The Albany Law Journal.

ALBANY, DECEMBER 20, 1873.

SOME RARE LAW BOOKS.

Law books are generally not things of beauty. There is nothing particularly gratifying to the esthetic department of the human organism in the conventional typography and sheep skin. Some of our publishers give considerable attention to the mechanical execution of their books, and deserve and receive a good degree of credit therefor. But, after all, their labors seldom please the eye. In most marked contrast to even the very best of our books, are a series of law books that have been recently issued by Messrs. Stevens & Haynes, of London. They are reprints of some of the scarcest of the Old English Reports, and in their mechanical execution would delight the heart of Aldus Manutius, Thuanus, or any other admirer of elegant editions. The black letter type of the originals is faithfully reproduced, the curious, old-style spelling and interchange of letters have been closely followed, while the rich antique calf covers are, no doubt, superior to any thing that served to encase the original Reports. These editions have been carefully prepared, and some of the volumes have been enriched with notes added in MS. to some copy of the original by its learned owner generations ago.

whiles I considered hereupon and poysed them in the ballance of myne owne insufficiency, I remayned altogether fearefull and discouraged and then withall resolved to reserve this simple labour of myne to my owne private use for which I first made it. But calling to remembrance the disposition of the persons with whom specially I had to deale, beyng men with myndes tempered and qualified with studyes of best accompt and the work itself not myne but my collection adding thereunto the earnest persuasions of some of my best deserving friends I have adventured, as you see, under hope of your curteous acceptance to present you their withal not doubting, but yet as Learning hath no enemie but ignorance, so the ignorant, envious or opinionate Carper shall have no such adversary as the learned, nor this my simple travayl find better defense, then of those whose experience teaches them that Humanum est Errare, know how farre easier it is to find a fault, then to doe that which shal be without fault."

The second in this rare list is "Choyce Cases in Chancery." * A work which Mr. Wallace in his Reporters said was so rare, that except the copies in Temple Library and the Library of Lincoln's Inn, he had never seen more than one copy of it anywhere. The first half of the volume is devoted to "The Practice of the High Court of Chancery Unfolded," and the "Choyce Cases" fill the last half. Speaking of the cases, Mr. Wallace said: 'Like Lombard, Tothill and a few similar law works, this volume is one which those great cases that occur from time to time and stimulate inquiry into the very foundations of

The first in this series of exquisite reprints are Bellew's Cases Temp. Richard II, which bears the following title: "Les Ans Dv Roy Richard Le Second Collect' Ensembl' hors de les Abridgments de Statham, Fitzherbert et Brooke per Richard Bellevve de Lincolns Inne, 1585. At London, Imprinted by Robert Robinson dwelling in Fewter lane neere Holborne." Mr. Wallace in his " Reporters" says, "Bellew's Cases T. Richard II is very rare. Mr. Green, whose collection of reporters is complete, has a copy, the only one I ever saw, except the copy that I have myself." Bellew's Cases have been sometimes designated as the Year-book of Richard II, and they bridged the chasm existing between the third part of the year-books and the year-book of Henry IV. In his Epistle "To the Students of the Common Lawes of this Realme," the author discourses very quaintly of "howe dangerous it is by setting our accions on ye publike stage to submitte the valuation of our selves to ye censure of a multitude." Here is a paragraph from the same Epistle, which loses much of its quaintness in the modern type in which we dress it: Now

therefore, to be in every public library." The address to the "Courteous Reader" is not a model of modesty. It says, "The Title of this Book promiseth much, yet I dare assure thee no more then the Body of it will afford. And although something of this subject hath been heretofore Printed, yet (without prejudice to them) I may boldly say That none hath traced the path of Truth so fully and clearly (in the particulars mentioned in the Title) as the composer of the ensuing Discourse hath done."

"Choyce Cases in Chancery" contains about two hundred and fifty-six cases, the greater number of which bear date from 19 to 26 Eliz., 1576 to 1583. The Chancellors during the period of these reports were Nicholas Bacon, Thomas Bromley and Lord Ellesmere. If the composer traced the path of truth so fully as he claimed to have done, the courts of those early times held no uncertain doctrine about contempts, for we read on this subject, "If any offenses or contempt be committed against the Court or against

*The Practice of the High Court of Chancery, with the Nature of the several Offices belonging to that Court, and the Reports of many Cases wherein Relief hath been there had and where denyed, and known as "Choyce Cases in Chancery." Reprinted from the edition of 1672. vens & Haynes. Bell Yard, Temple Bar, 1870. calf antique.

London: SteIn 8vo, £2 2s.,

the great seal by word or deed upon serving the process, then upon affidavit then made, the party is there snapped up and committed immediately without any examination of him at all; for better it were (if the affidavit should prove untrue) to suffer that mischief to one particular person, then the inconvenience that such an high Court of Justice (as is the Chancery) or process or authority thereof should be condemned."

The next work in this goodly company is "Cunningham's Reports," the imprint upon which takes us back over a hundred years, and the cases in which bear date of the time of George the Second and Hardwicke. The advertisement, more modest than that of the Composer of the "Choyce Cases"- says: "The following cases were taken by a gentleman of considerable business at the bar of the King's Bench, during the time that Lord Hardwicke presided in that court. They have been perused and approved by some persons eminent in the law; by whose advice and under whose inspection the editor has committed them to the press."

Again, he says, "As these cases are published without any name of distinction, and without any recommendation of authority, they have nothing to rely on but their own intrinsic worth, whatever it is; and that, it is hoped, will be sufficient to support them, as it has done some books which came into the world as naked and friendless as this; but which soon broke through the obscurity of their birth by the lustre of their merit, and are now of established reputation, recognized by every Court of Judicature in the Kingdom; so universally true it is (what was said by a very great man, the highest living ornament of the law) that every case well reported speaks for itself, and reason is the best authority, and, indeed, in matters of science, no other authority ought to be submitted to. All, therefore, that the editor has to wish is that these reports may have leave to speak for themselves, and that reason, with respect to them, may be allowed to stand in the place of authority."

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Not the least valuable and interesting portion of this volume, is that devoted to "A Proposal for rendering the laws of England Clear and Certain "unique and instructive chapter on law reporting, and in behalf of an authorized body of Reporters. After a hasty glance at the Civil law, and the Institutes, Digests and Code of the Romans, the author gives a rapid history of the English reporters from the Year books of Edward III to the day of the writer. There are many sensible and forcible suggestions and remarks thrown in by the way, which we had marked

*Reports of cases argued and adjudged in the Court of King's Bench, in the Seventh, Eighth, Ninth and Tenth Years of King George the Second, during which time the Right Honourable the Earl of Hardwicke was Lord Chief Justice of that court. By T. Cunningham. The third edition, revised and corrected by Thomas Townsend Bucknill, of the Inner Temple, Barrister-at-Law, London: Stephens & Haynes, Bell Yard, Temple Bar, 1871. In 8vo, price £3 38., calf antique.

* *

for quotation, but our space will only permit a few sentences from the author's views as to a good reporter. "A reporter thus appointed," he saith, "should have a liberal education; understand both the theory and practice of the law; be able clearly to comprehend the reasoning of the judges, and be ready at writing down what he hears in short-hand or otherwise; and, afterward, properly digesting it. And to do this effectually, the matter should be methodised in such a manner, the several facts so disposed, and the whole so perspicuous and clear, that all persons may easily understand the report. All addresses to the passions, all glosses and ornaments of counsel, which they may deem necessary in their pleadings, should find no place in the state of the case. The reporter, in telling the story, ought not to speak as one of the counsel concerned in the cause, but, as it were, as a judge. * An able reporter should likewise be so well versed in our laws, as not to be a stranger to the greatest part of what is cited out of the books; for, unless he thoroughly conceives what comes from the bench and bar, he will be no more able to execute this office with success, than one who was ignorant of the principles of astronomy or anatomy would be able justly to report a lecture in either of those sciences. It is impossible,' says Lord Coke, 'to make a just and true relation of any thing he understand not.'" Another observation seems so pertinent to the times, that we will not exclude it; "after the revolution, and during the reigns of King William, Queen Anne, King George I and his late Majesty, many reports have been published, most of which 'let open the windows of the law to let in the gladsome light, whereby the reason thereof may be clearly discerned,' and tho' 'some of them, as Justice Shelley said, might be compared to Banbury cheeses, whose superfluities being pared away, there would not be enough left to bait what Lord Hale called the Mouse-trap of the Law; yet, probably, the meanest of them may, like the little birds, add something toward building the eagle's

nest.'

"Cooke's Reports" come next in this "Grand Companie," and in a dress quite in keeping with the rest. Sir George Cooke was Chief Prothonotary of the Common Bench, and a very able Chief Prothonotary and reporter he was declared to be, in Palmer v. Edwards, 3 Wilson, 184. Messrs. Stevens & Haynes were induced to select this report, as the next in their series, by reason, partly of its great scarcity, and partly by having become possessed of a copy formerly belonging to Mr. Justice Nares, and containing numerous MS notes. These notes, it is said, appear to have been partly his own, and partly copied from notes made by Chief Justice Eyre. Many of these

*Sir George Cooke's Reports and Cases of Practice in the Court of Common Pleas, 1706 to 1747. The third edition, with the additional cases and references contained in MS. notes made by L. C. J. Eyre and Mr. Justice Nares. Edited by Thomas Townsend Bucknill, of the Inner Temple, Barrister at Law. London: Stevens & Haynes, 1872. In 8vo, £3 3s.

notes are elaborate, and all add greatly to the value of the volume.

Brooke's New Cases Temp., Henry VIII, Edward VI, and Mary,* though oldest in time, is the next in order of publication of this series of Old English Reports. It was first published in 1578, seven years prior to "Bellewe's Cases," and was compiled by the said Bellewe. There is much in it of the quaint and curious, as well as of the instructive, but we have not space at this time to notice it further.

Kelynge's Reports in Chancery and King's Bench,† is the sixth of the series, and the publishers state that they have reproduced it, "to enable Libraries and the Profession to complete their series of Early Reports, and which, owing to the great scarcity of the Work, many hitherto have been unable to do."

The most recent issue of this goodly procession is Kelynge's Crown Cases. There have been two editions of these cases, the first published in London in 1708, folio, and the second, Dublin, 1789, octavo. Neither of these contained all the cases by Sir John Kelynge collected and left in MS. The omitted cases are included in this edition, and for the purpose of readily distinguishing them, are printed in red ink. This is in some respects the most entertaining of these Reprints, as the interest attaching to criminal law and cases is more dramatic than is to be found in the reading of civil cases. Among other things, the volume contains the Resolutions of the Judges called together at the restoration of Charles II to determine the law and proceedings that should govern in the trial of the persons apprehended for the murder of Charles I. There are a number of these "resolves," some of which are very curious. We can note but a few of them. Here is how the person was laid in the indictment: "And it being not known who did that villainous Act; it was resolved that it should be laid that Quidam ignotus, with a Visor on his Face did the act: and that was well enough, and the other Persons be laid to be present aiding and assisting thereunto." It being agreed to lay the murder on the 30th of January, it became a question which gave

* Sir Robert Brooke's new Cases in the time of Henry VIII, Edward VI, Queen Mary. Collected out of Brooke's Abridg ment, and Chronologically arranged, together with March's Translation of Brooke's New Cases, reduced alphabetically, under the proper heads and titles, with a table of the principal matters. London: Stevens & Haynes, Bell Yard, Temple Bar, 1873. 8vo. Price, £4.

+ William Kelynge's Reports in Chancery in the 4th and 5th year of George II. During which time Lord King was Lord High Chancellor, and on the King's Bench from the 5th to the 8th years of George II. During which time the Lords Raymond & Hardwicke were Lord Chief Justices of England. Reprinted from the edition of 1764. London: Stevens & Haynes, Bell Yard, Temple Bar, 1873.

‡ Sir John Kelynge's Reports of Crown Cases in the time of King Charles II, third edition, containing cases never before Printed, together with a Treatise upon the Law and Proceedings in Cases of High Treason by a Barrister at Law, Edited by Richard Loveland Loveland of the Inner Temple, Barrister at Law. London: Stevens & Haynes, Bell Yard, Temple Bar, 1873.

the judges a deal of trouble in whose reign the said day should be laid to be, "and the question grew, because there is no Fraction of a Day." It was finally settled not to specify a reign, "and that was well enough." Among those tried was Coke, of Grey's Inn, who was of counsel against the king, and who objected that he only acted as counsel and spoke words, and that words did not make Treason. But his objection did not avail him. Even my Lord Coke could not escape scatheless, for "it was observed that in these Posthumous Works of Sir E. Coke, of the Pleas of the Crown, and Jurisdiction of Courts, many great Errors were published, and in particular in his discourse of Treason and in the Treatise of Parliament." Where one was brought up to trial for murder who had a pardon, here is what followed: "And after when he came to plead his New Pardon, and that was allowed, he paid Gloves to the Judges, which is a due fee," etc.

We believe this to be the most elegant series of law books ever published, and the enterprise of the publishers deserves and will receive a very hearty recognition. The series is to be continued by reprints of other old and scarce works from time to time.

CURRENT TOPICS.

Samuel Nelson, ex-Associate Justice of the Supreme Court of the United States, died suddenly on Saturday last at his home in Cooperstown. It was only a few months ago that he was compelled by failing health to resign his high office, after an uninterrupted service upon the bench of nearly fifty years. His retirement was the subject of universal regret, for in him was recognized a judge of profound learning, of great experience, of untiring industry and of the most incorruptible integrity and honor. In him we realized our highest ideal of a judge, and when his public career closed, we all felt how almost impossible it was to till his place. He had reached that age when death comes not unawares, but its coming to him has occasioned the most profound sorrow to a great people who have learned to honor and respect him as few men are honored and respected. An able tribute from the pen of Mr. E. W. Stoughton will be found in vol. 7 of this JOURNAL, p. 24.

The House of Representatives, on Tuesday, passed by a large majority a bill repealing the Bankruptcy Law, except as to suits and proceedings now pending in courts of the United States, wherein an adjudication of bankruptcy has been made. Such cases are to be proceeded with and governed by the existing law, provided that the fees and charges of officers and agents are to be reduced one-half. The Senate Judiciary Committee has several bills before it providing either for an amendment or a repeal of the law, and at this writing it seems probable that a bill will be reported and acted upon before the adjourn

ment for the holidays. The provision of the existing law most strongly attacked is that providing for involuntary bankruptcy, and the excision of that provision is certain whatever be the fate of the law.

We print in another column the scheme of the Bar Association Committee on Reporting, and commend it to the consideration of our readers. It seems to us that the scheme is not unlike Crusoe's canoe too big to be launched. The committee want $20,000 from the State, a guaranty of $250 each from the lawyers and $50 from each subscriber: this would give them in cash and credit, supposing that only 2,000 lawyers entered into the scheme (a moderate estimate considering the fact that the scheme proposes a monopoly of all reporting in the State), the sum of six hundred and twenty thousand dollars per year. Even for the maximum number of volumes per year-eleventhe committee propose to charge at the rate of nearly five dollars per volume. In view of the fact that the committee propose to publish only those cases valuable as precedents, the number of volumes could not exceed ten, which would make the rate per volume five dollars, or, to one who did not subscribe to the whole series, one-third more. Any law publisher in the State would be very willing to take the contract of publishing the reports at these figures and guaranty the payment of the salaries of the editors and reporters, and that without the subsidy from the State or the guaranty from the profession. As a matter of economy to the profession it stands about thus: the Court and Commission of Appeals reports cost now per year ten dollars. The reports of the Superior Court and the Court of Common Pleas about the same sum, making twenty dollars per annum for all the courts save the Supreme Court. According to the proposed subscription rate there would be thirty dollars left for Supreme Court reports. The publisher of the "N. Y. Sup. Court Reports" promises to publish all the decisions of the year for fifteen dollars, and this promise he has so far kept and will continue to keep. The committee, therefore, demand from the profession fifteen dollars each per year more than is now required to secure the same matter, and also demand a large guaranty and a donation of $20,000 per year from the State. Were it not for the high personal and professional character of those who devised this scheme, we might be led to suppose that it was, in the dialect of the day, a "job." The profession is very well satisfied with the Court of Appeals reports as they are at present and under their present management. So, too, it is satisfied with the reports of the Court of Common Pleas and of the Superior Court. The evil that has vexed us so was in the reports of the Supreme Court decisions, and to this evil the committee should have confined their attention. If that committee can devise a more successful or satisfactory plan for publishing the Supreme Court decisions than

any that is now in operation we shall give that plan our cordial support. The scheme they have proposed is Quixotic. That a similar scheme has succeeded in England gives no assurance that it would succeed here. The conditions are different, the needs are different. The Bar Association were to consider the report on Wednesday evening of this week, but at this writing we have not learned what action was taken.

The nomination of George H. Williams to the office of Chief Justice is still unconfirmed by the Senate. This fact is of itself a sufficient commentary upon the fitness of the appointment. The most partizan of the newspapers are not enthusiastic over the nomination, while the majority of the newspapers pronounce the nomination a mistake and a misfortune. A recent

dispatch to the Tribune alleged that the nomination had been referred back to the Judiciary Committee to enable that committee to consider charges made against Mr. Williams by citizens of Oregon. If this

be true we shall for the first time be treated to the

spectacle of a great nation's selecting its Chief Judi

cial officer about after the manner that a woman selects her maid-servant — after an inspection of “character."

Following fast the news of the death of Judge Peckham and of Judge Nelson, comes the news of the death of John M. Parker of the Supreme Court of this State. He died at his residence in Owego on Tuesday evening of apoplexy. For nearly fourteen years Judge Parker has worthily filled the office of Supreme Court Judge. Without being what men sometimes term "brilliant," he was, what is, perhaps, of more account, strong, careful, industrious, honestqualities which always make a good judge, if not a great one. Judge Parker was elected to the Supreme Bench in 1859, and was re-elected in 1857. Previous to his election to the Bench he had served two terms in Congress.

Gov. Dix has, up to this time, made no appointment to fill the vacancy in the Court of Appeals bench occasioned by the death of Judge Peckham. Judge Fancher seemed at one time to be likely to be selected, and in some of the newspapers his appointment was announced, but it has not yet been made. The selection of Judge Fancher would give very general satisfaction, although the nomination of W. M. Evarts would very likely be received with more eclat. Mr. Matthew Hale of Albany, and Mr. E. F. Bullard of Troy, are also mentioned in connection with the office. Both of these gentlemen are able lawyers, but we should suppose that they are better adapted especially Mr. Bullard-by experience and temperament to the duties of the advocate than to those of the judge.

THE BAR ASSOCIATION SCHEME OF REPORT

ING.

The committee appointed by the Bar Association of New York, last spring, to investigate the subject of law reporting in this State, and to report a plan for its improvement, submitted last week the following scheme, which is modeled after the plan of the English Council of Law Reporting:

SCHEME OF REPORTING.

1. The reports recommended by this committee shall be placed under the general management and control of a Council composed of members to be appointed as follows:

One by the Court of Appeals.

One by the justices of the Supreme Court designated to hold General Terms.

Six by the Association of the Bar of the city of New York.

The chief judge of the Court of Appeals and the attorney-general for the time being shall be ex officio members.

In the event of Bar Associations having the same general objects and of the same general character as that of the city of New York, being formed in the cities of Brooklyn, Albany, Buffalo, Rochester and Syracuse, the said associations may each appoint one member of said Council.

2. The members of the Council]shall act gratuitously. The term of office shall be for five years. All members retiring shall be eligible for re-appointment.

3. Any occasional vacancy in the Council by death, resignation or otherwise, may be filled by a new appointment by the body which originally appointed the retiring member, and the member so appointed shall retire at the time when the member occasioning the vacancy would, in the ordinary course, have retired. 4. It is desirable that the Council be incorporated by act of the legislature.

The Council may have 'the assistance of a secretary or executive officer. The payment of his salary, and the office and other expenses of the Council shall not exceed, together, $4,000 per annum.

5. The reports shall be prepared by reporters under the supervision of the Council, or an editor, if they see fit to employ one, and the cases to be reported shall be carefully selected upon the principle of rejecting all cases useless as precedents.

6. The reports shall be divided into series, viz. : 1. The Court of Appeals Reports.

2. The Supreme Court Reports.

3. The Superior Court Reports.

4. The Common Pleas Reports.

5. The Surrogate's Court and miscellaneous reports, with such subdivisions (if any) of such series, and with such additions of the opinions of other courts as the Council may think desirable.

7. The Council shall have power, if they should find it desirable, to establish, in connection with the permanent report, a set of daily or weekly reports, and from time to time to prepare such digests or other publications as may be deemed expedient.

9. The staff of reporters and their salaries shall be as follows:

One Court of Appeals and Commission of
Appeals reporter

One assistant for Court of Appeals

$6,000 00 1,000 00

One assistant for Commission of Appeals. . 1,000 00

The salaries shall be paid semi-annually. One moiety thereof (hereinafter referred to as the first moiety) shall be paid in all events at the end of the first six months' employment. The other or second moiety shall be paid at the end of a year's employment. But for this second moiety, the reporters and other employers shall look, in the first instance, to the proceeds of the sales of the reports, and afterward to the guarantee hereinafter mentioned.

The members of the bar shall be requested to unite in a guarantee of $250 per annum apiece for three years, of all the expenses and liabilities that may be incurred by the Council, including the salaries of all employees, the cost of producing the reports, and all expenses and liabilities connected therewith or resulting therefrom.

10. The Court of Appeals possessing under the Constitution the power of appointment and of removal of its reporter, shall appoint the said reporter and remove him at its pleasure.

The legislature shall be petitioned to repeal all laws providing any compensation for the reporter of the Court of Appeals, and for his clerical help, and his compensation shall be paid by the Council.

11. It being intended by the Constitution that the judges of the Supreme Court designated to hold General Terms should appoint a reporter for the Supreme Court, the legislature shall be requested to provide for such appointment, but not for any compensation of such reporter, which shall be paid by the Council.

The legislature shall also be requested to repeal the act of 1869, providing for the appointment of a Supreme Court reporter.

12. The legislature shall be petitioned to grant to the Council of Law Reporting $20,000 per annum to pay the above salaries.

13. One of the assistants of the Supreme Court reporter shall be attached to each department thereof, and shall reside in the department to which he is attached.

14. The legislature shall be requested to enact that every General and Special Term of the courts herein mentioned, on rendering an opinion, shall cause to be indorsed thereon a recommendation of "To be reported" or "Not to be reported;" and that suitable laws may be enacted committing the custody of all opinions to the Council of Law Reporting immediately after their rendition.

15. The editor and reporters shall be lawyers. The reporter of the Court of Appeals and of the Supreme Court shall be appointed and removable by those courts. The editor, all the other reporters, all the assistant reporters and all employees shall be appointed and removable by the Council.

16. It is suggested that, in justice to the existing reporter of the Court of Appeals, the official Supreme Court reporter and the editor of Daly's Common Pleas reports, the appointing power requests them to fill the positions under the present scheme corresponding to those they now occupy. In other appointments of re