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satisfied with the result of their labors in this comparatively new field. The most recent text-books, in which we might have expected much upon the law of telegraphs, have almost entirely neglected it. Professor Parsons, even in his later works, refers only incidentally to the subject. Judge Redfield, in his able volumes upon the law of railways, allows but a single chapter to the discussion of the questions presented in this work, and, as we think, without the careful consideration which he has given the other chapters of those excellent volumes. In the recent excellent edition of Mr. Sedgwick's treatise on the Law of Damages, the law applicable to Telegraph Companies is considered somewhat at length in the foot-notes, and particularly the question of their liability ; and it is, perhaps, the best considered article that has been hitherto presented to the profession upon this important subject.
But now we have before us an able volume which is devoted to a systematic and thorough investigation of every important question that is likely to arise under the present system of telegraphy.
It contains a careful and complete review of all the cases which have been adjudicated upon the various subjects relating to telegraphs, and the principal ones are printed almost as fully in this work as in the reports. And while it is for these reasons of great value to the profession, it is for many other reasons of no less value to business men who are engaged in the practical operation of telegraphs. This treatise presents a general history of telegraphic corporations; it specifies with much care the particular rules by which they are regulated and carried on; it intelligibly defines the duties of the operator, as well as the rights of the community with regard to the employment of these companies. The chapter upon organization is of special value to business men generally. And there are other chapters so full of sound practical ideas that we heartily recommend the book to all.
The general style of this treatise is excellent. It is tersely written. The points are briefly stated and always in the most intelligible manner. The analysis is complete, and every thing seems to be in its proper place, where one would expect to find the particular object of his search. This has been done even at the cost of repetition.
It has occurred to us that the book might seem unnecessarily self-opinionated; but considering that the subject matter of the volume is almost entirely new, and that there is also much contrariety in the judicial opinions relating thereto, it is not to be expected that the discussion should be based very largely upon precedents or usage.
Its authors have certainly shown an independence of thought in the consideration of the questions relating to the nature of the engagement of telegraph companies and their liabilities. If we cannot accept all the views presented in this work, we feel bound to give them the weight which is due to carefully considered opinions upon topics which have never been judicially settled.
The position taken in this work with regard to the nature of the engagement of telegraph companies deserves special notice:
Telegraph companies, say the authors, “receive written messages at one place, and undertake to deliver the same words or symbols to the party addressed, at another place. This is a bailment. . . Locatio operis faciendi has no place in a correct definition of the nature of this engagement." ... It is
rather “in the nature of the bailment, locatio operis mercium vehendarum. ... The character of a chattel seems to be stamped upon a message reduced to writing," &c.
True it is that such a position is taken in one or two of the cases which attempt to decide the question of the liability of telegraph companies; but in the majority of them it is positively denied. When we consider the operations of telegraph companies, the agencies they employ, and what they in fact perform, it is submitted that the above position is not the most reasonable. How can it be considered that telegraph companies are technical common carriers or bailees of any sort? They do not obtain the use of any property nor do they bail goods as such. “The telegraph company receives a written message for transmission. It uses machinery to reproduce the words of that message at a distant point, either by direct copying of it, under some alphabetical system or by translating the message into certain symbols which, marked upon paper at a distant point, are thus translated into our ordinary language. It cannot be said to be even in the manual charge of the message so transmitted, during its transmission." Birney v. N.Y. & Wash. Printing Teleg. Co. 18 Md. 341.
Is the nature of the engagement of telegraph companies different from that of ordinary agents who are employed to perform specific services ?
The chapter as to the extent of the responsibility of telegraph companies is very full and complete. The subject is first presented upon the authorities, and then the authors' views are given at length, while it is conceded by them that the weight of judicial opinion is adverse to holding telegraph companies to the liability of the common carrier, they nevertheless declare them to be so liable. Their reasons are given at length, and they are worthy of the perusal of all. The question of their liability is an open one; and whether such companies should be held to a greater responsibility than the passenger carrier, or even the ordinary bailee, is still a question of much doubt.
· The authors hold persistently to the view that telegraph companies should be held liable for loss occasioned solely by their own negligence, even where the sender of the message has not chosen to pay for repetition or insurance. We think this position entirely correct, and one which will be ultimately adopted. Upon the whole, the profession, and those who are engaged in the business of telegraphy, should welcome this book upon the law of telegraphs as, perhaps, the best which can now be written, considering the newness of the subjects discussed, and the contrariety of the judicial mind with regard to the duties and responsibilities of those who engage in the transmission of messages by the electric telegraph. Let the authors be satisfied with the result of their patient, persistent, and intelligent labors upon the first treatise concerning the law of telegraphs.
4 Treatise on the American Law of Real Property. By Emory WASHBURN,
LL.D., Bussey Professor of Law in Harvard University. Author of a Treatise on the American Law of Easements and Servitudes. Third Edition. 3 vols. Boston: Little, Brown, & Company. 1868.
THERE are some evils which are inevitable in this world; and we suppose that the expansion of Professor Washburn's excellent treatise on real property into three volumes is one of them. Such evils, too, it is common to remark, are
only blessings in disguise; and such, we believe, will turn out to be the fact in the present instance. For though it was very pleasant for us to feel, in 1864, that we had an able, accurate, and comprehensive text-book on the law of real property as it existed in this country, all in two volumes; yet it must be confessed that we congratulated ourselves a little more than the facts warranted. It is no more than the truth to say that such a treatise cannot be contained in two volumes; and when we open the present edition of Professor Washburn's work, we are surprised that we ever thought that it could. And this we say, having regard not only to the growth of the law on these various topics, since the publication of the last edition, and the increased number of important cases bearing upon these topics during the last four years; but also to the necessity, in order to make the work complete, of treating more thoroughly some matters too lightly passed over in the former editions. But especially, when we consider the importance of having these recent adjudications duly incorporated in the text, and of stating fully the points, hitherto unnoticed, perhaps, on which they turn, we are confident that the profession will welcome the three volumes of Professor Washburn's new edition as an old friend laden with another serviceable contribution.
We find the recent cases and statutes systematically, carefully, and clearly embodied in this new edition. The law is brought down to the present day, as it should be. And notwithstanding the quantity of new statute law, and of new cases thereon, requiring laborious analysis and careful compression in order to present the results without prolixity, repetition, or obscurity, we can honestly say, not only that we have found nothing to criticise, but that we have found much to admire. For it must be remembered that, to write a work of this kind, 80 various and comprehensive in its scope as to embrace the diverse statute laws, and the decisions thereon of thirty-six distinct States, is a very much more difficult task, in many respects, and certainly a much less inviting one, than to trace the thread of adjudications on a question of common law. For in the latter case the writer is not embarrassed by technical constructions of the statute, nor is he obliged to separate so entirely the decisions of one bench from those of another bench, because of a difference in the meaning or the words of the law which is passed upon. He can use all the cases to discover his principles ; while the writer in Professor Washburn's position can enjoy this pleasure only when treating of some of the oldest and most common incidents of real property; in regard to many of the topics of his work he is forced to separate his cases from regard to the interpretation of a multitude of statutes.
It is undoubtedly from the fact that Professor Washburn is seen to have executed his difficult task as well as it could be done, that the wide-spread popularity of his work on Real Property has sprung. He has composed an admirable summary of the law of Real Estate as it exists in the United States. Such is the constant communication between the different States, that lawyers in one State are in constant need of acquainting themselves with the laws of other States; while the recent radical changes in the common law, especially as respects the rights of married women, and the right of homestead, make it absolutely necessary that a work of this kind, to be really useful, should be brought down to the present time.
There is in this edition an entirely new section on the Right of Homestead, at all events, none will deny the necessity for the present edition who remember the importance of the cases relating to this subject which have been decided in this country and England during the last ten years.
It is of course impossible to speak with certainty upon such a matter; but, so far as we have noticed, all the decisions of interest upon this subject to the present time have been cited in this edition.
We can, however, speak with certainty in regard to the notes which have been added by the present editor, and which greatly increase the value of the work, and we unhesitatingly praise them for their point and brevity attained without the sacrifice of clearness and comprehensiveness.
The note to section forty-nine discusses the very important question what constitutes a partnership, and comes to the conclusion that the fact that a person has a lien on the profits, or that he is entitled to an account, though strong evidence that he is a partner, is not entirely satisfactory as an ultimate test to be applied in all cases.
We cannot do more than call attention to a note to section ninety-four, upon “Real Estate of a Partnership,” although it well deserves careful study. In conclusion, we heartily recommend this work to the profession.
Reports of Cases decided in the Supreme Court of Appeals of Virginia. By
PEACHY R. GRATTAN. Vol. XVII. From April 1, 1866, to July 1, 1867. Richmond: V. L. Fore, Printer. 1867.
We are glad to observe, in this continuation of Mr. Grattan's able series of reports, that there is no evidence of falling off in the legal learning and ability which have always characterized the decisions of the highest court of the Commonwealth of Virginia. Nor has there been any lack of opportunity for the court to display its powers in the nature of the cases to be adjudicated. Unlike some of the Southern States, in which litigation has, since the war, been restricted to comparatively few and uninteresting channels, Virginia has apparently no want of important and intricate law-suits. We are sorry that we have not been able to include cases from Mr. Grattan's recent volumes in our Selected Digest of State Reports; but we will call attention to a few of those in the present volume that have seemed most to deserve study.
In The Merchants’ Ins. Co. v. Edmond, Davenport, & Co., p. 138, the appellees insured their vessel, the Sally Magee, with the appellant corporation, on the twenty-fourth day of December, 1860. By the policy the company undertook to insure inter alia against “men of war," “ enemies," “ takings at sea," and “arrests,” which terms the court in the very clear opinion of Rives, J., considered equivalent to the common term “capture.” The ship was captured on the 27th of June, 1861, by the United States, and was subsequently condemned and confiscated by a prize court. The case is reported in 3 Wallace, 451, The Sally Magee. Judge Rives, in giving the judgment of the court in favor of the appellees, follows the law as laid down in that case by the Supreme Court of the United States, and also by the Supreme Court of Massachusetts, in 1863, in Dole v. N.E. Mutual Marine Ins. Co., 6 Allen, 373.
In Sawyer v. Corse, p. 230, the appellant was the contractor for carrying the mails between Alexandria and Washington, and a letter containing several hundred dollars handed to him by the appellee was lost, owing, as was alleged, to