ART. VII-OPINIONS OF THE LATE CHIEF JUSTICE MARSHALL ON QUESTIONS OF CONSTITUTIONAL JURISPRUDENCE.

The Writings of John Marshall, late Chief Justice of the United States, upon the Federal Constitution. Boston: James Munroe and Company, 1839.

THIS is an octavo volume of seven hundred pages, containing forty-one cases, decided in the supreme court of the United States, on constitutional grounds, in nearly all of which the opinions were delivered by the late venerable chief justice. Several of the cases appear, however, as an appendix to the constitutional opinions of the chief justice, and, in these, the opinions were pronounced by other members of the court. The following remarks from the editor's preface will explain the principles, by which he has been guided in making the compilation before us.

"In the selection of cases the editor has been obliged to use his discretion, that the volume might not be too bulky. He has rejected those cases in which some principle was decided that has since been superseded by positive provision (such as the case of Chisholm v. Georgia, 2 Dallas, 419-480); those, also, in which a mere decision was given without the reasons producing it (for example, Stuart v. Laird, 1 Cranch, 299-309); those involving much common-law learning, and but slightly touching the federal constitution (as Green v. Biddle, 8 Wheaton, 1-108); and those relating rather to national than constitutional law (as Brown v. United States, 8 Cranch, 110-154). Dissenting opinions have, in general, been omitted; in Houston v. Moore, 5 Wheaton, 1, that by Mr. Justice Story is retained, being an expression of Marshall's view, as well as his own, upon a somewhat dark point; and in Ogden v. Saunders, 12 Wheaton, 213, the dissenting opinion of the chief justice himself is given, for obvious reasons. Three decisions made by the chief justice upon the circuit are included in the volume; and also one of the supreme court not upon a con

stitutional point,-that of Johnson v. M'Intosh; in which last, the peculiar power of judge Marshall appears so fully as to make it come properly within this collection."

The editor prefaces each opinion with a statement of the facts in the case, short, indeed, but sufficient to render the opinion intelligible. The constitution of the United States is inserted at the end of the volume. The last case contained in the volume is that of Satterlee v. Matthewson, decided in 1829, and reported in the second volume of Mr. Peters's Reports. It did not enter into the editor's plan to publish a collection of constitutional cases, but only those which were decided by the late chief justice; and, consequently, those of the last ten years are not given. The volume, therefore, may be said to present those views of constitutional law, which are peculiar to chief justice Marshall, and the jurists of his school. Some of these views have been greatly shaken if not entirely overruled by subsequent decisions, which it would be desirable perhaps to see in an equally accessible form.

We have only to remark of this work, that the task of the editor, (Mr. Perkins, of Cincinnati), has been performed in a very creditable manner; and, that in our opinion it will prove an extremely acceptable present to the public, in general, as well as to the profession,-to the statesman no less than the lawyer. The typographical execution of the volume does honor to the publishers. We have rarely seen a law book or any other, of domestic manufacture, so beautifully and correctly printed.

L. S. C.

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JURISPRUDENCE.

I. DIGEST OF ENGLISH CASES.

COMMON LAW.

Selections from 4 Bingham's New Cases, Part 4; 6 Dowling's P. C. Parts 4 and 5; 2 Nevile and Perry, Part 4; 3 Nevile and Perry, Part 4; 4 Meeson and Welsby, Part 2; 7 Adolphus and Ellis, Parts 1 and 2.

ACTION ON THE CASE. (Case or trespass-Action for injury to reversion.) A party who has demised a house without exception of mines, may sue in case for an injury occasioned to the house by a stranger in excavating coal; although it was not clear whether the injury resulted from excavation under the house, or under an adjoining house in the plaintiff's occupation. (Com. Dig. Grant, E. 3.) Raine v. Alderson, 4 Bing. N. C. 702.

ARREST. (Discharge from, on ground of privilege.) A defendant who is arrested while privileged eundo, &c. will be discharged as to that case only, and not also as to any detainers lodged against him, unless notice of the motion has been given to the parties concerned. Sharplin v. Hunter, 6 D. P. C. 632.

So in the case of a discharge from arrest on the ground of an irregularity to which the sheriff is no party. (9 Bing. 566.) Ex parte Cogg, 5 Scott, 715. COMPUTATION OF TIME. The month to elapse after the delivery of an attorney's bill, before he can commence an action for its amount, under the 2 Geo. 2, c. 23, s. 23, must consist of twenty-eight days, exclusively both of the day of

delivering the bill and of the day of commencing the action. (15 Ves. 248; 9 B. & C. 134, 603; 3 M. & W. 473.) Blunt v. Heslop, 3 N. & P. 554. CONTRACT. (Performance of, not presumed from lapse of time.) The lapse of twenty years from the time of making a contract to be performed in future, is not of itself evidence of a new contract averred to have been performed, and pleaded as an accord and satisfaction of the original contract. Kirkman v. Siboni (in error), 4 M. & W. 339. CONTRACT OF SALE. (When complete-Acceptance by purchaser.) In assumpsit for a mare sold and delivered, to which the defendant pleaded non assumpsit, it appeared that the defendant, having seen and ridden the mare, wrote to the plaintiff, "I will take the mare at twenty guineas, of course warranted; and as she lays out, turn her out my mare." The plaintiff agreed to sell her for twenty guineas. The defendant subsequently wrote again to him-"My son will be at the World's End (a public house) on Monday, when he will take the mare and pay you send any body with a receipt, and the money shall be paid; only say in the receipt, sound and quiet in harness." The plaintiff wrote in reply, "She is warranted sound, and quiet in double harness: I never put her in single harness." The mare was brought to the World's End on the Monday, and the defendant's son took her away without paying the price, and without any receipt or warranty. The defendant kept her two days, and then returned her as being unsound. The learned judge stated to the jury that the question was whether the defendant had accepted the mare, and directed them to find for the defendant if they thought he had returned her within a reasonable time; and desired them also to say, whether the son had authority to take her without the warranty. The jury found that the defendant did not accept the mare, and that the son had not authority to take her away: Held, on a motion to enter a verdict for the plaintiff, that there was no complete contract in writing between the parties; that therefore the direction of the learned judge was right; that the defendant was not bound

by the act of the son in bringing home the mare, inasmuch as he thereby exceeded his authority as agent; and consequently that the plaintiff was not entitled to recover. Jordan v. Nor

ton, 4 M. & W. 155. COVENANT. (For quiet enjoyment.) The generality of the covenant implied in law from the word demise is restrained by an express covenant for quiet enjoyment. (4 Rep. 806; 4 Taunt. 329.) It is therefore no breach of a covenant for quiet enjoyment, that the lessor had not power to demise. Line v. Stephenson, 4 Bing. N. C. 678.

DEVISE. (By what words tenancy in common created.) A testator devised his real estates to his two nieces," equally between them, to take as joint tenants, and their several and respective heirs and assigns for ever:"-Held, that they took estates as joint tenants for life, with several inheritances on the death of the survivor. (Holt, 370; 2 P. Wms. 280; 1 Vent. 216; Salk. 226.) Doe d. Littlewood v. Green, 4 M. & W. 229. ESCAPE. The permitting a defendant in the custody of the sheriff, against whom a ca. sa. has been lodged, to go out of prison, is a voluntary escape, although the act of the sheriff was occasioned by mistake. The sheriff, therefore, has no right to retake such defendant; and if he does, the caption being a nullity, lapse of time will not be any objection to the defendant's discharge. (Cas. temp. Hardw. 310; 1 Sid. 330; Barnes, 373; 2 Wils. 294; 5 T. R. 25.) Filewood v. Clement, 6 D. P. C. 508.

EVIDENCE. (Secondary evidence-Proof by attesting witness.) Where an instrument is proved by a copy, as secondary evidence, and it thence appears that the original was attested by a subscribing witness, it is nevertheless unnecessary to call him. (8 Taunt. 450.) Poole v. Warren, 3 N. & P. 693. FOREIGN ATTACHMENT. (Recovery by, when a bar to subsequent against garnishee-Pleading-Estoppel.) To a declaration for money had and received, the defendant pleaded a recovery by foreign attachment at the suit of a creditor of the plaintiff, and that the creditor had execution of the sum recov