and could, at least, be used as evidence of the breach of a covenant against all incumbrances, made by the heir at law of one of the tenants in common, in a deed conveying one of the lots which had afterwards been set off to him in severalty: Greene vs. Creighton.

Damages recoverable of a covenantor against incumbrances on account of the existence of such an easement will not include, although set out and claimed in the declaration, loss arising from the unfitness of the lot, be cause of the easement, for a particular use in connection with another estate, for which, without communication with the covenantor and without his knowledge, the covenantee purchased it: nor, any sum of money laid out by the covenantee upon the lot to compensate a tenant, whose contract of hiring was made, in ignorance of the easement, long subsequent to the purchase; such damages not arising in the usual course of things from the breach of the covenant, nor such as might reasonably be supposed to have been in the contemplation of the parties at the time of making the covenant, as consequent upon the breach of it: Id.

Joint Debtors-Part Payment by one, for his Discharge, Effect of, when made in another State.-A part payment made by one joint debtor, not in satisfaction of the joint debt, but merely for his personal discharge therefrom, will not, in the absence of technical difficulties connected with the remedy, operate as a discharge of the other: Winslow vs. Brown.

Where a note is sued here, and a contract and part payment discharging one of the joint promissors were made in Massachusetts by and between parties resident there, such contract and payment are to be judged, as to their legal effect, by the law of that state; and hence, the part payment will operate, as at common law, to discharge only so much of the debt as it paid, and not the part of the joint debtor discharged, as provided in ch 114, sect. 2, of the Revised Statutes of Rhode Island: Id.

NOTICES OF NEW BOOKS.

STORY'S COMMENTARIES, IN NINE VOLUMES. COMPRISING BAILMENTS; AGENCY ; EQUITY JURISPRUDENCE; EQUITY PLEADINGS; BILLS OF EXCHANGE; PROMISSORY NOTES, THE CONFLICT OF LAWS; AND THE LAW OF PARTNERSHIP. With extensive Additions, bringing the References to Cases down to the Present Time. We beg the indulgence of our readers, in calling attention, at this late day, to the standard law publications of the lamented and admired professor, jurist, and judge, whose name stands at the head of this article

1

We have done this, not because we apprehend that the fame or the name of the distinguished author stands in any need of commendation at our hands; but chiefly because we are all too much prone to regard the works of an author some time deceased, as probably not up to the present de. mands of the profession. Mr. Justice STORY, while in life, stood probably higher in the general estimation, at home and abroad, as a correct and able commentator and teacher in the law, in its various departments, than any other American. And his books were for the most part certainly got up with great labor and research, and were entirely more able and thorough than any others in the same department. And at the present moment we find these Commentaries more extensively quoted by the English bench and bar, and especially those upon Equity Jurisprudence, Conflict of Laws, Agency, and Bailments, than any other American books, unless it be Kent's Commentaries probably. And perhaps it is not going too far to say that Judge STORY'S books are oftener quoted as authority in the English Courts, than those of any other law writer, English or American. And this high reputation of STORY's books in England cannot be referred to any accidental cause, but rests solely upon their intrinsic merits.

We know that in the nearly twenty years which have elapsed since the decease of the author, other candidates for popular favor have come before the public, and some in the same departments. But upon the subject of Equity Jurisprudence, and upon the other subjects, so far as we have had occasion to examine them, none can be regarded as superior to the Commentaries of STORY.

We are not unmindful of the fact, that text books upon these leading topics in the law require very thorough revision and considerable additions to keep them fully up to the advancing progress and the unceasing demands of so progressive a study as that of jurisprudence. But we have reason to understand that the proprietor of the copyrights is now sparing no pains and no expense to keep these books fully up to all the reasonable demands of the profession. And although, in some respects, an editor cannot prune and remodel a book with the same freedom as the author, he will nevertheless have some advantages even above the author, in discovering any omissions or defects; and will generally be more thorough in bringing forward all recent qualifications of the principles of the original text, than the author.

We believe these books may now justly be regarded as fully equal, and in some respects superior, to any others in the same field.

THE

AMERICAN LAW REGISTER.

MAY, 1863.

ON THE STUDY OF THE CIVIL LAW.

Our Anglo-Saxon forefathers, as well as their Roman conquerors, placed small estimation upon personal as contradistinguished from real or landed estate. The proprietorship of the latter in many instances secured nobility, in all instances gentility, and that weight of character in society which an immediate personal voice in the legislation of a country never fails to give. Personal pro

perty was but of little account. The most valuable of that which existed the gold and silver plate, the curiously wrought and splendid armor and accoutrements of the warrior as well as the costly wardrobes of the kings and nobles, were most frequently, like the persons of their numerous slaves, heirlooms, annexed to the soil, partaking of its character, subject to the legal principles applicable to it, and in effect therefore a part of the landed estate of the proprietor, held by the same feudal tenure, under the burthens of the same incidents and services. There was even greater encouragement given to trade and industry among the Saxons than under the Normans who succeeded them. It was a provision of the Saxon laws, that a merchant who had crossed the sea three times in his own craft, might become a thane or noble. (385)

VOL. XI.-25

But as late as King Henry III., the provision studiously inserted in Magna Charta, c. xxx., in favor of foreign merchants, while it has' excited the admiration of Montesquieu that the English should have inserted a provision on the subject of foreign commerce in the Charter of their national liberties, shows, however, that merchants did not occupy that high place, nor commerce itself that regard, which would place them above the necessity of such a regulation. Perhaps no more striking illustration of the slowness of progress on this subject in the accumulations and corresponding legislation of our forefathers can be found than in the fact, that though an act of limitation (that statute of repose absolutely necessary to give security to property in every advanced state of society) was passed in England in respect to real estate in the year 1270, yet no limitation to personal actions was provided til the year 1623, when the statute 21 Jac. 1, c. 10, was enacted. Even then the exception of merchants' accounts was introduced; intended no doubt for the encouragement of honest and fair commerce; which exception still stands, and has been copied in our American statutes, but which, with all other exceptions in that statute, should be swept away, leaving the general principle, that the right to sue should be the sole criterion to determine the commencement and running of the bar.

While all the principles in regard to realty look to the feudal system as their great fountain and source, it is certain that in those cases which related to the enforcement of contracts and the settlement of the personal estate of decedents, the civil law was considered as the rule of action, as shedding at all events that light which would alone guide the judicial mind in all questions not expressly provided for in the written statutes. In the ecclesiastical courts, presided over altogether by men educated in the schools of the civil law, and very commonly too in foreign universities, all questions of guardianship, marriage, divorce, testaments, legacies, and administrations, were most likely to arise; and in the strictly secular courts, by the earliest constitutions, the Bishop sat in judgment with the Count or Ealderman, in the shire-mote and even in the king's superior courts. We have standing evidence

of the fact that the bench and all the inferior offices were filled by the clergy in the names of the English terms, the dresses of the judges, and the denomination of clerks given to the scribes of the court. Nay, that even the profession of the law was originally made up of those, who either at the time or originally for the most part had taken orders, we can see in the common appellation given to all outside of the bar as "laymen."

It is a very remarkable fact, that from the reign of Claudius to that of Honorius (a period of about three hundred and sixty years), the judgment seats of England had been filled by some of the most eminent of those lawyers (Papinian, Paulus, and Ulpian), whose opinions were afterwards incorporated into the Justinian compilation. But all germs of such jurisprudence would have perished, with every other trace of civilization, under the rude incursions of the Saxons and Danes, had not the tribunals of the clergy afforded them shelter from the storm. 1 Phill. Inter. Law, Pref. xvi.

We must not be surprised, therefore, to find the civil law taking deep root in our system, to be able to trace its marked footsteps in all those departments of our jurisprudence which are of modern growth. Especially in that part which may be termed mercantile law, that part which relates to the trade of merchandise, foreign or domestic, which includes the great and still growing heads of carriage by land and water, agency, partnership, negotiable paper, shipping, insurance, and debtor and creditor, we may look for abundant traces of the civil law. Look at a well-selected modern law library. Look at the shelves, which are filled with the books specially devoted to these topics, as compared with those which treat of lands and crimes, the two great subjects of the ancient common law. Look at the space in books of Practice, Pleading, Nisi Prius, and Evidence, occupied with the consideration of actions and remedies relating to these topics. Look at the proportion of cases in a modern report book. Consider that all this has been the growth of little more than one century, while its rivals date backwards upwards of eight.

In regard indeed to what is strictly maritime, modern legisla