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The American law register and review, Volume 40 online

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in the nature of things probably never will be, entirely
harmonious in their views. Rarely has an important case,
involving the construction of this clause, been decided with-
out a dissent from one or more members of the Court, and
the most that can be hoped for is the determination of each
question as it arises, and the gradual settlement of princi-
ples as they can be extracted from these cases.

The book of Mr. Lewis contains an accurate statement
of these principles so far as they can be considered settled
by the adjudications of this tribunal. — H. B. Brown.



Corporations m Pennsylvania. By Walter Murphy, author of
*' Partnerships, etc., in Pennsylvania." Two volumes. Phila-
delphia, 1891. Rees Welsh and Company.

In these two volumes Mr. Murphy presents to the pro-
fession a digest of Pennsylvania decisions on the law of
corporations, as well by County Courts as by the Supreme
Court of the State. The work includes an elaborate index,
which is in itself a digest, for it includes under the appro-



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6 BOOK REVIEWS.

iate headings a summary of the matter set forth at greater
igth in the text One of the most valuable features of
is index is the chronological list of Acts of Assembly from
13 to 1890, the date of each act serving as a caption of a
ragraph of a summarized decision in construction of the
Uute. In his preface the author expresses the hope that
5 work may be useful. There is no doubt that this hope
11 be realized ; with Mr. Murphy's digest in hand the
wyer will have little diflSculty in finding what the courts
ve said on a given point. The system of references and
3ss-references is reasonably good, and the division of
pics is on the whole satisfactory. What we call *'Cor-
ration Law '' is as yet a heterogeneous mass, and it would
unfair to criticise the maker of a digest on the ground
at his classification is not always logical. There is in this
)rk perhaps too strong a tendency to place implicit reli-
ce in the syllabus of our reported cases as a faithful ex-
nent of the decisions. An examination reveals a few
stances in which the opinion of the Court in a digested
se does not fully sustain the reporter's syllabus.

On the whole the digest is a good one. It is convenient
size and the general * ' make-up ' ' of the book is excellent.
It the book is only a digest ; we cannot assent to the
thor's statement that it ** possesses all the qualities apper-
ning to a treatise or text-book on the subject of corpora-
ls. '' It contains the materials for a treatise, but then,
), the census tables contain materials for an essay on
pulation. ^ G. w. P.



\DiNG Cases Simplified. A Collection of the Leading Cases
OF CoMMpN Law, Leading Cases in Equity and Constitu-
tional Law, and Leading Cases on Criminal Law. Three
volumes in one. By Professor John D. Lawson. Bancroft,
Whitney Company, San Francisco, 1892.

This is not a new edition of Professor Lawson's book,
le three volumes in which the work originally appeared
t now bound together and sold as one volume. This
iders the whole more convenient to handle and, we pre-
ne, eflfects a reduction in the price. The change in form,



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BOOK REVIEWS. 417

if not in substance, renders it fitting that something should
be said concerning the work itself. In his preface to the
first volume the author sets forth his objects as follows :
**In this little book I have aimed at these results : (i) To
give the student a collection of the acknowledged leading
cases on the common law.'* (Subsequently the author has
added Equity, Constitutional and Criminal Law.) (2) **To
present these in a style which shall arrest his attention and
render it possible for him to acquire their principles readily,
and fix those principles in his mind unincumbered by un-
important and sometimes unintelligible facts."

Of the last object it may be said that no praise is too
high for the many merits — there are few defects — of Prof.
Lawson's style. Though the cases are presented in as hu-
morous a light as possible, to use the author's own w6rds,
** humor has never been indulged in at the expense of
truth."

Since the publication of the '* Comic Blackstone," the
idea that the dry statements of law can be presented to the
student coated with the sugar of absurdity, is very preva-
lent, .and Mr. Lawson's book is partly a justification for it.
He has shown that many cases can be made funny without
sacrificing either the statement of the facts or the principles
of law. Of course all discussion of the merits and defects
of a principle is necessarily eliminated. But his reports^
also prove that the facts of many cases are invariably dry.
It is seldom that the (humorous?) report of any case on con-
stitutional law will raise a smile on the most risible. lu
those cases which are really funny the humor will be appre-
ciated much more by a lawyer, who thoroughly knows the
cases, and therefore requires no effort to grasp the principles,
than by a layman, who reads for the purpose of self- improve-
ment. In fact, one may venture to predict that the value
of the work is chiefly as an aid to one desiring to review,
and fix in his mind, the principles of the law originally
learned in the lecture-room, through text-books, or from
the reports. For this purpose, it is well worth reading, not
only by the student who desires to prepare for an examina-
tion, but by the lawyer who wants to refresh his memory
27



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i BOOK REVIEWS.

the easiest and pleasantest way, of those cases which
)t illustrate the principles of law.

Prof. Lawson has published the Six Carpenters Case
1 other reports in rhyme by the ** Apprentice of Lincoln's
1." This fact alone would render the book well worth
ning.

Concerning the author's first object, it may be said that
re are two ways in which a student can obtain a knowl-
fe of the principles of law : Through a direct examina-
tt of the principles themselves as stated in the text-
)ks, or through a review of the reports of cases which
istrate those principles. A mixture of these two ways
he method which has been adopted by most compilers
'* Leading Cases." A case is given, and then the prin-
le, together with its modifications, is discussed. Con-
ning the merits of the system nothing need here be said,
tids are not all cast in the same mould. To many the
es on Smith's '* Leading Cases " have proved a mine of
jrmation, to others a hopeless labyrinth of confused
jwledge. Prof. Lawson has adopted a radically different
aciple in his " Leading Cases."

The reader will not only find the fifty or sixty cases
ich are ordinarily spoken of as leading, simply because
y, or the notes which commentators have written to
m, are constantly referred to in the opinions of the
rts, but some two hundred and fifty additional and care-
y selected cases. In fact, many of the cases reported,
ecially from the American courts, can hardly be called
ling, in the sense that they are widely known by the
fession. This, however, does not detract from the
rits of the work, which is rather a collection of
?s in illustration of the leading principles of law, than
ply a collection of acknowledged leading cases. The
re number of cases enables the compiler not only to illus-
:e a principle, but often to show its leading modifica-
is without resorting to notes. Thus, in illustrating the
of contracts we have, under the head of '*Considera-
i," not only the rule that forbearance to sue is a sufB-
it consideration, shown by the case of Hockenbery v.



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BOOK REVIEWS. 419

Meyers,' but the modification that there must be a legal
cause of action is illustrated by the report of Palfrey v.
Portland R. R. Co.* In several instances two or three
cases illustrating the same rule are given. Thus, under
the head of *' Contracts by Post," are reported Adams v,
Lindsell,* Taylor v. Merchants' Fire Ins. Co./ and House-
hold Fire Ins. Co. v. Grant*

Though there is only one note in the report of sixty
odd cases on contracts, one who fixes these cases in his
mind will have a very fair idea of the subject. The whole
affords, we believe, a much clearer view of the law than
could possibly be gained from reading elaborate notes to a
smaller number of reported cases.

But all branches of the law are not capable of such
simple illustration. The cases illustrating the judicial
interpretation of the Statute of Frauds, for instance, give
one but an inadequate idea of the confusion of thought
which has resulted from the attempt to construe what ought
to have been made a part of the law of evidence, as a codi-
fication of the substantive law of contracts.

In reporting equity cases. Prof. Lawson seems to have
given up the attempt to give, through the reports of de-
cisions, an adequate outline of the law. Thus, in the very
commencement, under the head of Uses and Trusts, in the
attempted report of TyrrePs case* he says: **The facts
need not be given here, for it is suflScient for the student
to remember only the important principle it decides.
. . . There cannot be a use upon a use.^^ Then fol-
lows a note on the Statute of Uses and the doctrine of
Trusts. In the same way, it has been found necessary to
add a note to almost every equity case in order to give the
reader any conception of the law at all. It may be said
that the value of the work falls in proportion to the
increase in the number of the notes. More cases and less
notes would have been advisable.

Dealing with Constitutional law, Prof. Lawson seems

> 34 N. J. L. ,346. M Allen, 55.

» Bam & Aid., 681. * 9 How., 390.

* 4 Ex. Div., 216. • Dyer, 155 a.



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420 BOOK REVIEWS.

to find the same difficulty of illustrating the law as it exists
to-day through concise reports of cases. It may be sug-
gested that one of the principal reasons for this is the fact
that in this branch the same care in selection of cases, which,
with accuracy, conciseness and clearness of statement, is
the chief merit of the rest of the work, has not been dis-
played. Constitutional law has undergone so many modi-
fications of late years, that many cases, once justly called
leading, no longer illustrate the present position of. the
Court.

From the fact that the report of the case of New York
V, Miln* and the report of the License Cases* are both
retained, it is evident that the work has not been revised
since 1882, when the last volume was published. Such
a revision would have eliminated these two cases, as it is
extremely doubtful whether the former expresses the law
as it exists to-day, and the latter has been expressly over-
ruled.* The logical arrangement of the subject, however,
largely redeems this part of the work from these serious
defects. w. d. l.



A Treatisb on thb Laws of Insurance ; Firb, Life, Accident,
Marine ; with a Selection of Leading Illustjeiative Cases,
AND AN Appendix of Statutes and Forms. By George Rich-
ards, OF THE New York Bar, and Lecturer on Insurance
Law in the School of Law of Columbia College. New York
and Albany : Banks & Brothers, 1892.

This is a book of peculiar interest and importance.
It is an admirable work to put into the hands of students,
for whose use it is primarily designed. It will also be of
service to the profession, as well on account of its clear
statement of important principles, as by reason of its satis-
factory discussion of the law applicable to standard fire and
other policies now in common use. It may, therefore, justly
be called an important book, and it is an unusually inter-
esting book, because it represents *' the result of an eflFort
to combine the advantages of the two more prominent



» II Pet, 102. 2^ How., 504.

•Leisy v, Hardin, 135 U. S., 100.



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BOOK REVIEWS. • 42 1

methods in use for teaching law, commonly known as the
text-book and case systems, the comparative merits of which
have recently aroused widespread and thoughtful atten-
tion." Such is the author's own statement in the opening
lines of his exceptionally thoughtful and well-reasoned pre-
face. Mr. Richards contrasts the treatise or text-book
system of instruction with the case-book system, character-
izing them as follows : ** The former method is more syn-
thetic and abstract, the latter more inductive and concrete.
The former is more theoretical, and, in a sense, more scien-
tific; the latter, while embracing a narrower range of decis-
ions, is, with respect to the particular adjudications and
principles which it includes, more definite, practical and
thorough." Believing that each of these methods ** pos-
sesses points of superiority over the other," Mr. Richards
has endeavored in this work to combine the advantages of
both systems, with the hope, as we suppose, that as a
result of the combination the disadvantages of both will
be eliminated. Accordingly, the second part of the book
consists of a reprint from the original report of leading cases
illustrative of the principles discussed. These cases, be-
tween fifty and sixty in number, are carefully selected and
are grouped under chapter headings corresponding with
those in the first part of the work. When these cases are
read in connection with the chapters to which they corres-
pond, the advantages of Mr. Richards' method of combina-
tion become evident The dangers and disadvantages of the
text-book system are, to a great extent, avoided, while the
greatest objection urged against the case system, that the
student is induced ** to pin his faith to isolated decisions,"
is altogether overcome.

On the other hand, the combination method, as exhib-
ited in this book, does not do full justice to the case system.
It is impossible, in the nature of things, that the most
characteristic advantages of that system should be here ex-
hibited. The reader does not see the law grow before his
very eyes as he does when he peruses ^ larger volume of
well-selected cases arranged in chronological order. He
cannot, under the combination method any more than un-



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Z • BOOK REVIEWS.

r the text-book system, study the pasl of the law in the
y in which he is compelled to study its present. We
ve no option as to the way in which we shall keep pace
th the present development of legal principles ; we must
id such cases as we deem important as fast as they are
:ided — day after day — year after year. It is, indeed, true
it we cannot say with certainty of a given case, ** This
vision will be law a century hence " — while we can assert,
thout hesitation, of many a case a century old that it is
t law to-day. But the accuracy of our judgment respect-
l a new decision will approach certainty if our legal
owledge has, so to speak, ** grown up with the law " —
by watching the development and evolution of principles
: have become imbued with the genius of the law. By
ians of the case system we become familiar with the
ithods by which results are reached as well as with the
;ults themselves. We can not only survey the completed
ucture, but we can mark the progress of the work
d scrutinize the process of fitting stone to stone; and it is
be observed that the stones which the builders have re-
jed possess an educational value as well as those which
ve been accepted ; so that overruled cases are only less
itructive than those which represent the law to-day.

The advocate of the text-book system, and even Mr.
CHARDS himself, might reply to these observations in the
iguage of a very eminent English judge of our own day.
the introduction to his Digest of the Law of Evidence,
R James Fitzjames Stephen uses the following Ian-
age :

** Lord Coke wrote, * It is ever good to rely upon the
oks at large; for many times Compendia sunt dispendia^
d Melius est peter e fontes quam sectari rivulos.'^ Mr.
fiTH chose this expression as the motto of his * Leading
ses,' and the sentiment which it embodies has exercised
mense influence over our law. It has not, perhaps, been
65ciently observed that when Coke wrote, the * books at
ge', namely the * Year Books' and a very few more
)dem reports, contained probably about as much matter
two, or at most three, years of the reports published by



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BOOK REVIEWS. • 423

the Council of Law Reporting; and that the ^compendia (such
books, say, as Fitzherbert's * Abridgment') were merely
abridgments of the cases in the * Year Books' classified in
the roughest possible manner, and much inferior both in
extent and arrangement to such a book as Fisher's * Digest'
In .our own days it appears to me that the true fontes are
not to be found in reported cases, but in the rules and prin-
ciples which such cases imply, and that the cases them-
selves are the rivuli^ the following of which \s2i dispendtum.
My attempt in this work has been emphatically petere
fontes^ to reduce an important branch of the law to the form
of a connected system of intelligible rules and principles."
To this reply may be made that if any such work could be
completely successful, Mr. Justice Stephen's Digest would
be. But a most thorough test of that truly wonderful book,
made within the writer's own observation, has demon-
strated that a student who has thoroughly mastered its
clear and concise statement of principles is, nevertheless,
incapable of applying them successfully to the solution of
a case stated, unless he has studied — not merely syllabus-
examples, like those which Mr. Justice Stephen appends
to his text — not merely *' illustrative cases," like those
which Mr. Richards prints-^but the very cases, in their
chronological order, from which, as from a fons splendid-
tor vitro^ Mr. Justice Stephen has deduced the principles
themselves.

But, after all, even if such a criticism has validity, it
amounts to nothing but this — that ** Richards on Insur-
ance" is not a perfect book, because it does not possess all
the advantages of every conceivable method of teaching
law and avoid all the disadvantages of those methods. The
fact is, as a most thorough examination has convinced us,
that the book is a careful and scholarly presentation of the
subject. It is clear and concise, and even the more ab-
struse questions discussed are treated in such a way that they
will be readily understood by the merest tyro. It is to be
regretted that the work is not provided with an index.
T^he table of contents, though full, does not take its place,
and the value of the treatise as a book of reference is some-
what impaired by the omission. g. w. p.



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424 ABSTRACTS OP RECENT CASES.



ABSTRACTS OF RECENT CASES.

Selected from the current of American and English Decisions.

BY

William Wharton Smith, Horacb L. Chryney,

Hbnry N. 8MALTZ, Francis Cope Hartshorns,

John A. McCarthy.



Banks— iNsoi^vENCY— Check for Coi.i.kction— Rights of De-
positor.— Certain checks, marked "for deposit," were deposited with a
bank and were regularly credited upon the pass-book of the depositor.
There was no agreement that checks when deposited should be considered
as cash, or that the depositor could draw on them before collection, but it
was the custom of the bank after the dose of each day's business to
credit all deposits at their face value, and in case a check should be re-
turned from the clearing-house uncollected, to charge the depositor with
the check and thus cancel the credit. It was also the practice of the
bank to allow depositors to draw against checks deposited before they
were actually collected, but this depositor had never done so except in a
few special instances, when a special agreement was made by which the
bank agreed to advance certain specified sums of money on the depositor's
checks in excess of his deposits. It was held that under these facts the
title to the checks would have passed to the bank, and the relation of the
depositor to it would have been that of cre<litor, but as the bank was, at
the time the deposit was made, insolvent, and its doors were closed fifteen
minutes afterward, the title to the checks did not pass from the depositor
to the bank : City of Somerville v. B6al, Receiver, Circuit Court of the
United States. District of Massachusetts, March 14, 1892, Colt, J. (49
Fed. Rep., 791).-/^. L. C

CoNFucT OP Laws— Formalities in Execution of Contract
— Limited Partnership. — A contract made in Louisville, between the
agent of a limited partnership, organized under the laws of Pennsylvania,
and a Kentucky corporation, was not executed with the formalities re-
quired by the laws of Pennsylvania in contracts of such partnerships.
Held : That the question of the validity was to be determined by the
laws of Kentucky, where the contract was made, and not by the laws of
Pennsylvania : Park Bros. & Co. v. Kelly Axe Manufacturing Company,
Circuit Court of Appeals of the United States, Sixth Circuit, January 16,
1892, Jackson, J. (49 Fed. Rep., 618).— //I L, C,

Constitutional Law -Interstate Commerce.—- The act of the
legislature of a State, regulating the planting and taking of oysters in the
waters of the State, and making it unlawful for any person, not a resident
of the State, to take or transport oysters from, in or through any of the
waters of the State, or for any person, whether a citizen of the State or
of any other State or country, to ship beyond the limits of the State any
oysters taken from the waters of the State while the same are in shells,
is not a violation of the provisions of Const U. S., Art i, § 8, as a regu-
lation of interstate commerce : State v. Harrub, Supreme Court of Ala-
bama, April 5, 1892, per Coleman, J. (10 So. Rep., 752).—^. A^. S,



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ABSTRACTS OF RECENT CASES. 425

CONSTITUTIONAI, LaW — INTBRSTATB COMMERCE — TAXATION OF

Merchandise Brokers. — Cap. 96, Sec. 9, of the Tennessee laws of 1881,
provides that every person or firm dealing in any article whatever,
whether as factor, broker, buyer or seller, on commission or otherwise,
shall pay a privilege tax of I50 a year, and in addition ten cents on every
hundred dollars of capital invested ; but if no capital be invested, then
2% per cent, of their gross yearly commissions, charges or compensa-
tion, for which they shall give bond at the time of taking out the {50
license. The complainants rented a room within the taadng district of
Shelby County, where they exhibited samples and carried on correspond-
ence with their respective principals, but handled no goods, doing the
same business'as commercial drummers, the only difference being they
were stationary. They took out a license to do a general merchan-
dise brokerage business, paying the $50 and giving bond to return
their gross commissions. All the sales negotiated, however, were ex-
clusively for non-resident firms, and all the merchandise so sold was in
other States than Tennessee, where the sales were made, and was shipped
into Tennessee. Complainants filed a bill to restrain the collection of
the 2% per cent, tax on their gross commissions, a demurrer to which
bill was sustained by the Supreme Court of Tennessee. Held: That
under, the circumstances the complainants were liable for the tax. What
position they would have occupied if they had not undertaken to do a
general merchandise business, and had taken out no license therefor, but
had simply transacted business for non-resident principals, not decided :
Ficklen v. Taxing District of Shelby County, Supreme Court of the
United States, Fuller, C. J., Harlan, J., dissenting, April 11, 1892.—
F, C H.

Constitutional Law— Interstate Commerce— Police Regula-
tion—Invalidation OF Contract. — A company had been formed in
Indiana for the purpose of piping natural gas from wells in Indiana to
Chicago ^d other points in Illinois, and had made a contract with a con-
struction company for the erection of the necessary works, consisting of
the pipe-line and pumping machinery sufficient to create a pressure of
420 lt>s. to the square inch, the pressure necessary to make the gas flow
through the entire length of pipe. Before the completion of the works
the State of Indiana passed an act making it unlawful to transport
natural gas at a greater pressure than 300 lbs. to the square inch. A
stockholder of the parent company thereupon filed a bill against both
companies to restrain the further execution of the contract between them
on account of its illegality, and to restrain the parent company from
continuing the transportation of the gas at a pressure exceeding 300 lbs.



Online LibraryUniversity of Pennsylvania. Dept. of LawThe American law register and review, Volume 40 → online text (page 40 of 94)