is necessary, as we see from old forms, to add the right of ways, woods, and watercourses, Lilly. Con. 132. and 179. Bridg; Con. 321. That whatever might be said of water in its natural bed on the soil, as water in a running stream; yet a well being dug by the labour of hands, the water thus acquired, must be counted as personal, not real property. Barbeyrac Titius, and Locke. That at a well, the water being drawn up by the bucket,and thus by one act separated from the freehold, and by another taken from the bucket, it becomes a subject of larceny: as in the law of corn, trees, pr grass growing, For if these be severed at one time, and at another time taken away, it is larceny. Hawk. Pl. Cr. 93. It was replied, that an ejectment would lie of water in a well; for here the water is fixed in a certain place, within the bounds and compass of the well; and is considered as part of the soil. Run. 37. That ex vi termini, in the indictment, "s out of the well," it must be considered a water ex out of, or from the well; that is water severed by the very act of taking; for otherwise it would have been expressed by "water out of the bucket," of Andrew Mab; not out of the well; and so the taking could not be larceny, but trespass: as in the case of a tree that is cut down at one time, and taken away at another; or apples growing on a tree, or shaken down and gathered from the soil; the first being a trespass, the second larceny Curia advisare vult. The Captain, whispering to lawyer Grab, enquired what difference it made in the punishment, whether it was larceny or trespass? He was answered, that in the one case it was hanging by the common law, and in the other to pay the value of the property. A very material difference indeed, said the Captain, to depend on so nice a distinction." His allusions to the persecution that the judicial department has in some instances suffered, are frequent, for his recollection was quickened by the rankling sting of personal feeling On some points in education he has advanced rather singular notions. It is his opinion, at least he gives that side the best of the argument, that the system of early com position is prejudicial to the improve- We will conclude with a few observations on the style; because it is professedly a great point with the author, insomuch, that he holds it forth, as the sole and individual ob ject of his writing, to give the publick a specimen of a perfect English style. Some casual passages render it probable, that what was written, apparently in jest, was, in some measure, true in reality. The qualities of the style, that are commendable, are plainness, perspicuity, and simplicity. His model is probably the manner of Addison; but, upon a pretty careful observation, we cannot discover much of the classick sim plicity of that elegant writer. His common plainness of style, into vulgarity, as some of our extracts may shew; and perhaps in this part,is more fortunate than in any other; but when he attempts to elevate his style, in correspondence with some elevation in his topick, we find him seldom so successful. There is scarce a better instance of burlesque in the whole book, than the description of the adventure of the unfortunate lady," that hanged herself one morning in her garters," which was doubtless intended for a very serious and affecting narrative. [Vid. Vol. p. 137.] indeed, as more happy than you, because instant witnesses of their achievements. Oh from the foe, struck with the sublime of his personal prowess, and excellent knowledge of the military art. Much unlike, and far above those who languish with sickness on a bed in calm life, where relations standing round wish the departure of the shade, and grasp at the property which he leaves behind. But the fame of a soldier none but himself can enjoy, there can be no heir or devisee of his property. It is his own, and it mounts with him. His blood only remains to bless the earth, from which flowers and roses spring, and clothe the woods and groves with enchantment and As a specimen, however, of what his powers are capable of producing, we extract the following introduction to a fourth of July Oration; which was read to the Captain by an orator of that day, on an accidental encounter. It is among the few passages, where an attempt is delight. For here the song of poesy is made at elegance, and we think it is here not altogether unsuccessful. Compatriots! I wish to say those things, that never have been said, and that never will be said again. Because, in this case, there will be the characteristics of novelty and singularity; the two great constituents of pleasure, in all intellectual entertainments. But what can I say new? Has not the whole world resounded with the justness of the cause in which we have been engaged; with the greatness of the attempt to withstand the power of Britain? And have not we ourselves felt, seen, and known the great variety and changes of good or bad for. tune? What will it contribute to our immediate enjoyment to go over such scenes, unless the particular achievements of each officer can be enumerated, which decency forbids, and which indeed, cannot be done in the limits of one harangue. Leaying, therefore, ourselves, and these scenes, wholly out of the question, let us speak a little of those whom we left behind. But why need we speak; For all time will speak of them. The bards that shall live, will draw hence their choicest allusions. Consider them, awakened, and at morn, and noon, and at still eve, their voices are heard who rehearse where the brave fell, and where they sleep. Sublime spirits! whether you inhabit the Pagan elysium or the Christian heaven, you are happy; and listen to those immortal lyres which are strung to the deeds of heroes. Several pieces of rhyme are inserted toward the end, but that they cannot be called poetry, the following is sufficient proof. Come gather away to the new town, No maid that comes here but gets mar- Before she is here half an hour; The brown, the black, or the hair red, To live single is not in her power. Come gather away, St. Our governour is a fine fellow, And blinks himself like a cat. No Jawyers are here but a couple, Just enough to keep up the breed, Come gather, et. The air of this country is clearer, The water is clearer by far, The words of our wooing are dearer, Such words as a body can spare; When we smother the maids with our And they smother us in their turn; With this mixed opinion of censure and approbation, we dismiss the volumes of "Modern Chivalry."— We can venture to affirm, that it will never, like its great model, the work of the immortal Cervantes, assume a commanding rank in the literature of the world; still less will it root out the seeds of ambition, of restless, aspiring ambition, from republican bosoms. Neither is it to be wished that it should, for notwithstanding the visionary ideas of its author, the same stroke, that lev. elled the shoot of ambition, would destroy every production of generous sentiment, the springs of enterprise and the charm of life. Notwithstanding this, it may be read without disappointment, and even with much satisfaction, by those, who would beguile a vacant hour with amusement, and he that reflects on the argumentative parts, may draw from them no small improvement. As the work is scarce, our extracts have been copious; if our readers find them amusing, they will not repine that they are abundant. ART. 35. Reports of Cases argued and ruled at Nisi Prius, in the Courts of King's Bench and Common Pleas, from WHATEVER is the comparative value of these Nisi Prius Reports in the Courts of Westminster Hall, they have certainly been very useful in this country, which is proved by the explanations they afford of the practice on innumerable points, which frequently cannot be found in the solemn adjudications of the whole Court. Disputes on practice, and on principles of evidence may be se verely contested here, which, having been long settled, are allowed no more to be controverted in Great Britain. If such is the importance of these Reports, their value is doubled by the labours of Mr. Day. In the harry of jury trials, little op portunity is afforded to the counsellor for research among the authorities; and to the collected wisdom of hundreds of years, as displayed in the annals of the law, or explained by the treatises of grave and learned men, the reporter has less leisure to make references, when the useful. ness of his volume depends so much upon its early publication. With all his diligence, Mr. 'Espinasse has not usually referred to more than one book in the course of ten or a dozen pages; but the citations in Mr. Day's edition amount to many thousands, and he has more on a sin gle page in some cases, than are to be found in the whole four volumes of the English reporter. We shall extract part of Mr. Day's advertise ment, to show the publick what were his objects in this work, and we assure them, they are completely attained. The improvements attempted in this Edition, consist of references, notes and corrections. The references are to other re ports of the same case; to other cases supporting or oppugning the same point; to analagous cases; and to the opinions of eminent jurists. The notes are ab stracts of analagous cases; and observations upon them. The corrections are limited to such errors in the text, as were evidently either clerical or typographical. The notice taken of American cases, the editor trusts, will add something to the value of the work. In the states in which they were decided, they will, of course, be regarded as authorities. In the other states, their use to illustrate principles, and to guide in the application of them; to extend the range of juridical inquiry; to concentrate the wisdom of many, sanctioned by the test of experience; to guard against sudden impressions, and local prejudices; and, especially, to lead to a uniformity of decisions in different jurisdictions, which, though separate, are yet so connected, that uniformity is essential to reciprocity and justice, will be perceived, and acknowledged by every liberal lawyer. Besides the references to English authorities on the same topicks, or to analagous cases, the law books of our side of the water are found in the margin. This will open new sources of information to many of our bar, who, however conversant with the ancient and modern adjudisations in England, are not unfrequently so ignorant of the decisions in any other state, than their own, as never to have heard the names of some of the reporters. Mr. Day's American authorities, though perhaps all of them do not deserve that name, are, 1 and 2 Washington's Reports, Addison's do.1 Hayward's do, Taylor's do. 1, 2 and 3 Cranch's do. Bay's do. 1, 2, 3 and 4 Dallas's do. Wallace's do. 1, 2 and 3 Caines's New-York Term Reports, 1 and 2 Johnson's Term Rorts, 1 and 2 Caines's Cases. Pennington's Reports. 1 Hening and Munford's do. 1 Peters's Adm. Decisions. Kirby's Reports. 1 and 2 Root's do. I Day's Cases. 1 and 2 Massachu setts Term Reports. Caines's Lex. 2 Swift's Merc. Am. Chipman, System. as It is not to be expected, that the case, cited by a lawyer, will always have a favourable influence on the principle, he would support. In note to Arden vs. Sharpe et alt. 2 Esp. 525, Mr. Day says, it is not ne order to be binding upon the partcessary, "that the act" of one, "in. nership, should be done with the sent or knowledge of the others: Nor that it should be done on the partnership account. The act of one partner, in the usual course of business, in the name of the partnership, though on his private account, will bind the partnership." For this latter point we are referred to Drake & alt. vs. Elwyn & alt. 1 Caines 184. But the difficulty in that case was chiefly the proof of partnership. To the point, after that, whether the note, signed by the stile of the firm was given on a partnership transaction, Judge Kent says: "The intendment is, that it was on a partnership account, and that intendment ought to have been repelled by the defendants, if not founded in truth." This appears to us a little at variance with the principle it was cited to establish, which is, however, good law. Another part of this same note is werth extracting, to show the strange custom of our sister state of Connecticut. The principle, which makes the act of one partner, in the course of trade, the act of the partnership, does not ap ply to deeds. One partner cannot bind the partnership by deed, though executed in the partnership name. Harrison v. Jackson, et al 7 Term Rep. 207. Gerrard v. Basse, et al. 1 Dal. 119. And, a fortiori, a covenant, or a promissory note, where such notes are specialties, executed by one partner, in his individual name, though on the partnership account, will not be binding on the partnership Mead v. Tomlinson, I Day's Ca. 148. Ripley v. Kingsbury, 1 Day's Ca. 150, note (4.) Neither can partners compel each other to appear in suits, nor represent each other in courts of laro. Per CHASE, J. Hills, et al. v. Ross, 3 Dal. 331. * In Connecticut, promissory notes are regarded as specialties. That Lord KENYON's opinion, in Rex v. Eden, 1 Esp. 98, was 'erroneous, is fully proved in Mr. Day's notes. The defendant was indicted for perjury, in his testimony on a former trial; and Brett, against whom a verdict was given, in consequence of Eden's testimony, being called as a witness for the prosecu tion, was objected to, as incompetent, unless he had paid the debt and costs in that action. His Lordship admitted the force of the objection, and rejected the witness, because, "it appeared to him, that, in case the defendant was convicted on this prosecution, that Brett would be relieved in a court of equity against the judgment, the verdict having been obtained on the sole evidence of Eden. That therefore the conviction of Eden, being the means of relieving him from the judgment, was an interest which rendered him incompetent." Part of another note on this case we extract, as a specimen of the dilligence of the American Editor: The person, in whose name an instru ment has been forged, has been uniformly held to be an incompetent witness to prove the forgery; and this is considered by Lord Ellenborough, [4 East. 582) a an anomaly in the law of evidence. “Upon what principle," he adds," the anoma fous case was so settled, I cannot pretend to say; but, having been so settled, it may be too much for judges setting upon ly can only be remedied now, by the le trials, to break in upon it The anom gislature." Vide Watts' case, Hardr. 331. S. C. 3 Salk. 172. Rex v Russell, Leach's Cro. case, 10. Robert Rhodes' case. Leach's Cro. case, 25, 26. Rex v. Taylor, Leach's Cro. case, 215. Caffy's case, 2 East's P. C. 995. Rex v. Rhodes, 2 Stra. 728. Praes Ev. 168, 9. In Connecticut, this anomaly has been adopted from the English law. State v. Bronson,. I Root. 307. State. Blodget, 1 Root, 534- But not in Pennsyl vania. Respublica v. Keating, 1 Dal 110. Pennsylvania v. Tarrel, Addis. 246. Res publica v. Ross, 2 Dal, 239; nor in Maus Mass. Term. Rep. 7. chusetts. Commonwealth v Hatchinson, 1 Mr. East, in his Treatise of the Pleas of the Crown, vol. II. p. 994, attempts to shew, that the distinction is not an arbitrary one. His reasons in support of it are certainly plausible. One his translation of Pethier, p. 316, says, he of them, Mr. Evans, in the appendix to has heard assigned by a learned judge, The cases, in which the action for money had and received will lie, and where not, are well marshalled by Mr Day in a note to Marriott v. Hampton. 2. Esp: 548 An impor tant note will be found on Chaters v. Bell & alt 4, Esp. 49. The American authorities are usually cited after the English upon the same point; and we wish the editor had uniformly adhered to that rule. The names, that most frequently ap pear in the notes, are Dallas, Caines, Johnson, Bay, and Cranch. Root's reports are perhaps quoted oftener, than their value will justify Our Massachusetts Reports occur but twice or three times. Mr. Day's Reports of Cases in Error, which the character of the editor must |