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One of the Judges of the Circuit Court of Wisconsin

St. Paul, Minn.


Copyright, 1894,




There is no branch of the law so fraught with perplexities to the practitioner as that which has been made the subject of this treatise. The difficulties are twofold: One, to ascertain what the law is; the other, where to find it. The law is largely what may not be inaptly termed "judge-made law." It had its origin in the expressions of a learned judge. Those expressions were adopted as rules. They have been made the subject of discussion and construction by courts everywhere. Courts of the several jurisdictions have arbitrarily adopted constructions peculiarly their own, resulting in widest, and it might be said most unpardonable, differences and distinctions. Such want of uniformity has produced confusion, uncertainty, and probably injustice. The statement of the general rule, in most respects, is but a meaningless expression; certainly, an incomplete one.

It conveys but little, if any, knowledge of the law in particular courts or states. The practitioner is forced to examine and review the decisions of a particular jurisdiction, if he would learn the law of that jurisdiction, and, if able to find it, he too often finds it is valueless for use in another. To add to his confusion, he will find the same courts, in their efforts to apply the general rule, have not always been consistent. Largely, this is a result of the influence of decisions of other courts; to some extent the result of


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sentiment; and also, in some measure, the result of a lack of a thorough understanding of the exact principles upon which other decisions were predicated.

To review the many decisions of a state upon the subject, and extract therefrom rules or principles, is a work requiring much time and considerable mental effort. First of all, the decisions which are apparently conflicting and there are many such) must, if possible, be reconciled. Un. . less familiar with the general subject, there is much that will escape his attention. The courts have often indulged in such nice refinements that a distinction is not always plain or readily noticed. To properly prepare and present his case, ofttimes he is forced to apply precedents from other courts. His difficulties are thus increased. Whether applicable or not depends upon the construction of the general rule they have adopted. He must extract the rule.

These difficulties were presented to the writer, at the bar as well as upon the bench, and were suggestive of the preparation of this work. He had to extract from a large number of decisions the rule of the Wisconsin court,-a matter of no little difficulty. When precedents were sought to be applied (as they often were) from New York, Massachusetts, Ohio, and other states, their value depended upon the construction placed upon the rule by their courts, -whether the same as by the Wisconsin court in analogous cases; and this had to be determined, most frequently, by the logic used by the courts, rather than the result declared. The rule applied in Ohio, or the construction of the general rule there, had no application. In Massachusetts it would apply as to some particular subjects, but not as to others. Even the rule in New York could not always be relied upon. In some particulars the reasoning of its court is not in harmony with the logic of the Wisconsin court.

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