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courts of law assume the right of work we observed a small improx limiting interest to the equity of priety, which the reporter seems the case. The doctrine may be,' himself to have corrected at an that the penalty is forfeited, and early stage. We mean the des that the court, in their discretion, cribing of the action immediately give such damages, and no more, after the names of the parties : for the detention of the debt, as the thus, “ Debt. This was an action plaintiff shall have sustained. The of debt.” “Assumpsit. This was one shilling usually given in Eng- an action of assumpsit," &c. But land seems to imply, that some there is another redundancy, which damages must be given, and that runs through the whole work. We less than the whole interest may allude to his always naming the be given. It has not been usual judges who concurred in the opina here to give any damages for the ion stated. We think the publick detention of the penalty of a bond, ought to know, what judges decidand the framers of the statute of ed; but we are of opinion, that this 1 March, 1799 (III. p. 29) do not knowledge would be better comseem to have conceived, that inter- municated by stating, in general est might be given on the penalty terms, that the unanimity of the or damages for the detention of it. court is to be understood in every

We were singularly struck with case, where a difference of opinthe case of Porter v. Bussey. [p. ion is not expressly stated ; and 436.) No reason is given for the where all the judges did not ata decision, but we are favoured with tend, at any term, or in any partica very good argument of one of ular cause, a short note at the bethe learned judges against it. We ginning or end of such term or cannot say what our opinion might cause, as the case may be, would have been, if we had been favoured have saved a great number of very with the reasons of the court. At unnecessary repetitions. present we incline to the opinion Where a judge adds nothing to of the judge, who dissented. the grounds or reasons of the des

Doubtless other cases besides cision, it seems quite unnecessary those mentioned will occur on a to state that such justice careful perusal of this volume, in thought the plaintiff was entitled which the critical and learned rea to judgment, and not the defenda der may be inclined to think, that ant. It would be sufficient simply the facts have not been clearly and to say, that such justice or justices concisely stated, and the grounds concurred. of the decision perspicuously re It has appeared to us, that Mr. ported. But they are not very nu- W. is not particular enough in his merous, nor are the defects per- method of citing statutes. In haps very important. We think some instances we are left to conthe greatest errour is on the side jecture what statute was intended. of prolixity. The author has too

The date of our statutes is generoften, we believe, yielded to infe- ally given, but the titles being riour sense, and doubted his own ;" sometimes omitted, and several a fault not very common at the having been enacted on the same present day, and which the res day, considerable time is sometimes porter will probably mend, if he requireu to find the one referred to. continue to follow the trade of an We readers expect that authors author. At the beginning of the will spare no pains to promote our

Vol. III. No. 3. T

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case and convenience. It would that our authors and printers are have been easy for Mr. W. to have too negligent, when they appear bereferred to the volume, page, and fore the tribunal of the publick. To even section of the act. When the haste with which the work apa he has done this, we have found pears to have been prepared for the our labour considerably lessened. press, and run through it is no doubt

The learned judges [in p. 60, to be attributed many of these mis61, &c.] speak of the statutes of takes. But, we think, the publick Edward the third, and James the world have gamed more in corfirst, relating to the office of justice rectness, than they would have lost of the peace. Either they or the by delay, if the publication had been reporter should have informed us, deferred a few months. We can what particular statutes were inten- assure our readers, that we have ded. During the long reign of the not wished to find errours. It former, no less than three hundred would have given us more pleasure and eighty-six statutes were made. to have pronounced the work faultIt is possible the judges refer- less. Mr. W. is a lawyer, and red to Edward III anno !, c. 16, from his notes it would appear, 2 c. 6, 4 c. 2, 9 c. 5, 18. stat. II. c. that he is no mean one. We con. 2., 18 stat. IV. 34 c. 1. James I. sider these notes as judicious, and anno 7, c. 5, 2-1 c. 124. The same useful in illustrating, and someremark applies to some other En- times correcting the text. We glish statutes alluded to in the work. wished to meet with them more

The references to the very few frequently. Professional gentleauthorities cited are generally cor men are greatly indebted to Mr. rect ; but what book does the au Douglas for his learned and carethor mean by I. Wm.'s Abr. 427, ful notes in his very excellent re[cited in p. 50j? Does he mean I. ports. When the decisions of the P. Wm's Rep. p. 439, or Wm.'s King's Bench, with lord Mansfield Dig. of the stat. law, which is in a at the head of it, admit of illustrasingle volume in our edition ? tion and correction from notes of

We have observed also a loose a reporter, no court in this counmethod of quoting passages from try can complain of this freedom statutes, &c. These quotations, in taken with their determinations. our opinion, should be exact. The It has, besides, the sanction of Mr. author is not obliged to take any Justice Foster's opinion and exmore than what he deems appo- ample. site ; bat he should cite literally. It is not, perhaps, expected that And though perhaps the variations we should review the decisions and in this volume are not very mate- opinions of the court, contained in rial, yet we condemn the practice this volume. This task will be as leading to errotr.

undertaken by the several memOn a careful perusał of this vol. bers of the profession, labouring in ame, but not with any particular their vocation, by the publick, by view to find errours in gram- our judicial tribunals, and we hope mar, or errours of the press, we by the learned judges themselves. have discovered, as we conceive, a Decisions in this state have been number, not noted by the author hỉtherto so little regarded, that, we in his errata. Some of these we have no doubt, some of these will ahail subjoin to our report. They be questioned ; and that succeedass sufficiently numerous to prove, ing judges will go upon broader

ground, than that avowed in Eng- some appearance of a preference land, where it is held, that judges (which, we fear, is unjust) of our are bound by determinations pre- judicial proceedings to those of viously and solemnly made, where the other states in the union. the same points come again in liti We cannot subscribe to some of gation ; except where the decisions the opinions expressed in the case are most evidently contrary to rea of Foster v. Abbot Adın'r. [p. 234.) son, manifestly absurd or unjust, or

We think the facts of the case furclearly contrary to the divine law. nished a complete bar. What do It would, perhaps, be going too far the learned judges mean by a deto say, that any of the judicial opin- cree of insolvency? If they mean ions recorded in this volume are a decree of distribution, do they deserving of these harsh epithets ; intend to assert that, till this decree and yet we will venture to predict is made, a creditor, whose claim is that some of them will he found rejected by the commissioners, and incorrect ; and that they will nei- who does not prosecute by way of ther receive the sanction of suc- appeal according to the statute, ceeding judges, nor the approba. may sue at common law ? tion of the sages of the law in the Nor can we yield our assent to other states. We will venture to the decision in the case of Fales v. include in this number the decision Thompson, (p. 134) on the point [Bartlett v. Knight. p. 401] con- that the assignees of a bankrupt trary to a former one in this state, are not entitled to come in and that a judgment, brought from an prosecute a real action communcother state in the union, bas not the ed by the bankrupt. same effect here, which it would In a case, circumstanced as that have had if used in the state in was, we incline to the opinion that which it was recovered.* The the deed of Asa Thompson, the fareasoning of the learned judges (if ther, was fraudulent as against the it merits to be called reasoniisg) in plaintiff. support of their opinion, carries Other decisions might be menlittle weight with it. The contra- tioned as exceptionable ; but we ry was decided in the circuit court forbear entering further into the of the U. S. in Pennsylvania [Arm- subject. If the learned judges strong v. Carson's Ex'rs. 2. Dall. should be disposed to think, that Rep. 302]. We think, with Mr. we have already gone too far, we Justice Wilson, that whatever trust that we shall have their fordoubts there might be on the words giveness, when they consider that of the constitution, the act of con.. we have differed less in opinion gress has

effectually removed with the court, than they have dif, them, having declared in direct fered from each other. We can asterms, that the record shall have sure them, that the observations the same effect in the court into we have made, have not proceeded which it is carried, as in the court from a desire, on our part, to de from which it was taken. We are preciate their learning or talents, the more dissatisfied with this de, for which we have the most cordie cision, because it seems to savour al respect ; nor with a view to les of a spirit of disunion. It has sen the value of Mr. W.'s labours;

for we believe, they will prove ad. * The Chief Justice and Justice Stroag were

vantageous to the publick, and hon. Ast present when this decision was made. ourable, we sincerely wish we

could add profitable, to him ;-but expect a matured and well-digest.. principally, that we may have an ed one? The first thoughts which opportunity of expressing our sin, occur to a sensible, and if you cere conviction, that our system of please to a learned lawyer, on legal jurisprudence is radically defective, questions, may be reasonable, we and that we shall never have any grant; but they may not be so reathoroughly examined and well-di- sonable, so just, as after thoughts. gested determinations, decisions The conjectural positions of natuwhich will stand the test of time ral reason, if not fortified by prec, and serve as permament and fixed edents, if not confirmed by elerules, so long as the judges, the mentary writers, or if they are not depositaries of our law, are wan. the result of much previous study dering through the state, without and patient investigation, are al. any fixed or permanent place of ways to be distrusted. A judge abode,

should think reasonably, but he The old proverb that a “rolling should think and reason as one stone gathers no moss" is not more “ long accustomed to the judicial true, than that a court, constantly decisions of his predecessors." He în motion, settles and establishes should be well versed in history, no principles of law. When the and especially in the history of the principal business of a court is to constitution, laws, manners, and travel and to retail the law in every customs of his own country. county town, is it reasonable to ex. The study of New England an, pect deep research, nice discrim: tiquities, if we may be allowed the ination, or copious discussion on expression, is a necessary qualifia legal questions? Let our readers, cation of a New.England judge. figure to themselves our supreme We recollect having been, a few judicial court in session at Lenox, years ago, strongly impressed with for example. Questions of law and its importance on reading Hazard's trials of fact are blended together Historical Collections. It is well on the docket. Amid the tumult known, that in New-England much and bustle necessarily incident to greater regard is shewn to protrials by jury, counsel occupied bates and letters of administration and teased with clients, witnesses, brought from the neighbouring &c. it is easy to see how questions states, than is allowed by the Enof law will be argued, even by em glish law, or by the laws and usainent counsel. The judges, long ges of the other states in the union. absent from their families, can We have found our courts admits hardly be supposed to be perfectly ting executors and administrators at ease in their minds. Denied all to sue here on the authority of let. access to books, and fatigued with ters obtained in other states, tho the labours of the day, and liable, we do not recollect that we ever from their situation, to constant in- heard them explain the origin of terruptions, they cannot so much as this deviation from the English have an opportunity of communi, laws. cating their sentiments, or of hear It appears from the journal of ing one another's reasons. On Sat- the commissioners of the united urday morning they must' pro- colonies, 19th of the 7th month, nounce judgment. Under such 1648, [II. Hazard, 124, 135] “ cer circumstances is it not cruel to ex- tain propositions were commended act an opinion, and ridiculous to by the commissioners to the cong

are

sideration of the general courts of is, according to his own private the several colonies,” which, as far sentiments ; and thus we cannot as relates to our present purpose, expect to have the scale of justice were, “ that, for the more speedy even and steady. It will waver and free passage of justice in each with every new judge's opinion. jurisdiction, wills,proved and certi. It would give us pain to find ev, fied in one of the colonies, without idence in these reports, that our delay be accepted and allowed in learned judges are unfriendly to the rest : and that administration, the use of precedents ; because it granted in the colony to which the would indicate a greater reliance intestate belonged, being duly cer, on their own abilities, (and we actified, be in force for the gathering knowledge they are great) than in of the estate in the rest of the any men, in our opinion, are justicolonies.” By returns of the com- fied in entertaining. We are far missioners, it afterwards appeared, from yielding a blind obedience to that all the general courts had as

authorities. There cases, sented. Would it not have been which do not require them, and desirable,that the legislature should there are decided cases, which have made provision for publishing weigh little against clear and solid, all the old laws of the province, principles of reason. But it is well rather than the private acts passed known, that the rules respecting since the revolution ? It is appre: contracts, which furnish a great hended that the knowledge of these branch of civil business, are, in is absolutely necessary to a thor, general, the same in this and most ough understanding of what is now European countries, being most, considered as the common law of ly derived from the civil law. We this commonwealth.

ought to avail ourselves of their On perusal of this volume of decisions. It is safer for the wi. reports we were forcibly struck sest judge to lean on the matured with the small number of cases and well-settled opinions on such and authorities cited. Those of questions, than on his own private our own courts do not exceed ten, judgment. We are pleased with and those from the English books, lord Kenyon’s sentiments on this probably, fall short of one hundred, subject. “ Those, who are confidBoth lawyers and judges seem to entin theirown superiour abilities,” be sparing of authorities, and lib- says that sound lawyer and able eral of declamation and reasoning judge, “may perhaps fancy that upon general principles. In this they could make a new system of particular the work unfortunately laws, less objectionable than that resembles Root's reports. Decis- under which they live. I have not jons, which rest altogether on the that confidence in mine ; and am good sense of the judges who make, satisfied by the decisions and we ought not to say, who pro. series of decisions of great and nounce them, will be of little use. learned men, on the rules of law ; They do not make, what was un- and it is my duty, as well as my certain before a permanent rule, inclination, to follow and give effor a rule implies something bind. fect to those rules.” The same ing, something which is to be fol- great judge, speaking of lord lowed. In such cases the suc Hardwicke observes,that his knowl ceeding judge will be too apt to edge of the law was most extraorsfcide as his predecessor did, that dinary ; that he had been trained

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