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These expressions of the judge, though very properly introduced by him in stating the grounds of his decision, are yet not the decision itself, not what we seek in the summary. Nor could one even conjecture with great confidence from ibese paragraphs what was the question in the case or what the decision of the court was. For there would have been no inconsistency in these expressions with a directly opposite decision; as the judge after these two sentences might have said, “But notwithstanding all this we feel ourselves constrained, by the weight of authority, 10 decide that a protest cannot be evidence in a court of justice.'

The same summary, which comprises a whole page of disjointed observations, torn rudely from the judge's opinion, yet fails to take any sort of notice of several points actually decided by the court. It is needless for us to repeat them here, we only refer the reader to the case itself.

The case of Buckner v. Finley, p. 586, turned on the construction of a clause in the judiciary act. This statute (St. 1789, c. 20) in the eleventh section provides that no District or Circuit Court shall have cognizance of any suit to recover the contents of any promissory note or other chose in action, in favor of an assignee; unless a suit might have been prosecuted in such court to recover the said contents, if no assignment had been made, except in cases of foreign bills of exchange. The action was brought in the Circuit Court for Maryland district by a citizen of New York, as the endorsee of a bill of exchange, against the defendants, citizens of Maryland, as drawers. The bill was drawn at Baltimore, and payable at New Orleans; and the payee was also a citizen of Maryland. It was contended by the defendants that the Circuit Court had no jurisdiction of the case as the original parties to the bill, the drawers and the payee, were all citizens of the same state. But the Supreme Court decided that the bill was a foreign bill within the meaning of the act, and therefore that the United States Court had jurisdiction of the action. The following is the whole of Mr. Peters's summary of this decision, consisting of two extracts from the opinion of Judge Washington. Bills of exchange drawn in ope state of the union, on persons living in another state, partake of the character of foreign bills, the states and the citizens thereof are one, united under the same sovereign authority, and governed by the same laws. In all other respects, the states are necessarily foreign and independent of each other. [590]' p. 586.

and ought to be so treated in the courts of the United States. . For all national purposes embraced by the federal constitution,

This summary is at once redundant and defective. The second paragraph is a mere general observation, which should not have been introduced into the abstract. But notwithstanding this unnecessary matter, the very point decided by the court is entirely neglected. No reader could suspect from the summary that a question of jurisdiction had been decided. The first paragraph, which seems more nearly connected with the point in controversy, than the other, and which contains the statement of a principle properly introduced by the judge in his opinion as introductory to his conclusion, becomes in the hands of the reporter a feeble and barren generalization.

The first paragraph of the summary in Leroy v. Johnson, p. 186, is as follows. " 'In an action originally commenced against A and B as partners,

upon an alleged engagement by the firm, and where A who was not found or served with process, was offered as a witness in favor of B, having been released by B, the Court said, “ It is to be premised that the only ground upon which the objection can be rested is the supposed interest of the witness in the event of the cause; since the suit having regularly abated as to him by the return that he was “no inhabitant,” he was no more a party to it, than he would have been had his name been altogether omitted in the declaration. As to the objection upon the score of interest, it is sufficient to remark, that it was manifestly hostile to the party in whose favor he testified, and who offered it in evidence; since the plaintiffs' recovery against the defendant, and satisfaction from him, would be a bar to their action against the witness; and the release of A protected him against any action which Å might bring against him for contribution or otherwise.” [194]

Here the reporter favors the reader with the reasoning of Judge Washington, which is, no doubt, sound and well expressed, however out of place in the abstract; but he has forgotten to give the decision of the court which rested on this reasoning, viz. that A was a competent witness, the only thing which was important to be stated beyond the circumstances under which the witness was offered.

We could very easily multiply the number of our citations. Indeed there is scarcely a single abstract in the volume which

states the points in the case definitely and tersely, and which is not open to serious objections.

One of the paragraphs in the summary of Boyce v. Anderson, p. 150, is as follows.

"The ancient rule of the law of carriers, that the carrier is liable only for ordinary neglect, does not apply to the conveyance of slaves.

This is directly the reverse of the opinion expressed by the court. C. J. Marshall, in giving the opinion, says, ' But if the court is right in supposing that the strict rule introduced for general commercial objects, does not apply to the conveyance of slaves, the ancient rule “that the carrier is liable only for ordinary neglect, still applies to them.”

ART. VIII.-NEW HAMPSHIRE CASES. Cases Argued and Determined in the Superior Court of Judi

cature of the state of New Hampshire. Vol. I. Part I. Containing Cases from January to November, 1827. Chester. Currier, French, and Brown. 1829. p. 200.

This is a collection of forty-two cases, ably argued by the counsel, elaborately and learnedly investigated by the court, and skilfully reported. We have rarely taken up a volume of the kind in which the task of the reporter is executed in a better style. The abstracts, particularly, are remarkably well made. Though we have not followed them exactly in our own, yet we have not varied from them, with the expectation of making them better, but partly for conciseness, and partly to adapt them to the object of our work, by taking only the propositions of a general character. Only one of the abstracts struck us as defective, and of the defects of this we have some doubt. It is this, "When a contract not to sue, is to be construed as a release.'

Parker v. Holmes. p. 97.
Our abstract of the same case, to save the reader the trou-
VOL. III.-NO. V.

14

ble of turning to it, under the head of Agreement not to sue,' is as follows.

Thomas Holmes makes a promissory note to French, and secures payment by a mortgage. He afterwards sells the equity of redemption of the mortgaged premises, which, after some intermediate conveyances, is conveyed to French by Jonathan Holmes; with whom French at the same time agrees to look exclusively to the mortgaged premises for the payment of Thomas Holmes's note. This is not a release of the note, but, at the most, only gives Jonathan H. a right of action against French, in case of a suit being brought upon Thomas H's note.'

The objection to the reporter's abstract, is, that it is too general, it gives the reader too imperfect a notion of what the case contains. The case does not profess to be a comprehensive disquisition on the general question, when an agreement not to sue will amount to a release. Upon this general subject it only gives the received doctrines, and, assumes that if this agreement had been made with Thomas Holmes himself, the maker of the note, it would not amount to a release of the note; a fortiori, such an agreement with a third party will not have that effect. The point is thus very happily presented by the Chief Justice in giving the opinion of the court, and the decision reduced to a plain syllogism. But this point cannot easily be presented, without stating the general facts of the case, as we have done in our abstract; at least we do not think of any shorter way of presenting it. The objection to our abstract is accordingly its length. Where abstracts are arranged in an index, the general head, as Agreement not to sue,' Release,' &c. gives the leading subject of all the abstracts contained under it. But at the beginning of the cases in the volume of reports, it may be well, as is often done in similar instances, to make two abstracts, one such as that of the reporter in this case, presenting the general subject of the decision, the other including the facts and inference. We will not, however, go into any consideration of the subject, as we have considered it particularly in our previous numbers. Our only purpose here is to remark, that this abstract is the only one in this collection of cases, respecting the accuracy and sufficiency of which any doubt occurred to us in looking them over.

Many of the questions discussed in these forty-two cases

are of general interest, as will appear from our abstracts of them. The volume opens with the discussion of a point of evidence in an action for covenant broken, brought upon a deed dated Dec. 10th, 1813, of a piece of land in the town of Boscawen, with warranty against all incumbrances, and the question was, whether the grantor had, in effect, granted the public a right of way over the premises, by acquiescing in the use of such way from 1796 to the time of the conveyance, in 1813. We quote the opinion of the court, as likely to be interesting to many of our readers who will not probably have access to these reports.

("There is” says Lord Mansfield, “a great difference between length of time which operates as a bar to a claim, and that which is used only by way of evidence. A jury is concluded by length of time that operates as a bar, as where the statute of limitations is pleaded in bar to a debt; though the jury is satisfied that the debt is due and unpaid, it is still a bar. So in the case of prescription, if it be time out of mind, a jury is bound to conclude the right from that prescription, if there could be a legal commencement of the right. But any written evidence showing that there was a time when the prescription did not exist, is an answer to a claim founded on prescription. But length of time used merely by way of evidence may be left to the consideration of the jury, to be credited or not, and to draw their inference one way or the other according to circumstances.” Cowper 108.

i Length of time, when it amounts to a bar, is always a fixed period. In England, the time of memory is fixed to the commencement of the reign of Richard the First, which was the 7th of July, 1189. Every thing done before that time is said to be before the time of memory, and every thing done since is within the time of memory. If a prescription can be shown not to have existed at any time since the 7th of July, 1189, it cannot be supported. 2 Rolle's Ab. 269.

"So both in England and this country, when length of time is made a bar to an action, real or personal, it is a fixed period.

As a writ of right, which is the highest remedy known to the law for the recovery of land, is in England limited to sixty years, it has been thought there, that the time of memory in relation to prescriptions should be by parity of reason limited to the same period, because prescriptive rights are in their nature inferior to land. 2 Rolle's Ab. 260. And in this state, as all the remedies in common use to recover lands are in general barred by an uninterrupted adverse possession, for twenty years, it would seem that, upon principle, an uninterrupted and constant use of a way over land for twenty years should be conclusive evidence of a

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