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In other words, what is called by the misleading term " equitable lien" is really a compound of some equitable right, usually of specific performance, to have a claim paid out of property, plus the general equity doctrine as to the enforcement of equities against volunteers or persons taking with notice. The basic equitable right should be treated under the appropriate topic, and the effect upon subsequent owners of the property should be treated under the general topic of notice or the rights of purchasers. To devote a chapter to equitable liens," without an adequate analysis of the theory, leads the student to believe that the cases discussed in that chapter rest upon some special and even mysterious foundation, instead of being merely instances of the application of elementary rules. That the danger just pointed out is a real one, may be seen by a reference to the opinion in Hazen v. Matthews (184 Mass. 388), where a learned and able court was led, in considering the similar doctrine commonly called "equitable easement," to forget that the question was really one of specific performance, and to argue from the false analogy of legal easements; a fact which the court has since admitted. See Bailey v. Agawam National Bank, 76 N. E. Rep. 449 (Mass., 1906).

Perhaps the difficulty with these cases of so-called equitable liens has been partly caused by the narrow view taken by some English judges of the scope of specific performance. Lord Selborne, for example, limited the term to the enforcement of contracts for the execution of some further instrument, like a deed, which instrument is finally to define the rights of the parties. The specific enforcement of duties arising from other contracts, he said, was not properly called specific performance. See Wolverhampton, etc., Railway Co. v. London, etc., Railway Co., L. R. 16 Eq. 433. See also Tailby v. Official Receiver, 13 App. Cas. 523. The result of a contract, not that legal security shall be given, but that certain property shall stand as security, must be explained, by a person adopting the view of Lord Selborne, upon some principle other than that of specific performance. The favorite explanation is to assume some unnamed and perhaps imperfect equitable duty to arise, then to apply the maxim "Equity regards as done that which ought to be done," and to say that the result is an equitable lien, which may be foreclosed, or, to put it more exactly, enforced, by a bill in equity. But it is submitted that this reasoning is artificial, and unnecessary for the explanation of the doctrine.

These criticisms, however, are quite debatable, and are in one sense minor criticisms, since they do not necessarily involve any difference in the practical result of the doctrine. The text is so good, and the editing so well done, that the present writer would not be understood as trying to detract from the work any of the credit to which it is so justly entitled.

The editor has been, perhaps, too conscientious in separating the author's notes from his own, and in making no material changes in the original text. That text was generally so sound and comprehensive in its statements that there has been little need of change; but the existence of two sets of notes is by no means an unmixed blessing. Other things being equal, a new law book is better than an old one brought down to date. In a new book the text is written with the latest development of the law in mind, the notes bear the proper relation to the text, and the arrangement of the page is such as to present the prominent features of the subject at first sight. In an old book which has passed through many editions the original text is retained, unless it has become absolutely wrong; and in many cases the present state of the law can be found only by examining the cases accumulated in a mass of notes by successive editors. In Pomeroy's Equity this has not become a great fault; but a revision and consolidation of the notes would, it is believed, have improved the book for use. Nowadays we use encyclopedias and general digests to find the cases which we cite to the court as authorities, and the citation of textbooks as authorities is rapidly becoming obsolete. A text-book must survive, if at all, by virtue of its strength of reasoning, power of analysis, and clearness of statement, and it is submitted that no text is too sacred to be altered so as to present, in the simplest and clearest way possible, the full product of the latest discussions and investigations.

The addition of the two volumes of "Equitable Remedies," by John Norton Pomeroy, Jr., appears to be a business mistake. These volumes restate and amplify the doctrines laid down in the fourth volume of the "Equity Jurisprudence." The purchaser should not be compelled to buy the same thing twice. Either the two volumes of "Equitable Remedies" should have been published separately, or the treatment of equitable remedies contained in the fourth volume of the "Equity Jurisprudence" should have been omitted.

Despite the criticisms that have been ventured, the work remains, what it has been for twenty-five years, one of the few masterpieces of our legal literature.

H. T. L.

CONDITIONAL AND FUTURE INTERESTS, AND ILLEGAL CONDITIONS AND RESTRAINTS IN ILLINOIS. By Albert Martin Kales. Chicago: Callaghan and Company. 1905. pp. xliv, 753. 8vo.

The appearance of numerous and exhaustive digests and encyclopedias of general law has during the past few years driven the ordinary text-book from its place as a compendium of law or collection of decisions. It is rare, indeed, that a text-book can, like Wigmore's Evidence, compete on such lines with the encyclopedias. To this, perhaps, is due the fact that writers of text-books are turning more and more to highly specialized branches of the law and to microscopic analysis of legal principles and decisions. Kales' Future Interests is a striking example of a book of this type. The author has treated the law of future interests in Illinois from the standpoint of one who is fully as much interested in what the law should be as in the actual state of the law.

The avowed purpose of Professor Kales has been to educate the bar of Illinois to proper appreciation of Professor Gray's two works on the Rule against Perpetuities and Restraints on Alienation. Whether the book will have the hoped-for effect, to any great extent, may well be doubted. That it will be useful and used by the bar of Illinois seems, however, to be certain. The author has taken all the law of Illinois on future interests and subjected it to an exhaustive analysis, examining all the important decisions in detail and discussing many disputed or undecided questions of local law, the solution of which still lies with the Supreme Court of Illinois. As this is almost entirely new ground, and many of the questions discussed are of great importance, the discussions are exceedingly useful, particularly that concerning the extent of the landlord's right of entry on forfeiting a lease for breach of condition. See §§ 41-61. Another instance of valuable and interesting discussion appears in §§ 137-156, taking up the validity of shifting interests by deed in Illinois. In point of fact, Professor Kales' book is full of meat to the practicing lawyer, who will find many important questions skilfully briefed for use in argument.

The law of real property, however, demands, more than any other branch of the law, settled rules and decisions. It is generally more important to the lawyer who must pass in his opinion upon real estate titles that there shall be no disturbing questions concerning the title than that the law shall be a harmonious whole or that all decisions shall be correct. Professor Kales does not, perhaps, give this consideration sufficient weight. Repeatedly he argues that certain seemingly well-settled doctrines should be overthrown. The doctrine of Gebhardt v. Reeves (75 Ill. 301) is a case in point. It is doubtful if any Illinois lawyer would hesitate to advise a client that on the vacation of an accurate statutory dedication, the fee reverts to the dedicator or his heirs. The Supreme Court has always assumed this to be the law. See Village of Hyde Park v. Borden, 94 Ill. 26. In fact, the great number of decisions in which the Supreme Court has evaded the rule of Gebhardt v. Reeves all by implication admit that it is settled law. Under these circumstances it seems waste labor for Professor Kales to attack the doctrine, and although the argument is interesting enough from an academic standpoint, its usefulness may well be doubted. See §§ 4-10.

Another discussion which is also of a doubtful value is the attack on the case of Pollock v. Maison (41 Ill. 516). As a practical question, this case is good

law. Were it overruled and the mortgagee whose claim is barred allowed to maintain ejectment, as contended for by Professor Kales, there can be little doubt that the legislature would not long allow Section II of the Illinois Statute of Limitations to be thus nullified.

Except, however, this possible leaning toward useless discussion of settled questions, the book offers little room for adverse criticism. Occasionally inconsistencies may be pointed out; for example, in § 2 A it is stated in the text that entry is necessary before action on breach of condition subsequent, while § 30 A, which is referred to in the note, lays down an exactly opposite rule. So, too, in certain instances distinctions are made which would be difficult to apply as practical working rules. Such are the distinctions taken in § 260 as to what is necessary to make a purchaser dominus of the property. As a whole, however, the book is thoughtful, scholarly, and accurate. As the ground which it covers is entirely new, it is remarkable that in general it should present so few points of attack. It has further the added advantage of notes which contain a full collection of all the Illinois decisions on the points involved. This alone would be sufficient to give it great practical value to every Illinois lawyer, while the analysis of the decisions in the text raise its usefulness far above that of even the most complete digest.

R. M.

A MANUAL RELATING TO SPECIAL VERDICTS AND SPECIAL FINDINGS BY JURIES. By George B. Clementson. St. Paul, Minn.: West Publishing Co. 1905. pp. lxi, 35. 8vo.

"At no period in its history has the petit jury been noted for modesty or diffidence, when not liable to be called to account"; and at this date, when the attaint that ancient instrument for effectually concentrating the minds of the jurors upon the facts of the case rather than upon the respective conditions of the parties is no more, the practicing lawyer, especially if he appear for defendants in damage suits, must welcome any manual that clearly defines his privileges with respect to the only means of controlling the sympathy or prejudice of juries, namely, Special Interrogatories and the Special Verdict.

Such a manual Mr. Clementson has produced. After a delightful historical introduction, founded in part upon the treatise by the late Professor Thayer, comes a discussion of Special Interrogatories. The cases in which they may be submitted, their preparation, form, and requisites, are intelligently set forth, followed by an exposition of the effect of the responses of the jury. The rights of the respective parties and the prerogatives of the court at the various stages of the trial are fully explained; and for almost no proposition is one required to accept the ipse dixit of the author, the citation of authorities being commendably complete. The same plan is adopted in the treatment of Special Verdicts. A chapter on Special Verdicts in Criminal Cases completes the work. An appendix with a summary of all the present statutes on the subject, a good index, and a table of cases cited, make the volume convenient for ready reference.

Although the plan of the work is well conceived, the execution is somewhat faulty. For example, the different subdivisions overlap so that in many instances the same legal proposition is adduced and the same cases are cited under several different topics, with the result that one feels that the work might have been accomplished in shorter compass. The book professes to be only a mannual, and the subject is not one which lends itself readily to philosophical treatment. It is perhaps for these reasons that the author has contented himself with presenting the law as it exists, in a treatise which he calls "a collection of fragments," and refrained from advancing his own theories. The statutes and decisions, however, differ so materially in many important respects that some well-reasoned scheme for future legislation might opportunely have been suggested. Yet, though to the student these faults seem serious, to the practitioner they are slight; and it is for the benefit of the latter that the manual is published.

E. M. M.

THE PUBLICATIONS OF The Selden SOCIETY. Volume XX. YEAR BOOKS

OF EDWARD II. Vol. III.: 3 Edward II. A. D. 1309-1310. Edited for the Selden Society by F. W. Maitland. London: Bernard Quaritch. 1905. Pp. xcv, 244.

The Selden Society for the year 1905 sends us another volume of the Year Books; and it is most gratifying to find that this trustworthy and authoritative edition is proceeding without interruption. The whole volume is filled with the cases of a single year, and even then the year is not completed. The cases are not very interesting in themselves. They involve almost without exception obscure points in the law of real estate, so long obsolete that no one but an antiquarian can even understand the meaning of the points under discussion. But if we are not greatly edified by the discussions of the ancient men of law, we may turn to Professor Maitland's introduction, and there find pleasant and profitable instruction. He has again placed legal scholarship under a debt to him for a clear, interesting, and absolutely convincing account of the manuscripts and their probable origin. Further investigation has confirmed his earlier belief that there is not a single original report of the decisions, but that the manuscripts are simply collections, by various hands, of notes taken in court by the apprentices or the younger barristers. A most careful comparison of the same case in different manuscripts with the official roll makes this conclusion irresistible. The books therefore are not always correct, though we can often check them by the roll; and they must be used with some care by the legal historian. But, for all that, they are of inestimable value, not only to the student of English law, but also to the historian of the English people. "If not all of the men who compiled these books were heaven-born jurists, they were not the less human on that account, and their notes and their queries, their mistakes and their perplexities, may teach us more of English law and English life than we could learn from polished treatises." What, for instance, could be more enlightening as to the real Edward I. than this anecdote which Chief Justice Bereford tells, and the lively youth whose manuscript is called Y repeats. Isabel Countess of Albemarle had been summoned to parliament to answer the king "touching what should be objected against her." The king himself took his seat in parliament. Isabel's lawyer then demurred to the writ as too general, and Sir Ralph Hengham sustained the objection. "Then arose the king, who was very wise, and said: 'I have nothing to do with your disputations, but, God's blood! you shall give me a good writ before you arise hence.' A touch like this is worth a volume of writs sur disseisin de quibus or sur disseisin in the per.

J. H. B.

ANCIENT LAW. Its Connection with the Early History of Society and its Relation to Modern Ideas. By Sir Henry Sumner Maine. With Introduction and Notes by Sir Frederick Pollock. London: John Murray. 1906. pp. xxiv, 428. 8vo.

Maine's Ancient Law was originally published nearly half a century ago, immediately after Mill's Essay on Liberty, immediately before Austin's Province of Jurisprudence Determined, in the full tide of triumphant Benthamism. It speaks well for Maine's essential qualities, for his scholarly acumen, his common sense, and his power of expression, that within the last few months no less than three editions of his now classic work have been put on the market by London publishers. The one under review is extremely well printed and enriched with notes by Maine's successor in the chair of Comparative Jurisprudence at Oxford, Sir Frederick Pollock; the only complaint one can make against the publishers is that the index is quite inadequate.

No better editor could be found for Ancient Law than Sir Frederick Pollock, and there is little cause to find fault with the twenty substantial notes he has appended to Maine's chapters. Several small points may, however, be noticed. The claim that Maine was the first to use Homer as a source of information on archaic legal procedure is not correct; more than a century earlier Vico covered this subject at some length. The same writer is left out of account when we

are told that "Montesquieu was the first of the moderns to proclaim that a nation's institutions are part of its history" (p. 174). In dealing with Edward I.'s Statute of Wales it would have been better to explain that the king's object was an administrative adjustment rather than a question of title. Maine was undoubtedly mistaken in his exposition of Rousseau's theory as to the state of nature: his editor might have done better to illustrate the point by quotations, the following being suggested: "The passage from a condition of nature to a civil condition has produced in man a very remarkable change, in substituting justice for instinct as his rule of conduct, and in lending to his actions morality which previously they lacked" (Rousseau, Homme Civil).

Both author and editor have much that is valuable to say on the benefit that the historian may derive from the study of law, and the lawyer from the study of history. R. M. J.

PROCEEDINGS OF THE AMERICAN POLITICAL SCIENCE ASSOCIATION. Held at Chicago, Ill., December 28 to 30, 1904. Lancaster, Pa.: Wickersham Press. 1905. pp. 249. 8vo.

The work of this newly organized association at its first annual meeting was divided among standing committees, each of which was entrusted with consideration of one of the following topics: Comparative Legislation; Comparative Jurisprudence; International Law and Diplomacy; Administration; Constitutional Law; Politics and Political Theory. The volume of reports contains an unusually large number of valuable essays and discussions concerning public questions of present-day interest. Among the papers dealing more specially with legal problems may be mentioned: The Relation of the Executive to the Legislative Power, by James T. Young; The Beginnings of War, by Theodore S. Woolsey; Unneutral Service, by G. G. Wilson; Contraband of War, by Henry Pratt Judson; Government Interference with Industrial Combinations, by E. B. Whitney; The Regulation of Railway Rates, by Martin A. Knapp; Tendencies in the Law of Taxation of Railways, by H. C. Adams.

CRIMINAL RESPONSIBILITY. By Charles Mercier. Oxford: At the Clarendon Press. 1905. pp. 232. 8vo.

This is a little essay by an earnest and intelligent physician on an extremely difficult and intricate portion of the criminal law. The author does not make the mistake, almost universal among physicians who enter this field, of confounding insanity and irresponsibility; he seeks for responsibility where it belongs, in blameworthiness rather than in normal health. But his ignorance of law leads him to the most astonishing generalizations. For instance, he judges "wrong" by "the magnitude of the benefit gained by the actor in proportion to the harm suffered by the victim; the greater this proportion, the less the wrong" (page 72). Responsibility, on the other hand, depends upon the selfishness of the motive. "He must desire primarily to obtain his own gratification by means of the act" (page 155). "If the things stolen are given away, as they sometimes are, to strangers or tramps, and if we cannot find a motive of causing pain or injury to the person robbed, we conclude that, for an injurious act which displays no motive of self-gratification, no responsibility is incurred" (page 156). A test of responsibility which would leave Robin Hood and the Chicago Anarchists unpunished while it would hold accountable the man who selfishly defends himself or his property, is a test which is obviously of no use to lawyers, however interesting the controversy into which it may lead "alienists." Mr. Mercier provides in a way for self-defense by treating it as a case of provocation, but defense of property appears to be beneath his notice.

J. H. B.

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