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ARGUED AND DETERMINED

IN THE

Circuit Court of the United States,

FOR THE

SECOND CIRCUIT,

COMPRISING THE DISTRICTS OF

NEW YORK, CONNECTICUT AND VERMONT,

By Hon. ELIJAH PAINE, Jun.
LATE ONE OF THE JUDGES OF THE NEW YORK SUPERIOR COURT.

WITH NOTES AND REFERENCES,

BY THOMAS W. WATERMAN,

COUNSELLOS-AT-LAW.

VOL. II.

NEW YORK:
BANKS, GOULD & CO., 144 NASSAU STREET.

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

1856.

Entered according to act of Congress, in the year eighteen hundred and

fifty-six,

BY BANKS, GOULD & Co, in the Clerk's Office of the District Court for the Southern District of New

York.

LIBRARY OF THE
GEARD STAUFORE, JR., UNIVERSITY

Lid DEPARTMENT.

BANKS, GOULD & Co., LAW PUBLISHERS, 144 NABBAT ST.

John McN100L, STEREOTYPER, 11 SPRUCE ST.

PRE FACE.

A LARGE proportion of the learning of the law is contained in the Reports. To be reminded of their utility, we need only to remember, that it is to this source we must look for the interpretation, not only of statutes, but also of all the leading rules and principles which compose our system of jurisprudence. Every elementary treatise derives its sanction from the reported cases, and no judicial proceeding is conducted without constant reference to, and dependence upon them. They are as various as the conflicting and diversified interests of society, no two cases scarcely ever being in all their features precisely alike. It is this protean character which gives them their true value, for they thus become eminently serviceable as examples. Arising, as they do, from the common transactions of active life, at the period of their decision they are of more or less practical significance; and while it must be admitted that some, in the progress of time, become obsolete, yet many, founded as they are upon the broad and everlasting foundation of universal justice, continue to be studied and cited long after the occasion which gave birth to them has been forgotten.

It is not surprising, then, that this species of knowledge is sought after with avidity by the profession, and that the best and most useful libraries are those which are the most complete in all the standard Reports. In a commercial community like ours, cases of deep general interest, involving many nice questions, are constantly being tried, and it cannot be doubted that the withholding an accurate report of them, would be a public misfortune.

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The comparative value of Reports must depend upon the importance of the questions decided in them, as well as upon the dignity, ability and learning of the court. It may be safely affirmed, that the cases in the second volume of Paine's Circuit Court Reports, are, at least, equal in interest and importance, to any to be found in similar publications, while some of them are of very decided value. With regard to the court, it may be sufficient to remind the reader that they not only emanate from the Circuit Court of the United States, but from some of the ablest judges of that court.

Of the judges we have only to enumerate the illustrious names of Chief Justice Jay, Brockholst Livingston, Wm. P. Van Ness, James M. Wayne and Smith Thompson, to be satisfied of the high character of the bench which pro. nounced these opinions, and of their consequent weight as authority.

To Justice Thompson, however, we are chiefly indebted for the learned, clear and satisfactory decisions which are contained in this volume. In the long list of eminent jurists whom the State of New York is proud to enroll among her sons, none, perhaps, were more conspicuous for those sterling qualities of head and heart which constitute the able and efficient judge, than Smith Thompson. He possessed a mind of remarkable clearness and vigor, and powers of analysis and close reasoning of no ordinary kind. Modest in his deportment, and plain in his manners, he yet had a firmness of purpose and an independence of spirit, which, in the pursuit of truth and right, were inflexible. His opinions, so lucid and concise, and expressed in language so simple and yet so pointed, are models of judicial composition. Called to the bench of the Supreme Court of New York so early as 1802, and having for his official associates no less distinguished personages than James Kent, Morgan Lewis and Ambrose Spencer, he at once took a prominent position, which he ever after, during a

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