The title by devise closes the view of the law of real property, and with it the present work, which has insensibly extended far beyond my original intention. The

*system of our municipal law is so vast in its outlines, *543 and so infinite in its details, that I have passed by many interesting subjects, to which I have not been able to extend my inquiries. The course of lectures in Columbia College included an examination of the remedies provided for the recovery of property and redress of injuries; and I had prepared and delivered lectures on the history of a suit at law, according to the English model, including the doctrine of special pleading. But that subject has been laid aside; for, to extend such a discussion beyond the courts of NewYork, was not in my power; and the object of the work is professedly national, and not local. I have not the means at my command to give any thing approaching to a full and correct view of the practice of the courts in *the *544 several states; nor would the value of such a work be worth the effort. The remedies, in every case, have been alluded to, and the principles on which they were founded stated, when we were upon the subject of rights; but the

Preston has given it; and I have been obliged, in the present extended state of this work, to desist from the attempt. Some provisions, as to the payment of legacies, are inserted in the New-York Revised Statutes, vol. iii. 90. sec. 43-51. They are not to be paid until after a year from the granting of letters testamentary, or of administration; and payment may be enforced by the surrogate. When a legacy, subject to a contingeney, becomes payable and is paid, it has been held to be absolutely vested, and not liable to be hung up and divested by a contingency happening subsequently. Coehoun v. Thompson, 2 Molloy's Rep. 281. (1) If the legatee be a minor, legacies under the value of $50, may be paid to the father; and of the value of $50, or more, to the general guardian of the minor, on approved security. The former rule was, that the father, quasi father, was not entitled to receive the legacies due to his minor children. Genet v. Tallmadge, 1 Johns. Ch. Rep. 3. Miles v. Boyden, 3 Pick. Rep. 213. So, after the expiration of a year from the granting of letters testamentary, or of administration, the executor or administrator may be sued for a legacy, or distributive share, if there be sufficient assets, and a demand previously made, and a bond, with approved surety given, to refund in case of need. New-York Revised Statutes, vol. ii. 114, sec. 9-17. In Pennsylvania, by the act of 1810, no devise or legacy to lineal descendants lapses by reason of the death of the devisee or legatee in the lifetime of the testator, if such devisee or legatee leave issue surviving the testator.

(1) As to vesting of legacies, see Rouse, in re, 15 Eng. L. & E. R. 183.

practice in the state courts is exceedingly diversified, and is undergoing constant changes. That of New-York, in particular, was essentially altered by the revision of the statute law. in 1830; and the science of special pleading (curious, logical and masterly as it is) has fallen into very considerable disuse and neglect in almost every part of the country, without the prospect, or perhaps the hope of revival. The general principles of equity have also been stated in the course of the work, so far as they were applicable to the various subjects which came successively under review; but, for the reasons already mentioned, in reference to suits at law, I have not undertaken to meddle with the remedial branch of equity jurisprudence. The law of crimes and punishments is, no doubt, a very important part of our legal system; but this is a code that rests, in each state, upon an exact knowledge of local law; and, since the institution of the penitentiary sys

Lord Tenterden, in 3 Barnw. & Adolph. 16, observed, that special pleading was founded upon and adapted to the trial by jury; for the object of the science was to reduce the case before trial to a simple question of fact, whereby the duties of the jury might be more easily and conveniently discharged. And to those students who would wish to study the subject thoroughly, I would recommend Stephens' Treatise on the Principles of Pleading, as being the best book that ever was written in explanation of the science. The legislature of Maine, in 1831, enacted, that in all civil actions the general issue shall be pleaded, and the defendant is not entitled to plead any other plea to the merits than a general issue, and he may give the special matter in evidence under that plea. So, also, the legisla ture of Massachusetts, by statute of 16th April, 1836, enacted, that "in every civil action thereafter to be tried in the Supreme Judicial Court, or Court of Common Pleas, all matters of law or of fact, in defence of such action, might be given in evidence under the general issue, and no other plea in bar of such action should be pleaded." In New-York the statute is not imperative, but merely allows the defendant to plead the general issue, and give any special matter in evidence, which, if pleaded, would be a bar, on giving notice of the special matter. But the courts consider the statute as very remedial, and construe the notices most liberally. Chamberlain v. Gorham, 20 Johns. Rep. 746. Fuller v. Rood, 3 Hill, 258. The enactment in Massachusetts is a thorough innovation upon the settled and orderly course of common law proceedings in the administration of justice. The danger is, that like other sudden and extreme reforms in the established law, it may prove to be injudicious and inconvenient, and operate as an oppressive check to the investigation of truth and the application of law. The English government, on the other hand, have, as late as the fourth year of the reign of William IV., in their wisdom and experience, very much restricted the use of the general issue in pleading, and increased in a tenfold degree the necessity of special pleading, as more conducive to truth, to certainty and to justice. See the American Jurist, No. 32, art. 5.

tem, and the almost total abolition of corporal punishment, it has become quite simple in its principles, and concise and uniform in its details. Our criminal codes bear no kind of comparison with the complex and appalling catalogue of crimes and punishments which, in England, constitutes the basis of the system of the pleas of the crown.

I trust I have already sufficiently discharged my engagements with the public; and I now respectfully submit these volumes to the candour of the profession, though not without being conscious of the imperfection of the plan, and still more so of its imperfect execution.

INDEX

The Roman numerals refer to the volume; the figures to the pages of this edition.