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extent at least of the purchase money that then remains unpaid. 1b. WASTE. (Action for in Pennsylvania lies by trustee.) An equitable tenant for life is liable to an action of waste at the suit of the trustee-in-fee of the legal estate.

In such suit, the plaintiff need not name himself trustee. Woodman v. Good, 6 Watts & Serg. 169.

WILL. (When residuary legatee will take lapsed legacies, and when not.) A bequest in a will, directing the executors to emancipate slaves of the testator, is void, because in opposition to our state policy.

The general residuary legatee is entitled to take, in preference to the next of kin, whatever may, by lapse, invalid disposition, or other casualty, fall into the residue, after the date of the will.

Where it is plain, from the language of the will, that testator intended to constitute certain persons residuary legatees, not of his estate, but only of the proceeds of property directed to be sold, and, in part appropriated to other objects, then, whatever may by lapse, invalid disposition, &c., fall into the residue, after the date of the will, will go to the next of kin. Luckey et al. v. Dykes et al., 2 Smedes & Marshall 60.

226

CRITICAL NOTICES.

1. Reports of Cases Argued and Adjudged in the Supreme Court of the United States, January Term, 1843. By BENJAMIN C. HOWARD, Counsellor at Law, and Reporter of the Decisions of the Supreme Court of the United States. Vol. 1. Containing in an Appendix, a List of all the Cases decided in that Court from the earliest Reports to the present time. Philadelphia: T. & J. W. Johnson, Law Booksellers, 1843.

2. Reports of Cases Argued and Adjudged in the Supreme Court of the United States, January Term, 1844. By BENJAMIN C. HOWARD, Counsellor at Law, and Reporter of the Decisions of the Supreme Court of the United States. Vol. 2. Containing in an Appendix the opinion of the Hon. CHIEF JUSTIce Taney, in the case of The Bank of the United States v. The United States. Philadelphia: T. & J. W. Johnson, Law Booksellers, 1844.

We purposely omitted any critical notice of the first volume of Mr. Howard's S. C. Reports. The examination of it satisfied us that while that gentleman possessed all the necessary qualifications of a good reporter, it did not present a fair specimen of them. The cases themselves were few and meagre in general interest. A volume could not have been made without the rules of equity practice, and the list of cases-at least a volume with the cases reported after Mr. Howard's manner. The unfortunate and absurd epistle of Mr. justice Catron correcting the errors of the press, which after all were very trifling, in his opinions as printed in Peters, made a bad impression, though we know not that it was furnished at the request

of the reporter, and perhaps therefore not his fault. But the advertisement in which he tenders his professional services in the argument of cases in the supreme court was his own, and though it is true, that he but followed the example of his immediate predecessor, who commenced his career as reporter with the same announcement, unproductive of any great results as it would seem, yet we cannot consider that as any authority or excuse for a course so undignified and unprofessional. It will do for a man seeking mere attorney's or scrivener's business, to be publishing his advertisements to attract customers, but not for one asking to be intrusted with the advocacy or defence of important legal and constitutional principles in the highest court of the union.

It was not in the power of the reporter from the nature of the cases in the first volume, entirely to counteract the unfavourable impression thus produced.

The second volume has decidedly improved. Many of the cases are important, and they are carefully and well reported. What Mr. Howard seems yet somewhat deficient in, is facility in taking down the argument of counsel, or rather perhaps of presenting their main points and authorities in a condensed analysis. This will come with time and experience in reporting. His statement of the case is generally succinct and clear, not putting in the whole of a paper book, for the double purpose of saving himself the labour of studying and stating the case, and of swelling the bulk of the volume.

In general too, the syllabus is a brief, clearly stated note of the legal principle decided in the case. We dissent from the position gravely put forth by Mr. Peters, that the syllabus ought, in effect, to be an abridged report of the case—a statement of the facts, and an account of the argument of the court, with copious extracts in their ipsissimis verbis. This serves the same double purpose above alluded to, saving the reporter study and labour, and adding to the size, cost, and profit of the book; but for the student and advocate it is only embarrassing, and the case might as well be without any syllabus at all. It is needless to ask the reader to compare Mr. Peters' reports, with almost any that can be named, English or American, to see the decided advantage which the short annunciation of the principle at the head or side of the case has, in practical usefulness, over the long involved headings which his theory requires.

We are not sure that Mr. Howard had not Mr. Peters in his eye when he made the syllabus to the case of Buchannon et al. v. Upshaw. Vol. 1. p. 56.

"There were two titles to a tract of land, the senior title held by Upshaw, and the junior by Buckner, both derived from the same person who had sold to both.

"Buckner soon afterwards sold to Buchannon, who paid Buckner and took possession.

"Upshaw subsequently agreed to ratify the sale from the original holder to Buckner, upon receiving an assignment of Buckner's bond for the purchase money, not yet due, and other securities.

"The bond not being paid, Upshaw brought an ejectment and obtained a judgment. Buckner's assignees filed a bill to obtain a perpetual injunction.

"There is a privity of contract between them and Upshaw, and a perpetual injunction will be granted upon their fulfilling the obliga tions of Buckner, their assignor; it was not their duty, under the circumstances, to have tendered the money to Upshaw.

"A power in Buckner to resell, and a sale made under that power, prior to Upshaw's giving his assent to the sale from the original holder to Buckner himself, did not extinguish the equitable right of Upshaw to receive the purchase money, or to proceed against the land.

"Upshaw's right not destroyed by lapse of time, because he had brought suit on Buckner's bond and the other securities, and was not in a condition for a long time to make a valid title.

"Upshaw, being held bound by his assent to the sale to Buckner, is entitled to the advantage which that paper gave him as to the application of part of the purchase money to one purchase in preference to another.

"Interest must begin to run from the time when Upshaw asserted his claim to the land, and what is due to Upshaw must be made up by the present holders of the land, each one contributing in proportion to the price which he paid to Buckner."

We are the more confirmed in our idea that this is a piece of irony, from finding a very good syllabus of the same case, given in Mr. Howard's own index, (p. 333.)

"If the owner of land recognises a sale of it, although made by a person who had no authority to sell, there is a privity of contract

between the owner and the purchaser, which a court of equity will

enforce.

"But the owner is entitled to all the advantages of the sale thus recognised.

"A perpetual injunction will be decreed in such case, to prohibit the owner of the legal title from prosecuting his ejectment." (Index, p. 333.)

"In the settlement of an account between the owner of land and the holder, interest begins to run against the latter from the time when the owner asserted his title to the land. (Ib. p. 337.)

"The legal right of an owner of land, although he has recognised a sale of it, is not destroyed by lapse of time, or his right to bring an ejectment barred, provided he has, in the meantime, brought suit upon the securities which he took when he recognised the sale." (Ib. p. 338.)

3.-Report of the Case of Kittredge v. Emerson, decided in the Superior Court of Judicature, held in the first Judicial District of New Hampshire. July Term, 1844. Concord. Published by Asa M'Farland.

1844.

BESIDES some points of practice and pleading of local interest merely, the case, the report of which has thus been separately published in anticipation of the regular volume of reports, at the request of the bar, decides the following important points:

"That an attachment of property on mesne process bona fide made, before any act of bankruptcy or petition by the debtor, is a lien or security upon property, valid by the laws of New Hampshire; and thus within the proviso of the second section of the bankrupt act of August 19, 1841.

"The attachment being saved by the proviso, the means of making it effectual are also saved; and the certificate of the discharge of the bankrupt cannot when pleaded, operate as an absolute bar to the farther maintenance of the action. If so pleaded, the plaintiff may reply the existence of the attachment; in which case a special judg. ment will be entered, and execution issued against the property attached."

We prefer laying before our readers the views of chief justice 20

VOL. IV.

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