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2. (Same.) A naked affirmation is not itself an express warranty,
nor evidence of it; and though it may, in connection with other circumstances, be competent to show that the vendor had agreed to be responsible for the truth of it, yet the effect of oral words in constituting an express warranty, is determinable not by the
court but by the jury. Ib. WITNESS. (Wife.) A wife cannot be a witness in a case
where a joint charge is jointly tried against her husband and others; yet if they are separately tried, she is a competent witness for the other co-defendants; and to give them the benefit of her testimony, separate trials will be awarded them by the court, in all cases except that of a criminal conspiracy.
Commonwealth v. Manson, and another, 2 Ashmead, 31. 2. (Vendor of land.) A vendor of land released from his cove
nants as to title is a competent witness for the vendee in an ejectment against a third person for part of the property sold.
Summers v. Wallace, 9 Watts, 166. 3. (Partner.) In an action of debt upon a lease, a partner of the
defendant in the business carried on with the demised premises, although not a party to the instrument, is incompetent as a wit
Lomis v. Ruetter, 9 Watts, 516.
1.- The Louisiana Law Journal, devoted to the Theory and
Practice of the Law. Edited by GUSTAVUS SCHMIDT, Counsellor at Law. Vol. I. No. 1. May, and No. 2. August, 1841. Published quarterly by E. Johns & Co., New Orleans, 1841.
In our last number, we expressed a hope that this young law periodical might live to grow up; and the appearance of the second number, at its regular time of publication, gives some assurance, at least, that we shall not be disappointed. Before noticing the contents of these two numbers, we beg leave to suggest to our cotemporary, instead of the perpetual rubrick of the “ Louisiana Law Journal," to place a running title referring to the subject treated of at the head of the page, by which one would be able to look at any particular article without turning over the whole work. The first number contains the editor's address to the public, a history of the jurisprudence of Louisiana, reviews of Savigny's treatise on Possession, and Story's Conflict of Laws, - reminiscences of the late chief justice Marshall, -celebrated criminal trials in France, Scotland, and Spain, - reform of the law in Russia, - decisions of the Supreme Court of Louisiana, and the trial of William H. Williams. The second number contains the ordinances of O'Reilly, - speech of the attorney general in Williams's case, articles on the necessity of a criminal court of appeals, and on the Batture question, - decisions of the supreme and commercial courts, – law notices, — and letters to the editor from judge Story and chancellor Kent (which, we imagine, the learned writers could hardly have intended for publication.)
We are much pleased with the undertaking of this periodical, and congratulate our professional brethren, throughout the union, on the facilities which it will afford them for becoming acquainted with the peculiarities of the jurisprudence of a state, with which almost every state in the union has business relations of more or less importance. The work is ably conducted, though, in addition to the defect already noticed, we could point out others of a similar, and some of a graver character. We observe, for example, that both the numbers before us belong to the first volume, but they are not paged continuously, as they should be to form one volume, but independently; so that in referring to them hereafter, we must not only mention the volume and page but add also the number. These little things, though they do not belong to the “ weightier matters of the law,” are not without their importance. We wish our cotemporary all the success, which so laudable an undertaking deserves.
2. — Reports of Cases at Law and in Equity, argued and de
termined in the Supreme Court of Alabama, during 1840. By the Judges of the Court. Volume I. New Series. Tuscaloosa :* 1841.
Hitherto the decisions of the supreme court of Alabama have been published by a state reporter, an office which seems to have been continued down to and including the year 1839, with which Mr. Porter closes his ninth volume. The cases for the year 1840, contained in the volume before us, appear as the first volume of a new series of Alabama Reports, reported by the judges of the Supreme Court. But why this change has been made, or by what means, neither Mr. Porter in his closing volume, nor the judges in the commencement of their new series, have seen fit to inform us. This is a sort of neglect, which we have had so frequent occasion to observe, that we are almost ready to lay it down as a general principle, that reporters and revisers of statutes
are wholly unable to write prefaces. In the present case, as on many former occasions, we should like to know the why and the wherefore of the change to which we have alluded.
Notwithstanding the substitution of the judges for our old friend Mr. Porter, we do not perceive any change for the worse, either in the character of the cases or the manner in which they are re. ported, in reference to both which particulars, we have, heretofore, and on more than one occasion, expressed our favorable opinion.
3.- Opinions of the Attorneys General of the United States, from
the commencement of the Government down to the first of March, 1841. Public Documents of the 26th Congress, 2d Session. House of Representatives, No. 123.
In order to render this volume of opinions as valuable as it was probably expected to be, when the preparation of it was directed by congress, each of the opinions should have been accompanied, when necessary, by a short statement of the facts or case to which it refers; as it is, however, it is a most valuable and interesting collection of authorities on points, which, from their very nature, are not likely to arise in the courts, but which are nevertheless of great importance to the public. This volume may be regarded as the first contribution to that branch of our jurisprudence, which, in France, is designated by the term “administrative law."
4. — The Law Magazine : or Quarterly Review of Jurisprudence.
No. LIV. November, 1841. London: Sanders & Benning.
This is an uncommonly interesting number of a journal, to which we have before and often achjowledged our obligations. It has arrested our attention, however, at the present time, as it contains a review of our translation of professor Mittermaier's article on the effect of drunkenness upon criminal responsibility, published in a late number of the Jurist and also as a pamphlet. Our translation, it seems, has been reprinted in the Law Series of the “ Cabinet Library of Scarce and Celebrated Tracts,” published
at Edinburgh, and, for aught that appears in the title, as given in the Law Magazine, without the slightest acknowledgment of the source from whence it was taken. The reviewer speaks of the work as “an ingenious essay on a curious question by a remarkable man," but, as might be expected, he does not agree with the author in all his views.
5. — Case of Bates and Himes against the Bank of the State of
Alabama, in the Supreme Court of Alabama. June term, 1841.
We have been very politely furnished with a carefully prepared report of this case, published in advance of the volume for the current year; and we regret that it is not in our power to give any thing more than an exceedingly brief notice of it.
By the charter of the bank of the state of Alabama, it was forbidden" to purchase or discount any draft or bill of exchange for a larger sum than five thousand dollars," and also “ to deal in articles of goods, wares, or merchandise, in any manner whatever," un. less to secure a debt due to the bank in its regular business transactions; and on these two prohibitions arose the principal questions in the case. The circumstances which gave rise to it are stated in the following extract from justice Ormond's opinion.
“In the early part of the year 1837, owing to the convulsions in commerce, and other causes, there was a general suspension of specie payments by the banks of the different states; and, by the sudden withdrawal of the accustomed supply, commerce languished, and great distress pervaded the entire community. As a necessary consequence of this state of things, confidence was lost, and the bank, though willing to pursue its accustomed course, could not do so without the risk of increasing the amount of indebtedness to the bank, whiub was already too great. In addition, by the act of the called session of 1837, the banks of the state were required to replenish their vaults with specie. During the existence of this state of things, the bank adopted and promulgated the rules and regulations' now under consideration. The preamble states, " that the board of directors being desirous of placing the bank in a situation to resume specie payments as early as possible, and to maintain the character and value of its paper, and to accomplish those important and desirable objects, must be provided with a suitable proportion of specie