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NEW YORK:
BANKS, GOULD & Co., 144 NASS A U-ST.

ALBANY:
GOULD, BANKS & co., 475 BROADWAY.

KEN

1854.

5051

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SOUTHERN DISTRICT OF NEW YORK, SS. BE IT REMEMBERED, That on the twenty-eighth day of March, in the fortyfourth year of the Independence of the United States of America, JOHN ANTHON, Esq., of the said district, hath deposited in this office, the title of a book, the right whereof he claims as author, in the words following, to wit:

"The law of Nisi Prius, being reports of cases determined at Nisi Prius, in the Supreme Court of the State of New York, with notes and commentaries on each case; to which is pretixed an introductory essay on the studies preparatory to the active duties of the bar. By Joan ANTHON, Esq., Counsoilor at Law. Indocti discant, et ament meminisse periti."

IN CONFORMITY to the Act of the Congress of the United States, entitled, “An Act for the encouragement of learning, by securing the copies of maps. charts, and books, to the authors and proprietors of such copies, during the time therein mentioned " And also to an Act, entitled, An Act, supplementary to an Act, entitled an Act for the encouragement of learning, by securing the copies of maps, charts, and books, to the authors and proprietors of such copies, during the times therein mentioned, and extending the benefits thereof to the arts of designing, engraving, and etching historical and other prints.”

G. L. THOMPSON, Clerk of the Southern District of New York.

Entered, according to the Act of Congress, in the year eighteen hundred and fifty-four, by BANKS, GOULD & Co., in the Clerk's Office of the District Court of the Southern District of New York.

BANKS, GOULD & Co, Law Printers, 144 Nassau street.

Tuos. B. SMITH, Stereotyper, 216 William street.

PREFACE.

censure.

The multiplication of books of reports has been, with some, a subject of lamentation, and with others, of positive

And yet, notwithstanding this lamentation and censure, there is no species of learned labor in the law which is sought after with more avidity, or which is of more indispensable necessity. When we enter the lawyer's study, these works form the principal ornament of his well clothed shelves. When we enter the courts of justice, they are found to supply the bar with the elements of polemics, and the bench with the component parts of legal judgment. Indeed, such is their importance, that a court of justice, with judges however learned, without a report of its adjudications, is ephemeral; its influence may be noted for the day, but its value is lost to posterity. It seems, then, that we are constrained to conclude that, as a general proposition, the objection to recording and circulating the learned proceedings of the bench and bar is quite unsound. This

opposition, however, sometimes assumes a more plausible form; the necessity is admitted, but the excess is reprobated. Excess, it is readily admitted, is, at all times and in all things, an evil, and may occur in matters which are most highly prized. In the varied and constantly fluctuating concerns of man, with which reports are connected, it is difficult to define what constitutes excess; for it is a fact worthy of much consideration, that as time rolls on, modes of human action charge, and much of this recorded learning, indispensable in its day, becomes inapplicable, and even obsolete. New supplies of living law (as it has been happily termed) are then required, and the learning of former ages ceases to be active, and becomes historical and monument

al only.

Look at the "Year Books,” that grand depository of the legal lore of our forefathers, protected and sustained as it was by royal authority. This great work is, to us, little more than a record of legal history, and of modes of action that have passed away. Look at the labors of our great master, Coke; how small a part of his twelve learned books of reports can be considered living law at the present day! Look at Plowden, “ Facillime Princeps,"

Facillime Princeps,” among the scientific pleaders, who, in days past, adorned the profession; who reads, or finds it necessary to read, or even to cite, in the tribunals, his profound and accurate volume ?

If time has thus removed the traces of the giants, after they had performed their functions in their generations, and has thus limited their active influence to their own periods, or, at the most, extended it to those which immediately followed and resembled them, there can be but little

doubt that the same remedy will keep at a proper level the labors of the present and the future, however copious or learned. This

may suffice as an answer to all objections to that which may be denominated regular reporting. Cases at Nisi Prius, however, may be considered by some as not entitled to the protection of these considerations, and that consequently the objection remains to their multiplication. It is true, as a general rule, that these reports do not reach the dignity of precedents; nevertheless, the honor they have often received, added to their vivid and highly dramatic character, has led to their extensive introduction in that country to whose wisdom, in the law, we most justly defer. A few commendatory notices, from great legal minds, may suffice as an apology, at least, for the publication of an improved and enlarged edition of the only work of the kind which has been attempted in the United States.

Lord Kenyon, speaking of a decision of Lord Chief Justice Holt, made by him at Nisi Prius, and cited by learned counsel at the bar, remarked " that though only a nisi prius case, and that not an absolute decision, yet it was the opinion of a judge whose name gives a sanction to everything he said.” In his further consideration of the case before him, he ranked that opinion with one of Lord Mansfield's given under all the ceremonies of a judgment in banco. Rotch v. Edie, 6 D. & E. 423.

Abbott, C. J., having occasion, when the judges were delivering their opinion " seriatim," to consider and apply three nisi prius opinions of Lord Ellenborough, observed, "these cases were decisions at nisi prius; but they were

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