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DESTY's FEDERAL PROCEDURE. A manual of practice in the courts of

the United States, embracing the provisions of the constitution, the revised statutes and amendments thereto relating to federal courts; together with the rules promulgated by the supreme court of the United States. With notes of decisions. By Robert Desty, attorney at law. Sixth edition, revised. Sumner Whitney & Co.,

San Francisco. 1884. HAWEB ON PARTIES TO ACTIONS. The law respecting parties to actions,

legal and equitable. By Horace Hawes, counselor at law. Sumner

Whitney & Co., San Francisco, 1884. BOONE ON REAL PROPERTY. A manual of the law of real property, including

also general rules of law relating to the purchase and sale of real property, or law of vendor and purchaser, as determined by the leading courts of England and the United States. By Charles T. Boone, LL. B., author of "Law of Corporations,” etc. Sumner,

Whitney & Co., San Francisco. 1883. STEWART ON MARRIAGE AND DIVORCE. The law of marriage and divorce,

as established in England and the United States. By David Stewart, of the Baltimore bar; joint author of Stewart & Carey's “ Law of Husband and Wife in Maryland." Sumner Whitney &

Co., San Francisco. 1884. The foregoing four books are the latest additions which Sumner Whitney & Co. have made to their Practitioner's Series. Besides the works mentioned above, this series now includes Boone's Law of Corporations; Desty's American Criminal Law; Desty's Removal of Causes; Desty's Federal Constitution; Lubi's Equity Pleading; Barber's Principles of Law of Insurance; Desty's Shipping and Admiralty; Desty's Commerce and Navigation. The publishers have also in press, or in active preparation, the following: Boone on Mortgages; Stewart on Domestic Relations; Reardon's Dicey on Domicile; Hutchinson on Negotiable Instruments; Newmark on Sales; Wade on Trust; Baylies on Damages, and Campbell on Agency. The publishers announce their intention to continue this series until every important title of the law has been covered.

The value of this series to the practicing lawyer can hardly be overestimated. The books of which it is composed, while not pretending to be exhaustive treatises, claim to be, and are, succinct statements of the existing law on the subjects of which they respectively treat. They are all written on the same general plan, the aim of their authors being, as stated by Mr. Boone in has preface to the Law of Corporations, " to discard all obsolete law on the one hand, and to avoid all disquisitions as to what the law ought to be on the other.” As a result of this plan it has been found possible to keep the size of the volumes within reasonable limits.

The foregoing remarks are applicable to all of the works included within this series. Of Mr. Desty's Federal Procedure a few more words of commendation are needed.

The first edition of this book appeared in 1875. It met with deserved favor from the profession, and five editions were rapidly exhausted. These facts are the strongest possible evidence of the merits and necessity of Mr. Desty's work, and render an extended criticism thereof unnecessary. It need only be said of the present edition that it is a great improvement on its predecessors. The form of the work has been recast, and it has been increased in size from four hundred and forty-seven to nine hundred and seventy pages. This increase is mainly due to the great number of citations added. Statutes subsequent to the revised statutes, and relating to the subject matter of the book, are set forth in extenso in an appendix. The publishers promise that all future amendments to statutes and rules will be printed in the same style and presented to purchasers who send in their names for such purpose. The index covers a space of about ninety pages, and is a model for thoroughness and convenience of reference.

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The president has appointed Judge Brewer, of the supreme court of Kansas, to fill the vacancy in the eighth circuit, caused by the resignation of Judge McCrary. The appointment has been approved by the profession in general, who have long been familiar with the judicial ability of Judge Brewer. It was a particularly happy one, in so far as no political or personal interest appears to have influenced the appointment. Judge Brewer is forty-six years of age. He was born in Asia Minor in 1836. He removed to the west in 1858. After serving as United States commissioner for some time, he was elected judge of probate in 1862. In 1864 he was elected to the district court for the first judicial district of his state, and in 1868 prosecuting attorney for his county. In 1870 he was elevated to the supreme court of the state, where he has since remained, having been re-elected in 1876 and 1882. He is a nephew of Judge Field of the United States supreme court.

The supreme court of the United States has just decided an important case of interest to the large number of Americans who visiti Europe, and in returning bring with them a replenished wardrobe, which they desire to have admitted free of duty. The facts of the case and the rulings of the court are as follows: William Astor, plaintiff in error, a citizen of the United States, arrived from a visit to Europe, late in September, with his family, by vessel, and brought with him wearing apparel bought there for his and their use, to be worn here during the season then approaching, not excessive in quantity for persons of their means, habits and station in life, and their ordinary outfit for winter. A part of the articles had not been worn, and duties were exacted on all these articles. This court holds that under section 2,505 of the revised statutes, exempting from duty “wearing apparel in actual use, and other personal effects not merchandise,” the proper rule to be applied was to exempt from duty such articles as fulfilled the following conditions: First, wearing apparel owned by the passenger and in condition to be worn at once without further manufacture; second, brought with him as a passenger, and intended for the use or wear of himself or his family who accompanied him as passengers, and not for sale, or purchased or imported for other persons, or to be given away; third, suitable for the season of the year which was immediately approaching the time of arrival, and not exceeding in quantity, quality, or value what the passenger was in the habit of ordinarily providing for himself and his family at that time and keeping on hand for his and their reasonable wants, in view of their means, habits, and station in life, even though such articles had not been actually worn. The judgment of the circuit court was reversed, and the cause remanded with instructions to award a new trial.


In Ex-parte Crow Dog, U. S. Sup. Ct., October and December, 1883: 109 U. S. (Davis) 556, the supreme court of the United States applied the rules that in the interpretation of statutes, clauses which may have been repealed may still be considered in construing the provisions that remain in force (citing Bramwell, L. J., in Attorney-General v. Lamplough, L. R., 3 Ex. D. 223-227; Hardcastle on Statutory Law, 217; Bank for Savings v. Collector, 3 Wall. 495--513; Commonwealth v. Bailey, 13 Allen, 541; Bates v. Clark, 95 U. S. 204), and that implied repeals are not favored. The implication must be necessary.

There must be a positive repugnancy between the provisions of the new laws and those of the old (citing Wood v. The United States, 16 Pet. 342; Davies v. Fairbairn, 3 How. 636; United States v. Tynen, 11 Wall. 88; State v. Stoll, 17 Wall. 425).

The rule is, generalia specialibus non derogant. “The general principle to be applied,” said Bovil, C. J, in Thorpe v. Adams, L. R., 6 C. P. 135, “ to the construction of acts of parliament is that a general act is not to be construed to repeal a previous particular act unless there is some express reference to the previous legislation on the subject, or unless there is a necessary inconsistency in the two acts standing together.” * And the reason is,” said Wood, V. C., in Fitzgerald v. Champenys, 30 L. J., N. S., Eq. 782; 2 Johns. and Hem. 31–54, " that the legislature having had its attention directed to a special subject, and having observed all the circumstances of the case and provided for them, does not intend by a general enactment afterwards to derogate from its own act when it makes no special mention of its intention to do so.”

A strong case of the application of the latter rule was made by the same court in Townesend v. Little, U. S. Sup. Ct., Oct. and Dec., 1883: 109 U. S. (Davis), 504, where the territorial act under which a deed of the property was made to A by the mayor, directed that “ deeds of conveyance of the same shall be executed by the mayor of the city or town, under seal of the corporation.” A general act of the territory at the time the deed was made required deeds to be witnessed. The deed to A bore the corporate seal, as required by the special act, but was not witnessed: Held, that the special act controlled the general act, and that the deed was good: Citing Pease v. Whitney, 5 Mass. 380; Nichols v. Bertram, 3 Pick. 341; The State ex rel. Fosdick v. Perrysburg, 14 Ohio St. 472; Lowdon, &c. Railway v. Wandsworth Board of Works, Law Rep. 8 C. P. 185; Bishop on the Written Laws, sec. 112a).


WHOLE No. 18.

May 1, 1884.

VOL. II. No. 10.


(Continued.) RIPARIAN PROPRIETORS AND RIPARIAN RIGHTS ON PRIVATE STREAMS. That it is so, the authorities bear abundant witness. We do not wish to be understood as saying that there is such an absolute property in the water that the whole stream may be destroyed by a riparian proprietor, so that others below him will be deprived of it; but that it is an incident of his land to the extent that he has the right to have it continue to flow in its natural course, subject to such changes only as may be occasioned by such use of it as the law allows the various proprietors to make, as it passes along, and which will be hereafter more fully explained. In this sense only is the right to be understood, when spoken of in the authorities about to be quoted." The opinion then quotes numerous authorities, and it may not be inappropriate to copy those which are cited from American decisions. After quoting the general definitions given by Lord Coke and by Mr. Angell, the Chief Justice proceeds (p. 266): “The supreme court of Ohio says: « The uses of the waters of private streams belong to the owners of the land over which they flow. They are as much individual property as the stones scattered over the soil.' Chancellor Kent says: A right to a stream of water is as. sacred as a right to the soil over which it flows. It is a part of the freehold of which no man can be disseized but by the lawful judgment of his peers, or by due process of law. It is said in the note to ex parte Jennings: The general distinction deemed of so much excellence and importance by these learned judges, and which at this day no lawyer will hazard his reputation by controverting, is that rivers not navigable, that is fresh water rivers of what kind soever, do of common right belong to the owners of the soil adjacent, to the extent of their land in length; but that rivers where the tide ebbs and flows, belong of common right to the state.' In Wadsworth v. Tillotson,' speaking of the rights to a water course, the supreme court says: "This right is not an easement or appurtenance, but is inseparably annexed to the soil, and is parcel of the land itself.' Chief Justice Shaw says: “The right to flowing water 110 Ohio 297.

9 Cow. 543. a Gardner v. Village of Newburgh, 2 415 Conn. 372. Johns Ch. 166.

5 Elliott v. Fitchburgh R. R., 10 Cush. 193. No. 18.-1.



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