the court may then hear the parties on the merits of the petition for a new trial.

Walker &c. v. Maxwell, [p. 104.] In this case two new questions were decided. 1st, that the allegation, by a defendant who be longs to another state in the union, that the debt for which he is now sued has been attached in his hands as garnishee by process of foreign attachment in his own state, at the suit of a creditor there,...that all the proceedings in the foreign attach ment were pursuant to the statute in such state, is not sufficient. The statute should have been set forth, that the court might see whether the proceedings were authorized by it or not. 2d, that amendment may be allowed, after argument on demurrer. We have called these new points; the second was not a new question, being the same that was decided in Holbrook v. Pratt, [p. 96] but the decision was new, being directly contrary to the for

mer one.

This case occupies twelve pages, little less than a fortieth part of the volume, and costs every reader 10 cents,...a great deal more than it is worth. It was not necessary, to state the pleadings; that part printed in italics and the substance of the rest would have been sufficient. There is nothing in these records of pleadings so excellent as to merit insertion at length. It is but justice to Mr. W. to say, that his statements of facts seem much more correct than those drawn up by the counsel, which are often stuffed with impertinent matter; and in some instances so erroneous, as to require correction by the reporter.

Other examples might be given of statements and reports unnecessarily prolix. There are also

cases where the statements are in complete. But we shall leave it to the sagacity of our learned readers to discover and point them out. On this subject we shall barely mention some slight inaccuracies in the case of Harris v. Clap, &c. [p. 308].

It would appear from many parts of the report that the judgment was at law and not in equity. And yet the chief justice speaks (p. 319, 320) of the surety coming into the court as a court of equity for relief.

The four judges, who were of opinion for the plaintiff, agree that the interest on the award shall commence at the expiration of 120 days from the acceptance of it in the common pleas, which was 1st Tuesday January 1798; and yet the interest appears to have been cast from the 13th June 1798, the time of commencing the suit on the bond. The judges do not seem to be agreed as to the time, from which interest might be computed on the penalty. Thacher J. fixes on one hundred and twenty days after the judgment on the award, as the period. Sewall J. (we think with more propriety) fixes on the demand, that is, the commencement of the suit in the case before the court. It would seem that the judgment was at law. The debt adjudged to the plaintiff was $5000 the penalty of the bond, and $1480,55 cents, as damages for the detention of the debt; and yet the true measure of damages seems to have been declared to be the penalty and interest on it from the commencement of the suit. What but equity prevented the plaintiff from recovering full interest, viz. $2025? The defendant did not ask equity. We have not looked into this point. Perhaps

courts of law assume the right of limiting interest to the equity of the case. The doctrine may be, that the penalty is forfeited, and that the court, in their discretion, give such damages, and no more, for the detention of the debt, as the plaintiff shall have sustained. The one shilling usually given in England seems to imply, that some damages must be given, and that less than the whole interest may be given. It has not been usual here to give any damages for the detention of the penalty of a bond, and the framers of the statute of 1 March, 1799 [III. p. 29] do not seem to have conceived, that interost might be given on the penalty or damages for the detention of it. We were singularly struck with the case of Porter v. Bussey. [p. 436.] No reason is given for the decision, but we are favoured with a very good argument of one of the learned judges against it. We cannot say what our opinion might have been, if we had been favoured with the reasons of the court. At present we incline to the opinion of the judge, who dissented.

Doubtless other cases besides those mentioned will occur on a careful perusal of this volume, in which the critical and learned reader may be inclined to think, that the facts have not been clearly and concisely stated, and the grounds of the decision perspicuously reported. But they are not very numerous, nor are the defects perhaps very important. We think

.the

greatest errour is on the side of prolixity. The author has too often, we believe, "yielded to inferiour sense, and doubted his own;" a fault not very common at the present day, and which the reporter will probably mend, if he continue to follow the trade of an author. At the beginning of the Vol. III. No. 3. T

work we observed a small impropriety, which the reporter seems himself to have corrected at an early stage. We mean the describing of the action immediately after the names of the parties: thus," Debt. This was an action of debt." "Assumpsit. This was an action of assumpsit," &c. But there is another redundancy, which runs through the whole work. We allude to his always naming the judges who concurred in the opinion stated. We think the publick ought to know, what judges decided; but we are of opinion, that this knowledge would be better communicated by stating, in general terms, that the unanimity of the court is to be understood in every case, where a difference of opinion is not expressly stated; and where all the judges did not attend, at any term, or in any particular cause, a short note at the beginning or end of such term or cause, as the case may be, would have saved a great number of very unnecessary repetitions.

Where a judge adds nothing to the grounds or reasons of the decision, it seems quite unnecessary to state that such justice thought the plaintiff was entitled to judgment, and not the defendant. It would be sufficient simply to say, that such justice or justices concurred.

It has appeared to us, that Mr. W. is not particular enough in his method of citing states. In some instances we are left to conjecture what statute was intended. The date of our statutes is generally given, but the titles being sometimes omitted, and several having been enacted on the same day, considerable time is sometimes required to find the one referred to. We readers expect that authors will spare no pains to promote our

ease and convenience. It would have been easy for Mr. W. to have referred to the volume, page, and even section of the act. When he has done this, we have found our labour considerably lessened.

The learned judges [in p. 60, 61, &c.] speak of the statutes of Edward the third, and James the first, relating to the office of justice of the peace. Either they or the reporter should have informed us, what particular statutes were intended. During the long reign of the former, no less than three hundred and eighty-six statutes were made. It is possible the judges referred to Edward III. anno 1, c. 16, 2 c. 6, 4 c. 2, 9 c. 5, 18 stat. II. c. 2, 18 stat. IV. 34 c. 1. James I. anno 7, c. 5, 21 c. 12. The same remark applies to some other English statutes alluded to in the work. The references to the very few authorities cited are generally correct; but what book does the author mean by I. Wm.'s Abr. 427, [cited in p. 50]? Does he mean I. P. Wm's Rep. p. 429, or Wm.'s Dig. of the stat. law, which is in a single volume in our edition ?

We have observed also a loose method of quoting passages from statutes, &c. These quotations, in our opinion, should be exact. The author is not obliged to take any more than what he deems apposite; but he should cite literally. And though perhaps the variations in this volume are not very material, yet we condemn the practice as leading to errour.

On a careful perusal of this volume, but not with any particular view to find errours in grammar, or errours of the press, we have discovered, as we conceive, a number, not noted by the author in his errata. Some of these we shall subjoin to our report. They are sufficiently numerous to prove,

It

that our authors and printers are too negligent, when they appear before the tribunal of the publick. To the haste with which the work appears to have been prepared for the press, and run through it,is no doubt to be attributed many of these mistakes. But, we think, the publick would have gained more in correctness, than they would have lost by delay, if the publication had been deferred a few months. We can assure our readers, that we have not wished to find errours. would have given us more pleasure to have pronounced the work faultless. Mr. W. is a lawyer, and from his notes it would appear, that he is no mean one. We consider these notes as judicious, and useful in lustrating, and sometimes correcting the text. wished to meet with them more frequently. Professional gentlenren are greatly indebted to Mr. Douglas for his learned and careful notes in his very excellent reports. When the decisions of the King's Bench, with lord Mansfield at the head of it, admit of illustration and correction from notes of a reporter, no court in this country can complain of this freedom taken with their determinations. It has, besides, the sanction of Mr. Justice Foster's opinion and example.

We

It is not, perhaps, expected that we should review the decisions and opinions of the court, contained in this volume. This task will be undertaken by the several members of the profession, labouring in their vocation, by the publick, by our judicial tribunals, and we hopeby the learned judges themselves. Decisions in this state have been hitherto so little regarded, that, we have no doubt, some of these will be questioned; and that succeeding judges will go upon broader

ground, than that avowed in Engdand, where it is held, that judges are bound by determinations previously and solemnly made, where the same points come again in litigation; except where the decisions are most evidently contrary to reason, manifestly absurd or unjust, or clearly contrary to the divine law. It would, perhaps, be going too far to say, that any of the judicial opinions recorded in this volume are deserving of these harsh epithets; and yet we will venture to predict that some of them will be found incorrect; and that they will neither receive the sanction of succeeding judges, nor the approbation of the sages of the law in the other states. We will venture to include in this number the decision [Bartlett v. Knight. p. 401] contrary to a former one in this state, that a judgment, brought from another state in the union, has not the same effect here, which it would have had if used in the state in which it was recovered.* The reasoning of the learned judges (if ît merits to be called reasoning) in support of their opinion, carries little weight with it. The contrary was decided in the circuit court of the U. S. in Pennsylvania [Armstrong v. Carson's Ex'rs. 2 Dall. Rep. 302]. We think, with Mr. Justice Wilson, that whatever doubts there might be on the words of the constitution, the act of congress has effectually removed them, having declared in direct terms, that the record shall have the same effect in the court into which it is carried, as in the court from which it was taken. We are the more dissatisfied with this decision, because it seems to savour of a spirit of disunion. It has

The Chief Justice and Justice Strong were At present when this decision was made,

some appearance of a preference (which, we fear, is unjust) of our judicial proceedings to those of the other states in the union.

We cannot subscribe to some of the opinions expressed in the case of Foster v. Abbot Adm'r. [p. 234.] We think the facts of the case furnished a complete bar. What do the learned judges mean by a decree of insolvency? If they mean a decree of distribution, do they intend to assert that, till this decree is made, a creditor, whose claim is rejected by the commissioners, and who does not prosecute by way of appeal according to the statute, may sue at common law ?

Nor can we yield our assent to the decision in the case of Fales v. Thompson, [p. 134] on the point that the assignees of a bankrupt are not entitled to come in and prosecute a real action commenced by the bankrupt.

In a case, circumstanced as that was, we incline to the opinion that the deed of Asa Thompson, the father, was fraudulent as against the plaintiff.

Other decisions might be mentioned as exceptionable; but we forbear entering further into the subject. If the learned judges should be disposed to think, that we have already gone too far, we trust that we shall have their forgiveness, when they consider that we have differed less in opinion with the court, than they have differed from each other. We can assure them, that the observations we have made, have not proceeded from a desire, on our part, to depreciate their learning or talents, for which we have the most cordial respect; nor with a view to lessen the value of Mr. W.'s labours; for we believe, they will prove advantageous to the publick, and honourable, we sincerely wish we