Reports of Cases Argued and Determined in the Supreme Court of the State of New York [1803-1805]

of court during term, but of which, from the facility afforded by writing short hand, the author was enabled to copy nearly the whole. The cases reported in 2 Caines' Cases in Error were given to him by Mr. Coleman on his quit ting the bar, and had been furnished to him by the bench with a view to their being printed. Most of them have been since published in Mr. Johnson's Cases; those which were misreported, correctly; the matter of the others either a little added to, or the phraseology a little varied. GEORGE CAINES.

8th April, 1813.

PREFACE

TO THE FIRST EDITION.

In a jurisprudence where the judgments of the past are to regulate those of future times; where that which has been, is to form the rule of that which is to be, the utility and importance of transmitting, to those who are yet to come, decisions of our days, to be acknowledged, need only be named. The inconveniences resulting from the want of a connected system of judicial reports, have been experienced and lamented by every member of that profession for whose use the following sheets are peculiarly designed. The determinations of the court have been with difficulty extended beyond the circle of those immediately concerned in the suits in which they were pronounced; points adjudged have been often forgotten, and instances might be adduced where those solemnly established, have, even by the bench, been treated as new. If this can happen to those before whom every subject of debate is necessarily agitated and determined, what must be the state of the lawyer, whose sole information arises from his own practice, or the hearsay of others? Formed on books, the doctrines of which have in many respects been wisely overruled, he must have frequently counselled without advice, and acted without a guide. To alleviate these embarrassments, and disseminate that which it concerns all to know, the following Reports have been undertaken. Their continuance will be regular by quarter-annually publishing in each vacation the decisions of the last preceding term.

Their

The reporter would ill deserve the favors he has received did he not in the fullest manner avow their extent. Honors on the bench, with a kindness and warmth of encouragement, for which far more is felt than it is possible

to express, have unreservedly given their written opinions, and the whole bar has frankly and generously afforded their cases, and every other communication that was wished or desired. To these aids the clerk of the court has added an unlimited recurrence to the papers and pleadings his office contains.

From this enumeration of assistance it will appear that the reporter's exertions have been reduced to little more than arranging the materials received, and giving, in a summary manner, the arguments adduced. In stating these it has been necessary to condense; to shorten, but not deviate from the path counsel have been pleased to elect. So little has this been done, that in some instances, it has been thought right to tread in their steps, and the very words have been adhered to, because they have been considered as mirrors reflecting the case, without which it would often be impossible to behold it in the light represented to the bench. To omit altogether what the advocate has urged, and specify his points alone, has more than once been suggested; but believing the reasonings of the barrister to form the link which connects the case with the decision, it was thought impossible, without in some degree preserving the language of the pleader, to do justice to either. Notwithstanding every endeavor to render this, it must be confessed that it has not always been accomplished; and the eloquent in the law will often have to regret the inadequacy of their reporter. For this their forgiveness in entreated the fault is not in the man, but the nature of the thing. Where is the original that in the copy has not lost fire and colour? With this apology the reporter takes his leave of a bar to whom he is, in every sense of the word, truly obliged. GEORGE CAINES.

New-York, February, 1804.

TABLE

CASES REPORTED.

[Those in Italics are from Manuscript Reports read or referred to.]