the last edition of his book on Wills.
Many of the opinions given deal very largely with evidence. For instance, we have a characteristic dissertation from Judge Lumpkin, in which he reviews