USA > Wisconsin > History of the bench and bar of Wisconsin, Vol. I > Part 29
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In 1872 the legislature provided for a new edition of such of the supreme court reports as were out of print or so nearly so as to make the republication thereof, in the opinion of the court, desirable, such edition to be edited by such person as the court should select or approve. It was also provided that the volumes should be stereotyped, and that
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the state should become the purchaser of four hundred and twenty copies of each volume. This act was the result of the Chicago fire, which had destroyed nearly all the Wisconsin reports on the market. Pursuant to the foregoing, volumes 1, 2, 4, 6-20, inclusive, were edited by William F. Vilas and Edwin E. Bryant, and volumes 3, 5, by Luther S. Dixon. Volumes 8, 9 were so much reduced in size as to permit their republication in a single volume. The notes added to the new edi- tion by the editors greatly increased its value over the original edition. Volumes 21 and 22 were also reprinted, but without notes,
DIGESTS OF DECISIONS AND TABLES OF CASES.
The first Wisconsin digest was prepared by Wm. E. Sheffield, and published in 1865. It covered the cases from the first down to and in- cluding those in volume 14 of the reports.
In 1868 James Simmons' first digest appeared. It covered the cases in volume 20 of the reports and all earlier ones. In 1874 this was continued by a supplement covering volume I, Pinney's reports, and volumes 21-31, Wisconsin. Besides digest matter proper, it con- tains the rules of the supreme court, rules of the circuit courts, "old rules," rules in equity, and a table of cases criticised. A second supple- ment followed in 1879, covering the cases in volumes 2 and 3. Pinney, and volumes 32-43, inclusive, Wisconsin. It also contained a table of cases criticised.
"Simmons' new digest of Wisconsin reports from the earliest period to the year 1885, containing a full and complete digest of volumes 44 to 61, inclusive, of the official reports of decisions of the Wisconsin su- preme court, together with a complete condensed digest of all earlier volumes, with reference to the statutes and a brief index to volumes 62-65," was published in 1886. This also contains a table of cases criti- cised. A second volume, in continuation, was published in 1892, cover- ing volumes 62-76 of the reports, and bringing the table of cases criti- cised down correspondingly.
Mr. Simmons has earned the gratitude of his professional brethren by the service rendered in the preparation of his digests. His labors
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have been appreciated, and but for the limited market for such books. would have been fairly compensated, as compensation to writers of law books goes. The "new digest," mentioned above, was not as satis- factory as the original volumes because it was, so far as the cases cov- ered by such volumes are concerned, a digest of the preceding digests. But notwithstanding this fact, Mr. Simmons' work has been unusually free from serious errors; his statements of propositions of law have been, clear, and his classification has been in conformity with that of the best digests and the average sentiment of the profession.
In 1883 Charles E. Shepard and Thomas R. Shepard, of the Mil- waukee bar, completed the preparation of a digest of the Wisconsin re- ports from the earliest reported cases to volume 57 of the reports. This was published in two volumes; volume I being the digest proper, and volume 2 containing a table of Wisconsin cases, showing their subsequent citation by the court; a table of reversed titles of such cases, a table of other than Wisconsin cases cited by the supreme court, and a table of statutes construed.
The authors of this digest performed a vast amount of work in .its preparation. Their statements of propositions are concise and nearly always clear. They were not, however, content to follow the most approved methods of classification, but introduced several novel fea- tures. Principally because of the suggested deviation from the classifi- cation with which the profession was familiar their digest did not meet with the favor which it otherwise would have received. The Messrs. Shepard were close students and at their former residence in Fond du Lac, as well as while they were in Milwaukee, had a considerable prac- tice. They left Wisconsin some years ago for the Pacific coast.
In 1883 the first Wisconsin index-digest made its appearance. Though its author was not a Wisconsin man mention of the work is necessary to be made for the sake of the completeness of this chapter. The author, Merritt Starr, of Chicago, produced a book which long remained in favor, especially with the younger lawyers. In 1889 a supplement to the foregoing, prepared by Geo. W. Burnell, judge of the third circuit, was published: It covered volumes 55-73, inclusive,
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beginning where the other left off. In 1895 Judge Burnell prepared a second edition of his supplement, covering the reports from volume 55 to 87, inclusive. His work has met with a very favorable reception, and, with Mr. Starr's volume, is now in very general use.
In 1876 a volume of 318 pages entitled "Table of cases decided by the supreme court of the state of Wisconsin, and reported in" Burnett, Chandler, Pinney and Wisconsin reports, 38 volumes, by William W. Wight, of the Milwaukee bar, was published. While the work was all that the title indicates, it was much more, as the following extract from the preface shows: "The idea of the compiler has been to furnish the judicial history of every case found in the Wisconsin reports, from Burnett to the recently issued 38th volume. To this end an alpha- betical list of these cases has been prepared, each one being succeeded by a reference to the page in subsequent volumes where that case has been commented upon or followed by the court, mentioned by the reporter or appealed to by the pleader." The work was well done and served the purpose for which it was prepared.
LOCAL TREATISES AND FORM BOOKS.
Edwin E. Bryant is the author of "a treatise on the civil and criminal jurisdiction of justices of the peace, and the powers and duties of con- stables in executing process in the state of Wisconsin." This was originally published in 1884 in a volume of 1019 pages. This work has been partially revised from time to time by adding references to the later laws and decisions. Besides covering the jurisdiction of justices, Mr. Bryant has written of the substantive law, given a summary of the law of evidence, and very many forms. His work has been very satisfac- tory, as is shown by the continued demand for it and the fact that it has held the field without a rival.
Mr. Bryant has also prepared a book of "forms in civil actions and proceedings in the courts of record of Wisconsin." It was prepared, says the preface, "to illustrate the lectures and instruction given in code practice in the college of law of the University of Wisconsin. It does not attempt to furnish a form for every class of cases that may arise in
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practice. But as those in most common use are given, and as many of them, framed upon our statutes, can be found in no other collection of forms, the book will be of use to the practitioner in our courts of record as well as to the student." That this work has more than met the modest expectations of its author is apparent from the fact that by 1894 a third edition of it was published.
Mr. Bryant completed, in 1898, a treatise on code practice in civil actions under the Wisconsin code. This work is more especially de- signed for judges and lawyers.
Besides being the author of the works referred to under this sub- title Mr. Bryant has written two which are mentioned under another subdivision, and various notes of lectures for use in the college of law.
As early as 1853 William T. Butler, then judge of the county court of Jefferson county, prepared "a treatise on the probate jurisdiction and practice of the county courts of the state of Wisconsin with an appendix of forms framed in accordance with the revised statutes and subsequent session laws." The work contained 222 pages and was published in 1853. The older lawyers speak very favorably of its merits.
George Gale, formerly of the Walworth county bar and later judge of the sixth circuit, was probably the first man in Wisconsin to prepare a law book. As early as 1846 he caused to be published a Wisconsin form book, which was revised and republished in 1848, 1850 and 1856. The writer has access only to the edition of 1850, which is entitled "practical forms, with notes and references; adapted to the revised statutes of Wisconsin; being a convenient manual for men of business, attorneys, sheriffs, constables, town officers, and justices of the peace."
"Special statutory proceedings before courts and judges in Wiscon- sin, with forms, including habeas corpus, certiorari, and voluntary as- signments." is the title of a work of 203 pages prepared by George Gary, and published in 1895.
Joseph F. McMullen, formerly of the Milwaukee bar, is the author of a form book which has passed through its fifth edition. The writer is not familiar with the first and second editions, and does not know the dates of their publication. The third edition, copyrighted in 1863. is
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entitled "The new Wisconsin form book; a compendium of legal and practical forms, with principles of law, adapted to the statutes of Wis- consin, including a digest of amendments and judicial decisions, de- signed for the use of business men, county and town officers, the legal profession, and all classes in the community, to which are added com- plete official forms and instructions under the recent bounty and pen- sion acts." The title page of the fourth edition, copyrighted in 1873, varies a little from that quoted. To the later impressions of it was added a "supplement to conform the work to the revision of 1878 and the laws of 1879," etc. The fifth edition, adapted to the revised statutes of 1878, was prepared by William W. Wight, of the Milwaukee bar, and published in 1884.
"Charles M. Scanlan, LL. B., of the Milwaukee bar," is the author of a work of 150 pages entitled "Law of hotels, boarding houses, and lodging houses, particularly adapted to the state of Wisconsin." This was published in 1890.
LEGAL BIOGRAPHY.
"The bench and bar of Wisconsin: History and biography, with portrait illustrations," is the title of a work prepared by Parker McCobb Reed, and published in 1882. It contains 542 pages.
H. A. Tenney and David Atwood prepared the "memorial record of the fathers of Wisconsin; containing sketches of the lives and careers of the members of the constitutional conventions of 1846 and 1847-48; with a history of early settlement in Wisconsin." This was published in 1880, and contains 400 pages. While not confined to biographical sketches of lawyers, it contains brief mention of all members of the profession who were members of either of those conventions.
LOCAL LAW JOURNALS.
The first local periodical devoted to the publication of legal intelli- gence was The Wisconsin Legal News. The first issue of the weekly was dated October 17, 1878. The first number of the daily probably appeared a few days earlier. The main purpose of the periodical was to
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furnish the profession with copies of the opinions of the supreme court. So much of the space of each number as was necessary to present such opinions within a short time after they were filed was devoted to that purpose. The remaining space was occupied by miscellaneous matter of interest to lawyers, including selected cases from other courts. The Weekly News was continued from 1878 to 1883, and makes five quarto volumes. The last number bears date September 20, 1883. It was then, apparently, discontinued, and the Daily News, which had been published primarily for the advantage of the Milwaukee bar from the time of the establishment of the weekly, was continued from September 26, 1883, until July 3, 1884, on which date the last number appeared. Samuel Howard, of the Milwaukee bar, was the editor and the Wiscon- sin Legal News Company the publisher of both editions of the Legal News. The daily published the syllabi of the opinions of the supreme court the day after they were filed and this information was sent to the weekly subscribers in advance of the publication of the opinions.
On the 27th of April, 1895, there was published in Milwaukee vol- ume I, No. I, "Wisconsin Legal News," a four-paged paper, containing a number of opinions of the supreme court, and miscellaneous matter relating to legal affairs. The name of Horace P. Henderson appeared as editor. The journal was to be published weekly. Three numbers were issued under that name, the two later ones containing six pages each. The issue for May 18 was changed to the "Wisconsin Legal Re- porter," and two succeeding numbers followed it. These were enlarged to eight pages. The last issue was dated June 1, 1895.
Though "The Law Library," a monthly review of legal literature, was not designed to be local in its scope, it may be mentioned here be- cause the single number of it which appeared was published in Milwau- kee, Lewis Bohn being the publisher. The declared object of the paper was to furnish critical reviews of law books, bibliographical lists, and index to law periodicals. The first and only number (dated April 15, 1892) contained reviews of late books over the signatures of Geo. W. Warvelle, J. R. Berryman, H. Campbell Black, Prof. C. G. Tiedeman, and W. W. Thornton.
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The "Wisconsin Bench and Bar" made its first appearance under date of April 14, 1898, the place of publication being Milton, Wis., and Mrs. Alric S. Blount being editor. The contents of the weekly numbers issued up to the time of writing this include contributed articles, clippings from exchanges, reviews of new books, selected opin- ions, abstracts of current Wisconsin cases, addresses on legal topics, etc.
TRIALS.
Wisconsin is not rich in the literature of trials. The public affairs of the state have not often been so conducted as to demand legislative in- vestigation or prosecution for defalcation or other maladministration. In the main, the discharge of judicial functions has been committed to pure-minded men. But once has there been a trial before the senate as the high court of impeachment; that resulted in an acquittal. The impeachment proceedings against Levi Hubbell, judge of the second judicial circuit, furnished the state its most celebrated trial, and the report of that trial is the most valuable and sought after book of the kind in the state, and, perhaps, in the northwest. The eminence of the counsel engaged in that cause have given, in large part, that report its value. E. G. Ryan appeared on behalf of the managers and Jonathan E. Arnold and James H. Knowlton for the defendant. The managers, on the part of the assembly, were H. T. Sanders, G. W. Cate, J. Allen Barber, P. B. Simpson and E. Wheeler. The report, by T. C. Leland, published in 1853, contains the charges, evidence, arguments and other proceedings in full.
A case which excited the greatest popular interest and threatened most seriously to result in armed conflict was that known as Bashford vs. Barstow, which was heard and determined in the supreme court in 1856. The proceeding was in the nature of a quo warranto filed by the attorney general on the relation of Coles Bashford vs. Wm. A. Barstow, and involved the right to the office of governor. The eminence of counsel in that case,-Timothy O. Howe, E. G. Ryan, James H. Knowl- ton and Alexander W. Randall, for Bashford; Jonathan E. Arnold, Harlow S. Orton and Matt. H. Carpenter, for Barstow-the novelty of
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the question involved and the partisan feelings existing, all gave to it very much of interest. The report of the proceedings-though made from newspaper accounts-is sufficiently full for practical purposes. The arguments of counsel were generally revised by themselves, and the whole work examined and revised by Judge Abram D. Smith. The publication was made pursuant to legislative action.
The trial of Sherman M. Booth for seduction is said to have been the result of the litigation which grew out of the attempt to enforce the fugitive slave law. It occurred in the Milwaukee circuit court before Judge McArthur. The case was prosecuted on behalf of the state by Dighton Corson, district attorney, and E. G. Ryan, and defended by H. L. Palmer and Matt. H. Carpenter. The reports of the trial, published in Milwaukee in 1859, contain the arguments and other proceedings in full.
The only other reported trial occurring in the state of which the writer has knowledge is that of David F. Mayberry for the murder of Andrew Alger. The trial took place in the Rock county circuit court before Judge Doolittle, July Ioth and 11th, 1855, and contains the arguments of the attorneys-Geo. B. Ely, district attorney, and David Noggle for the state, and James M. Loop for the defense, and an account of the defendant's death by a mob.
GENERAL TREATISES AND DIGESTS.
Judge W. F. Bailey, of Eau Claire, while on the bench of the seven- teenth circuit, wrote a treatise on "The Law of the Master's Liability for Injuries to Servant." This was published in 1894, and at once com- manded the attention of that large portion of the legal profession inter- ested in litigation of the character of which the work treats. It is a vigorously written book; the author's opinions are expressed with con- siderable force, and opinions which do not conform to his are unhesitat- ingly combated. The work soon obtained a large sale, and has been frequently cited in judicial opinions.
In 1897 the work referred to was supplemented by one entitled "The Law of Personal Injuries Relating to Master and Servant," which was
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prepared to give the expressions of the courts on the subject "and prop- erly arrange them." This work was published in two volumes. It has met a professional want, and been correspondingly successful.
John R. Berryman's first independent effort in the preparation of a law book resulted in the publication, in 1888, of "A Digest of the Law of Insurance; being an analysis of fire, marine, life and accident insur- ance cases adjudicated in the courts of the United States, England, Canada, Ireland and Scotland, including the cases relating to insurance in mutual benefit societies." This work was a continuation of a volume prepared about ten years before by O. B. Sansum.
In 1893 a second edition of Judge J. G. Sutherland's great work on the law of damages was published in three volumes. This was mainly prepared by Mr. Berryman, who has also written general articles for the American Law Review, The American Law Register and The Cen- tral Law Journal.
Edwin E. Bryant is a successful writer of law books. His efforts -have mainly been confined to local books, as is indicated in another subdivision of this chapter. In addition, however, he has written "The Law of Pleading Under the Codes of Civil Procedure; with an introduc- tion briefly explaining the common law and equity systems of pleading. and an analytical index, in which is given the code provisions as to pleading in each of the states which have adopted the reformed pro- cedure." This work, the preface explains, is intended rather as intro- ductory to than a substitute for, the more exhaustive treatises on the law of pleading. It was published in 1894, and has met with a favor- able reception from students and instructors.
In 1895 there was published a work entitled "The Outlines of Law." which Mr. Bryant prepared. Its aim "is to give the student a glimpse of the general framework of our jurisprudence, so that he may perceive the relation of each (legal) subject to the whole, and refer each branch or topic of the law to its elementary principles and appropriate place in the system." The work was designed for students.
John B. Cassoday is the author of a work entitled "The Law of Wills: being a series of lectures on the subject of wills delivered before the col-
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lege of law of the University of Wisconsin." This work was published in 1893. The preface says: "The contents of this book are taken from a series of lectures delivered to the senior classes of the college of law of the University of Wisconsin. With some hesitancy the publication is allowed, in deference to a seeming desire of students and alumni. The want of time to revise, extend and enlarge the work, so as to be of more service to the profession, is regretted." This work has continued to be the text book on the subject of which it treats in the local college of law. It contains a large amount of law, and considers the leading cases on the subject. The profession would have been pleased if the learned author had given his own views on many of the questions treated of. Judge Cassoday's learning in that branch of the law is extensive, and a presentation of it would have been highly valued by lawyers and jurists. But the work was prepared for students, and circumstances forbade the author from putting it in a form which would better have comported with his abilities and scholarship.
"The Road Rights and Liabilities of Wheelmen," is the title of a book written by George B. Clementson, of the Grant county bar, and published in 1895. Mr. Clementson, with undue modesty, hesitates to call his production a monograph, and says that it was not his object "to make a treatise or compilation for the use of lawyers, for at present they probably have but infrequent need of reference to an essay of the kind. Yet in case the necessity for research along the present line should arise, he believes the practicing attorney will find herein something for his brief." This book was a pioneer in its field, and in its preparation there was expended a very considerable amount of labor, and judgment and literary taste were abundantly exercised. Many books far more pre- tentious in character possess less merit. As the first attempt of a young man, though it be conceded that he has unusual power, the work is highly complimentary.
George Gary, of the Oshkosh bar and former judge of the Winne- bago county court, was the first resident of Wisconsin to write a treatise upon a legal topic. His work, entitled "the law and practice in courts of probate under the statutes and decisions of the supreme courts of
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Wisconsin and Minnesota," was published in 1879. The work also con- tained 152 pages of forms. Its reception by the legal profession was cordial, and its usefulness was more fully disclosed as time passed. In 1892 a second edition, revised by the author, was published. This was extended to include the statutes and decisions of Michigan, and, like every second edition ought to be, was an improvement on the first. The work is a monument to the learning and industry of Mr. Gary, especially in view of the adverse circumstances (caused by defective vision) under which it was prepared.
Burr W. Jones, of the Madison bar, is the author of a work which has given him an extended and enviable reputation, and which promises to increase his reputation in both these respects. It is entitled "The Law of Evidence in Civil Cases,", and was published in three 12mo volumes in 1896. No work of recent times has been more favorably written of by the reviewers, American and English, than this.
William G. Myer, of Madison, has been connected with more law books than any other Wisconsin writer. Because he has not been ad- mitted to the bar in this state a biographical sketch of him is given here in connection with the works of which he is the sole or co-author. Mr. Myer was born in Rush county, Indiana, in 1845. His parents went to Illinois when he was eleven years old, and settled on a farm in La Salle county, near Ottawa. He remained on the farm until he was twenty-one years old, attending the country school during the winter months, when work on the farm permitted. His education, beyond the merest rudi- ments, was obtained after he was of age, through his own unaided ex- ertions.
He attended one term at Fowler Institute, Newark, Illinois; took the course at Bryant & Stratton's commercial college, at Chicago, and afterwards took a two years' course at the state normal university of Illinois. On leaving the normal university, in 1869, he became principal of the schools at Loda, Illinois, where he remained three years, during which time he began studying law, and was admitted to the bar in Missouri in 1872, opening an office in St. Louis, where he remained until the spring of 1881. Soon after settling in St. Louis he met the late W. J.
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