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The Principles of Equity. A Treatise on the System of Justice administered
in Courts of Chancery. By GEORGE TUCKER BISPHAM. Philadelphia : Kay & Brother. 1874.
Mr. BisPham has produced a volume containing about five hundred pages of text, besides the index and table of cases. It is an attempt, as the preface states, to supply the want of some general American treatise which shall express the development and present condition of equitable jurisprudence. The book is designed for students as well as practitioners. The author truly says that while in England efforts have been made to generalize the progress of the science in several treatises more or less comprehensive, in America the efforts of members of the profession who have devoted themselves to legal literature have been directed to the production of treatises upon particular subjects or the annotation of existing standard commentaries. Among the most popular of the English treatises may be mentioned Smith's Manual of Equity Jurisprudence, which, in 1870, had reached no less than ten editions. This convenient hand-book of perhaps five hundred pages, in large print, may be carried in the pocket, and is, as it professes to be, an abridgment of the large work on equity jurisprudence by the late Joseph Story. The fact that this abridgment should have been founded entirely upon this great work of the American jurist is the highest evidence of the lasting value of that contribution to jurisprudence, and is a new confirmation of the observation of Burke, that in no country in the world was the law so general a study as in America, where “the profession is great and powerful,” and where, as he had heard, “they have sold nearly as many of Blackstone's Commentaries as in England.”
Another is Adams's Treatise in Equity, which, though a work of great learning, is by no means attractive to the student as a text-book.
The work of Mr. Smith is, however, intended entirely as a manual for student and practitioner. It is intended to fix in the mind of the former a general view of the principles of equity, arranged with proper regard to mental perspective, and to provide the latter with a convenient vade mecum, not burdened with authorities or references to text-books, which can be consulted more at leisure. Moreover, no American authorities are cited by Mr. Smith, who confines himself to principles and distinctions laid down in English cases. Mr. Smith also notices the statutory enactments, which are only useful to the English lawyer. When these things are considered, it is evident that there is a place for such a book as Mr. Bispham has proposed to give to the profession.
Law has been defined generally as a rule of action; and, in a narrower sense, jurisprudence is the science which treats of the rules by which men living in communities are governed in their relations to each other. As a subdivision of jurisprudence, equity jurisprudence may be briefly defined to be the body of rules which govern courts of equity in administering that portion of natural justice which is not left to the conscience of the individual, and which is not, or cannot be, administered by the courts of common law, by reason of the inadequacy of the remedies which it furnishes to adjust the rights of all parties without circuity, and the inflexibility of its modes of procedure, originally adapted to a less complicated and less artificial state of society.
Definitio in lege periculosa est, and Mr. Bispham warily contents himself by saying the definition of his subject is a matter of history, and to be derived from a study of the rise, progress, and decisions of the English High Court of Chancery, which “history has become rounded and complete by the passage of the Supreme Court of Judicature Act of 1873,' whereby the judicial system of England has been recast, and the distinction between courts of equity and courts of law abolished.” The former part of this definition, to wit, “the jurisprudence of the Court of Chancery," is the definition of Mr. Mayne ; but we do not think that the passage of the Act of 1873, in England, by which equitable remedies and equitable defences are allowed in all the courts for which that act provides, will put a period to the study of “ equitable jurisprudence” in England, or assist the student of this science in America in deriymg a clear notion of its character or limitations as understood in this country.
The author adopts the general division of the subject suggested by Mr. Spence of equitable titles, equitable rights, and equitable remedies. We have always considered this division as more plausible and superficial than logical and satisfactory, the former head of equitable titles being involved in the second of equitable rights, and both the former in the latter, because equitable titles and rights only exist as recognized by the remedies which the Courts of Chancery afford. The examples which our author gives of each of these divisions, viz., the title of an assignee of a chose in action, the right of one to set aside a sale made by him to a person occupying a fiduciary relation, the equitable remedy by bill for specific performance, illustrate what we have said: the title of the assignee of a chose in action is merely his right to enforce a claim, which he has purchased, against the debtor, and to enjoin the vendor from releasing or interfering with this right; and the remedy of specific performance is merely a recognition and enforcement of a trust in favor of a vendee who has received no deed transferring the property; and trusts are placed by our author first among equitable titles, and defined thus : “ A trust, in its technical sense, is the right, enforceable solely in equity, to the beneficial enjoyment of property of which the legal title is in another.” Ubi jus ibi remedium we know is not true at common law, and of the courts of equity this only can be said, ubi remedium ibi jus, for where the courts of equity cannot give a remedy they recognize no legal right or title.
After an introductory chapter devoted to the rise of the High Court of Chancery, one in which a general outline of equitable jurisdiction is given, and a third containing the maxims more commonly cited, the author treats, under the head of titles, the various kinds of trusts, mortgages, and assignments, in eight chapters; under rights, in seven chapters, are discussed accidents, frauds of various kinds, notice, estoppels, and election, conversion and reconversion, adjustment and liens; remedies include specific performance, injunctions, reformation, &c., discovery, and various kinds of bills. There are twenty-four chapters in all, and although some chapters might as well be placed under a different head, yet the book appears to be well balanced, symmetrical in its construction. Too much space is not devoted to one subject, nor do we think any one has been slighted. We think, too, that a student would get from its perusal a better notion of equity as administered by the courts than from reading Story or Adams, and that it will prove a valuable text-book. As a general thing, the style is easy and lucid, though sometimes the author lacks the precision of statement which distinguishes Mr. Smith. For instance, he speaks several times of enjoining courts of law, although he has before stated that the injunction is but a direction to the individual not to proceed with his suit. How far this book may prove of assistance to the equity lawyer in the place of Story, Adams, and Smith remains to be seen. In the present multiplicity of tribunals having equity jurisdiction, with the various federal and state courts pouring forth volumes of decisions on a variety of subjects every year, it is a task of very great difficulty to read with care and digest the results of the cases. It requires the greatest power of condensation and arrangement to place those results before the student or lawyer in a treatise which shall discuss the principles which underlie each class of cases, and which shall not degenerate into a mere digest. In such a work it is more important, if possible, to leave out than to put in; many cases of isolated character or of doubtful authority have to be disregarded; nor do we find the latest cases on each head cited. The equity lawyer of each state must not expect to find in such a book a work entirely adapted to the practice of his own state, but, supposing him to be acquainted with the conclusions of his own courts, one which will supplement his learning by suggesting the extent to which the principle or doctrine he is examining has been carried in other states. Examined by such tests as these, we think Mr. Bispham's work will prove a valuable addition to American jurisprudence as a text-book for the student; and we think it will assist the labors of the chancery bar in the various states.
The execution of the work is good, the text clear, and the proof seems to have been read with care.
A Treatise on the Law of Judicial and Execution Sales. By David Rorer,
of the Iowa Bar. Chicago: Callaghan & Co. 1873.
The author announces in his preface that “perhaps few branches of the law are of more interest to the public than those of judicial and of execution sales." We doubt very much the correctness of this statement; but even if true, it hardly explains the necessity for the preparation of so elaborate a work for the use of the profession. The rules which govern the sales of property, whether real or personal, under order of court or upon execution, do not in the main differ essentially from those governing ordinary sales, except so far as they are modified by statutes, and these latter differ materially in the different states. It seems, therefore, rather a waste of time and labor to attempt, as the author undertakes, “ to bring these subjects into a system.". And a very elaborate system he makes of it. Judicial sales, i.e., sales made pendente lite, and sales on execution, are throughout separately treated, with separate sets of chapters, involving a consideration of substantially the same questions. These, we think, might, in several instances, be discussed together, with a great saving of space, and without any serious sacrifice of logical accuracy. The subdivision is carried still further, and with less necessity, in devoting one set of chapters to the sales of real property on execution, and another set to the sales of personal property. For instance, under the head of execution sales of real property is a chapter on the writ, the levy, and notice of sale, and a chapter on the sale; while under the head of execution sales of personal property is a chapter on the writ, another on the levy, and another on the sale. The necessary result is that many of the general propositions are repeated almost in the same phraseology, and many of the authorities are twice cited. Aside from this over-elaboration of the system, which may after all appear a merit to some, the work is entitled to commendation for its intelligent discussion of principles and the fulness of its collection of decided cases. We apprehend that it will be of special service in the West, from the fact that the statutes of Iowa and other states in that region are frequently referred to, and cases involving their construction are copiously cited. The style is not always felicitous, and the text is disfigured by reason of very careless proofreading. The mechanical execution of the book is unexceptionable.
A Treatise on the Criminal Law of the United States. By Francis WHARTON,
LL.D. Seventh and revised edition. Three vols. Philadelphia : Kay & Brother. 1874.
We took up these volumes with curiosity. More than twenty years ago the first edition was our familiar friend. We were then a student in an office. It was our wont to puzzle justice, personified in a country squire, by floods of learning poured out in defence of wrongly suspected innocence, staking the meanwhile our reputation upon the correctness of our law. We got that law from the first edition. Years have changed our old friend. We recognize it only by name ; we are not acquainted with it. The book has been rewritten, and we cannot find the passage we were reading when Arabella first entered the office. We too have changed. We have not so much confidence in our knowledge of law. We would not now stake our reputation or much else upon our knowledge of that, or of any thing.
We have given the rewritten work a careful examination, and have been struck by its orderly method and arrangement, and by the ease with which any given subject can be at once found. Moreover, it is written in a clear and concise manner, and appears to be more complete and handier for the practitioner than any other work on the same subject, English or American. We think no lawyer who has much criminal practice can afford to be without it. Questions which require discussion are discussed in a temperate manner, and with much good sense.
Its perusal has suggested some reflections. The subject of criminal law is not an attractive one to the over-fastidious lawyer. Some have been known to take a pride in declaring their ignorance of it. Now, the subject of crime always was, and perhaps always will be, the most momentous question with which the human race has to deal. It is the problem of civilization. One who has not thought upon it has thought but little upon humanity ; and he who has not paid some attention to the criminal law of his country has not received a liberal education. Moreover, the criminal law is the ultimate sanction upon which every human law rests, and the lawyer who confesses his ignorance of it, confesses that he has never yet grasped in its entirety a single legal principle. Those who boast of their ignorance are too wise to take advice; but these volumes are worth the attention of the man of general reading. The subject in its outline and in its detail, with a few exceptions, is easily understood by one having no previous knowledge of law. We are persuaded that any one, student of law or otherwise, who gives these volumes a careful examination will be interested, and will not lay them down thinking that he has spent his time without profit.
Cases determined in the United States Circuit Courts for the Eighth Circuit.
Reported by John F. Dillon, the Circuit Judge. Vol. II. Davenport, Iowa : Day, Egbert, & Fidlar. 1873.
With commendable alacrity Judge Dillon responds to the demand for prompt publication of decisions, furnishing us in the second volume of his reports with the cases decided in his circuit in 1872 and 1873. The reporting is of course carefully done, the statements of cases and the head-notes are as brief as is consistent with accuracy and clearness, and in notes accompanying nearly every case are references to authorities and comments thereon, not necessary, indeed, to the decision of the points in question, but illustrative, and affording means of a more thorough investigation into the principles involved. We cannot commend, however, the practice here adopted of filling out a volume of " cases determined" with charges to juries, which perhaps the learned judge who gave them would decline to adhere to as law after argument and deliberation. We have criticised this several times in less able reporters, and we are sorry that Judge Dillon should lend his sanction to it. Many of the cases included in this volume were presented to the profession soon after their decision through the columns of the legal press. North-western Packet Co. y. Atlee, p. 479, we gave at length in 7 Am. Law Rev. 752, and Commercial Nat. Bank v. Iola, which was decided soon after the decision in the Boston Fire Bonds case, we cited in our notice of that case, 7 Am. Law Rev. 754. Hening v. U. S. Ins. Co., p. 26, is an authority for the validity of an oral contract of insurance. Cox v. Wilder, p. 45, decides (overruling Judge Treat) that as against the assignee in bankruptcy a wife is not estopped to claim dower by reason of her having joined her husband in a deed fraudulent as to his creditors, and which for this reason has been set aside at the instance of the assignee. Illinois 8. St. Louis R.R. v. St. Louis, p. 70, is an interesting case, deciding that where a city corporation, not specially restricted, had dedicated to the public a wharf, for the use of a public wharf, it could thereafter use it, and grant the use of it, for any purpose that falls within the meaning of such a dedication, and for no other, and that the erection by the defendants, under the sanction of the city, of a grain elevator with its appurtenances on the wharf is not such an use as falls without the scope of the dedication, although it interferes with the rest of the public in their use of that portion of the wharf ; but that the city, acting for the public, would have no right to part with its control over any portion of the wharf in favor of a private corporation, and an ordinance granting the use, but not reserving