learned reader. To the candour of such the reporter believes, that besides the novelty of the employment to him, several other circumstances will suggest themselves as forming some excuse for such errors and defects.'

The method, which Mr. Tyng has adopted, meets our entire approbation. It states the reasoning of counsel concisely, yet clearly, and the opinions of the court fully, and, as far as our knowledge extends from our own notes, very accurately. The points of the cause, stripped of extraneous circumstances, are generally presented in a space which is unexceptionable. The style is simple, but appropriate; and the judicious arrangement of the scholar and the lawyer is every where visible.

The volume contains a considerable number of cases, some of local, and many of general interest. It is not our design to enter into a minute review of them, either as it respects their juridical soundness or their relative importance. It is not for us to question the judgments of the supreme tribunal of the commonwealth, delivered by judges of great personal and professional respectability. They have pronounced and declared the law of the land; and from their characters and stations we should not lightly doubt the authority of principles, which have been weighed with care and argued with solemnity. In the few remarks, which we may hazard in respect to any new cases, we beg to be understood, as less questioning the law, than suggesting difficulties of our own, which are perhaps unfounded.

The decision in the case of Amory v. Gilman (page 1.) by which the validity of a wager policy at common law is here shaken, if not denied, is consonant in our opinion with the dictates of sound morals and equity. It was a gratification to us to find the opinions of Mr. justice Buller and Mr. sergeant Marshall on this subject supported by all the weight of the bench. Should the validity of wagers generally ever come in question, we hope to hear pronounced in the words of an enlightened judge* in this cause, 'It would seem a disgraceful

Mr. justice Parker, p. 6.

occupation of the courts of any country to sit in judgment between two gamblers, in order to decide which was the best calculator of chances, or which had the most cunning of the two. There would be but one step of degradation below this, which is, that the judges could be the stakeholders of the parties.'

In the Commonwealth v. Andrews (page 14,) the court decided, that where goods are stolen in another state, and received in this, as such, the party so receiving is liable to indictment at common law, as a receiver of stolen goods. The liberal spirit which dictated this decision upon principles tending to cement the polity of the union will meet, we trust, the attention of our sister states.

The case of Brooks v. Dorr and another (page 39) which decides, that a sailor is entitled to his wages, notwithstanding a capture, in consequence of which he is separated from the vessel, if the vessel afterwards proceed and earn freight, is argued by the judges at great length, and with great ability. It has shaken the case of the Friends, Bell. 4 Rob. Adm. Rep. 143. which had been previously questioned in Beale v. Thompson 3 East, Rep. 560. At the close of his opinion (page 50) an observation is dropped by the chief justice (Dana,) which we fear we do not understand. He says, 'It will be understood, that no decision is made by this judgment, of a case, in which it should appear, that seamen had been hired to supply the place of the plaintiff within the time, for which he demands wages. That is not the present question, and it will be time enough to decide it, when it is regularly before the court.' On recurrence to the state of facts it appears, that the captain actually hired other seamen to complete the voyage, and during the time for which the plaintiff claimed, and is allowed wages by the judgment in this case.

In the case of Benson v. Swift (page 50,) we observe the case of Mitchell v. Neal, Cowp. 828. cited by the counsel. That case was expressly overruled in Burgess v. Freelove,

1

2 Bos. & Pul. 425.; but by some may be thought in some degree restored by English v. Purser, 6 East Rep. 395.

In May v. Calder (page 55), it was decided, that the lease of an infant's land by his father, as natural guardian, is void. The expressions used by the court are very general; but we presume that they are to be referred to the facts of that particular case. In 1 Wooddeson, 459, 460. and authorities cited in note (1) it is stated, that a guardian by nurture may at least make a lease at will. If it did not savour of too much nicety, we should in this case call the father guardian by nurture, rather than by nature, according to the distinction in Hargrave's note on Co. Lit. 88. b. note (13).

In Richardson and another in error v. Noyes and another (page 56.) will be found a very elaborate opinion of the court, delivered by Mr. justice Sedgwick, in which the doctrine of executory devises is discussed with great learning. At the close of it, we are furnished with a note of the argument of Mr. Parsons, of counsel for the defendants in error, which has been truly declared by the court to be very ingenious and very able.

In page 77. occurs a memorandum of the resignation of chief justice Dana, and we can truly say, in the words of the reporter, 'The remembrance of the impartiality, dignity and learning, exhibited by him, will be long cherished by those who have been concerned in the business of this court, while he held a seat on the bench.' The hon. Theophilus Parsons was appointed as his successor. May this gentleman, so long the distinguished ornament of the bar, for many years continue on the bench, et dulce decus et præsidium.

The case of Perkins v. Burbank (page 81.) on a question of special pleading, we admitted with some hesitation; and had prepared a note of some length on the subject. But knowing, as we do, the peculiar eminence in this branch of law of the chief justice, who delivered the opinion of the court, and considering him entitled to the eulogy of the late lord Kenyon on baron Comyns,' that he was the ablest pleader of his day in all

Westminster-hall, we have feared a fallacy in our view of the case, and have suppressed it.*

In Pearsall and others v. Dwight and others (page 84.) is a decision in conformity with the principles in Nash v. Tupper, 1 New-York Term Rep. 402. As it is of considerable importance, and strongly illustrates the doctrine of the opera tion of the lex loci on contracts, we shall quote in a subsequent page the opinion of the court, as delivered by the chief justice.

The case of Wright v. Wright (page 109.) adjudging that the mother of a bastard child has a right to the custody of it, in preference to the putative father, agrees with Rex v. Soper, 5 T. Rep. 278. and Rex v. Mosely, 5 East Rep. 224. note (a).

In Nelson v. Andrews (p. 164.) it is settled, that arbitrators have a right to award concerning the costs of a suit referred to them. And with this agrees the English doctrine in Sheppard v. Brand, B. R. H. 53. Chandler v. Fuller, Willes 62. Barnes 56, 58. Roe v. Doe, 2 T. Rep. 644.

In Merry in Rev. v. Prince (page 177.) the question was agitated, whether the statute of 19 Geo. II. ch. 37. respecting reassurances, extended to this country; and after an able argument the court were of opinion, that it did not.

In Sparhawk v. Bartlett (page 188.) it is decided, that in this commonwealth an action lies against the sheriff for taking insufficient bail. In England the law is admitted to be otherwise; but the reasons, upon which a different adjudication is made here, are most satisfactorily and learnedly expounded in

* Lest however our doubt should appear wholiy idle we would refer to Webber v. Twill, 2 Saund. 227. Humphreys v. Churchman, B. R. H. 289. (this is usually cited, cases in K. B. 7 to 10 Geo. II. temp. Hardwicke,) Freeman v. Hurst, 1 T. Rep. 40. 1 Tidd's Pr. 3d edit. 637. note (i); Lawes on Plead. app. 238 and note (2); and the note of serg. Williams in Manchester v. Vale, 1 Saund. 28. note 2; as showing that a replication may, without being double, contain separate answers to different parts of an entire plea, provided the whole form but one complete answer to the plea, and one entire support of the declaration; and that where the plea is entire, and the replication does not contain an answer to the plea, as it respects some counts in the declaration, such replication is bad.

the opinions delivered by Mr. justice Sewall and Mr. justice Sedgwick.

An interesting discussion occurs in the case of Killam v. Ward and others in Rev. page 236. and in Gardner v. The same, cited in page 244. of the same case in a note, respecting the question of the alienage of persons, who went away from this country during the revolution, and adhered to Great Britain. The cases are argued at large, and commented on with great diligence and ingenuity by the court. A variety of important principles seem to be put at rest by these decisions, which we recommend to the examination of the bar.

We have thus noticed in a cursory manner a few of the more striking causes reported in the volume. On the whole, upon a careful review we must express our satisfaction with the manner in which the work is executed. We confidently believe, that it will reflect honour on the bar and the bench. Time may lead to some improvements in the method of an undertaking, the difficulties of which can be realized only by experience. But time will not rob the reporter of the reputation of diligence and fidelity, nor the court of the praise of ingenuity and erudition.*

As a specimen of the work we shall select one or two of the short cases, which, we regret, are all our limits will admit.

* We are led to observe, that intelligent and fair minds usually think alike on all important occasions, where they deliberately exercise their judgment, and are free from prejudice, from the circumstance, that throughout this volume we do not find one instance, in which the court are divided in opinion. It may therefore be considered as a work containing cases settled as well as adjudged. We observe likewise, that where one judge pronounces the opinion of the court, it usually combines learned research with a dignified style and manner. Instances of this are frequent in the work, and do not require a particular enumeration. A judge, feeling that he is expressing the opinion of his brethren, and that his own character as a lawyer and as a scholar is in question, will naturally on such an occasion exert all the energies of his mind. From the present arrangement of the judicial department, under the auspices of the government of the common. wealth, we indulge the hope, that the juridical character of Massachusetts is about to exhibit a 'novus ordo seclorum."