Page images
PDF
EPUB
[ocr errors]

stances of the case, it results, that the lien was not intended to be reserved, as by taking other real or personal security; and in page 152, it is said "that the weight of authority, and the better opinion is, that taking a note, bond or covenant, from the vendor for the payment of the money, is not of itself an act of waiver of the lien." The doctrine above stated is more fully examined by Mr. Justice Story, in Gilman v. Brown.' It is there said, that, "it seems to be established, that prima facie the purchase money is a lien on the land; and it lies on the purchaser to show, that the vendor agreed to waive it; and a receipt for the purchase money endorsed upon the conveyance, is not sufficient to repel this presumption of law." And in Baily v. Greenleaf,' chief justice Marshall says, "that a vendor who has taken no other security for the purchase money, retains a lien for it on the land as against the vendor or his heirs, seems to be well settled by the English decisions."

It is not supposed that this is, or ever was, the law in Massachusetts or Maine. On the contrary, it is stated in the case of Gilman v. Brown, above cited, that "nothing can be clearer, than, that by the law of Massachusetts, no lien in any case whatever exists upon the land for the purchase money." But the question in Steele v. Adams was not whether by the law of that state a lien existed on the land, but whether the vendor should be permitted to prove, that the consideration had not been paid. And the case was decided, not upon the authority of American but of the English decisions; and a dictum is recited from Dyer, 169, "that if one, in consideration of a thousand pounds, bargain and sell land, and rei veritate no such sum is paid, and yet it is stated by the deed to be so and a receipt of the money; it seems the bargainor is estopped by this to say the contrary." This case, the learned chief justice who delivered

1 1 Mason's R. 213.

27 Wheaton's R. 46.

that opinion says, "precisely resembles the case at bar." It is apprehended, however, that there was not that resemblance supposed, that the words "and a receipt of the money," must have been intended a receipt of the money, endorsed on the back of the deed; a practice generally adopted in England, and referred to in the case of Gilman v. Brown; although it is there stated to be of itself insufficient to repel the presumption of a lien retained. Now in the case of Steele v. Adams, there was no receipt endorsed on the back of the deed. And the question was not, whether the acknowledgment of the receipt of the consideration was prima facie evidence of payment, but whether it was absolutely conclusive on the vendor. It is to be presumed, that if a similar case should again occur in that state, the court may revise that opinion, and, thus do away with some of the supposed odium attached to the idea of estoppel.

The high prerogative which the judiciary department is called on to exercise, and the important influence it is calculated to maintain over the interests of the whole community, render it in all respects desirable that the decisions of our courts should be in accordance with their responsibility. For we fully subscribe to the opinion of Mr. De Tocqueville, that the stability of our political institutions, and the durability of our government, in its present form, very much depend upon the influence exerted upon them by the bench and the bar; that that influence, to be salutary and permanent, must be grounded upon their character for probity, industry, talents and learning; and that although there are opposing causes, tending to counteract this beneficial influence, we are inclined to adopt the opinion of Mr. Guizot, that the progress of improvement in this respect, as well as others, although occasionally and materially retarded, is on the whole onward, to an extent unlimited, short of perfection.

F. A.

ART. VI.-REPORTS AND REPORTERS.

[From the Monthly Law Magazine for October 1840.]

greatest advan

Nobody within

THE duties and labors of a reporter are appreciated for the most part, even by those who reap the tage from his exertions, at a very low rate. the pale of the legal profession doubts that he is a useful person; but that is the highest honor that is generally awarded to him—he is looked upon as a sort of mechanicor perhaps that is even too high a title, for it is supposed to imply something like the possession of genius and sciencelet us rather say, (adopting these ideas of others) a mere operative, a legal mason or tailor, who works up the materials supplied by others in order to meet the demands of the intelligent public. He is no doubt a very useful person, indispensable in fact to the existence of society, and society gratefully admits in the abstract, that they are under vast obligations to him, but nobody (that is of the class of thinkers we are speaking of) ever dreams of looking upon him in any other light; and as to be useful is not the way to be distinguished, he does not accordingly rank very high in public estimation. It is admitted that he goes through a great deal of drudgery, but it is taken for granted that he is amply repaid for it by his publisher, if indeed the matter is ever thought about at all. He is ranked pretty much upon a level with a digest maker; though as an obiter dictum we beg to say we think that class of writers very much underrated; we are not now alluding to such a work as Comyns's Digest, in the compilation of which great learning, research and judgment are, by universal admission, brought to bear; but we speak of such works as Harrison's Index, or Jeremy's Digest the merest compilations of marginal notes, and we avow that we think the arranger of such a work, always supposing it to be well performed, deserves great credit for

his pains. For, as Dr. Johnson might have said, to render the services of others more available, to collect widely scattered materials, and arrange them in lucid order, and from a rude and indigested mass to form a harmonious and symmetrical fabric, are surely objects not wholly unworthy of a mind even of the higher order.

But to return to our reporter. He, at any rate, it may be said, does not require any but the humblest capacity to perform his functions. A mere transcriber of the opinions of others, he occupies the very lowest grade in the scale of professional utility-what the copyist is to the musician, or the printer to the author, he is to "the reverend judges and sages of the law" (as Lord Coke delights to call the learned administrators of justice); without his aid, indeed, much that is valuable would be lost to the world, but the aid is all that he contributes; every thing original, both of thought and execution, that is to be found in his labors, is the emanation of other minds: in perusing a reported case, it is the counsel who argue, and the judges who decide, who are present to one's imagination:whoever bestows a thought upon the humble reporter? Their names may indeed be familiar in our mouths as household words, but this familiarity is too usually attended by its well-known offspring. It is true, indeed, that your reporter, in this way, enjoys a sort of fame, which per ora volat, in more than the usual manner-but his fame is merely nominal; his name is his immortal part. Indeed, our abstract idea of a reporter, is rather that of a book than of a man; who ever thinks of Bingham, for example, as a human being? there he is, alive and well, and efficiently discharging his duties as a police magistrate, but he never is presented to our mind's eye in that character-if the name is mentioned, an

1 We trust that the common sense of the reader will not allow him to fall into any misapprehension of the real meaning of this somewhat too broad satire. Ed. M. L. M.

octavo volume, naturally of a pale complexion, but sallowed and embrowned by time and use, presents itself to the imagination—indeed, the word "Bingham" by itself, without a numeral affixed to it, such as "2" or "8 Bingham," is almost an incomplete idea. We might almost doubt whether the gentleman himself, with whose good name we may perhaps be supposed to be making rather too free, has not from long and frequent use, so accustomed his own mind to regard his identity in this light, that probably if a friend should say to him, "Bingham, I want you," he would reply, "what volume?" or "old or new series?"

Making allowances, however, for a somewhat transAtlantic vein of exaggeration into which we have fallen, we think it will not be denied that there is a great deal of substantial truth in what we have advanced, and that a reporter's labors do not generally obtain for him any very large share of consideration. We own, ourselves, that we think they are entitled to a much larger portion, and that the reporter himself is hardly and unjustly dealt with by those who consider him only in the light of a useful workman; and we shall endeavor briefly to point out the nature and degree of the capabilities, which, in our humble opinion, are requisite for the due performance of his task.

Of the amount of labor required it is not necessary to speak, since it will be allowed on all hands that a reporter's life is about as hard working a one as any literary drudge's can well be but we would observe that it requires no common powers of abstraction and application to be able, amid the bustle and noise of a crowded court, for six and sometimes eight hours a day,' to attend to arguments and judg

[ocr errors]

1 The usual hours of sitting in term time are from ten A. M. to four P. M., but the queen's bench has, for several years, been in the habit of protracting its sitting till five, and sometimes an hour later: the object has been a praiseworthy desire to keep down the alarming arrear of business which exists in that court; but whether this object is best attained by such a system may be

[blocks in formation]
« ՆախորդըՇարունակել »