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teachable. The editor has, however, yielded somewhat to the temptation to include cases turning on the construction of particular phrases, and cases from his own bailiwick, the state of Illinois, even where local statutes are involved. The order of cases has been somewhat improved for teaching purposes by grouping those on particular points instead of adhering to the chronological development of the whole topic where the topic is a large one. Here again it is difficult to strike a balance between the demands of orderly research and the limitations of classroom progress. Neither, however, seems to justify placing Pells v. Brown (1620) and other authorities-largely Illinois cases-on the development of indestructible springing and shifting uses before Chudleigh's case (1594) and others on contingent remainders and their destructibility. In the Moot case on page 121, Mr. Kales himself shows the proper historical relationship, and no pedagogics appear to demand a reverse order.

Mr. Gray's second edition is ten years old. A considerable readjustment of the sixth volume has long been impending. The army of lawyers who have sat at his feet and mourn his death have every reason to appreciate Mr. Kales' endeavor, to quote from his preface, that his master's "collection of cases and his analysis of the subjects dealt with shall continue to live and serve the great body of law students of the Country."

Boston

CHARLES F. DUTCH.

(Modern Criminal Science Series.)

Criminal Sociology. By Enrico Ferri.
Boston, Little, Brown & Co. 1917. pp. 577.

We owe a considerable debt of gratitude to the learned translators, each of whom has suffered an untimely death, Joseph I. Kelly and John Lisle, for their well-performed task in translating for us this work, so well known abroad, by Enrico Ferri, sociologist, socialist leader in the Italian parliament and Professor of Criminal Law in the University of Rome. A first small edition of this book appeared in 1884; an English abridged translation, for years on the shelves of our libraries, has most inadequately represented the scholarship which marks the author's work.

To identify the author better we may use the very well-phrased paragraph from the editorial preface: "Ferri may be regarded as Lombroso's most distinguished pupil, and, in a sense, as a continuer of his work, though supplementing it on the sociological side and giving it a greater breadth than Lombroso himself showed. Ferri's work on Criminal Sociology may be regarded, therefore, as epoch-making, in bringing together the anthropological studies of Lombroso and his own work in criminal statistics and in criminal law, resulting in the founding in Italy of a new school of positive criminal law, of which Ferri is himself the chief exponent."

Ferri covers a large field in his work, and covers it with distinction, using a vast array of facts and showing familiarity with the views of many authors. Indeed it is his orientation of his own point of view in relation to other writers and his occasional, but not overdone, discussion of the conflicting theoretical schools of criminology that makes the perusal of his treatise an intellectual treat. And his dissertation is altogether to the point, for the last part of the volume consists of seven chapters under the caption of Practical Reforms-a well-balanced consideration of the machinery of public justice and penal administration.

Of course it is impossible to offer here in detail any account of these proposed reforms or of Ferri's theories, to which he so tenaciously clings. He lays stress all through on his fivefold classification of criminals, on certain

sociological laws which he believes determine the crime out-put of society and he emphasizes approvingly the clinical attitude towards the individual problem. Thus he brings together several points of view.

There is a good deal of shrewd common sense distributed throughout Ferri's handling of his many topics, e. g., while he says that, given social conditions as they are, the criminal act may be, and often is, an act determined by necessity on the part of a person inevitably predisposed by nature to crime, nevertheless the State has also its own predetermined necessities. If the criminal says to the State, "Why do you punish me for an act from which it is impossible for me to abstain?" the State can reply, "For the sole reason that I likewise am unable to abstain from punishing you in the defense of law and society." Then also Ferri insists wisely that crime is always the product of the nature of the man plus the environment. And particularly valid is his emphasis on the fact that is growing more and more apparent, that "neglected childhood is the source and seed of habitual criminality and recidivity."

While respecting the eminent soundness of much that appears in the work, fairness to the science of criminology as it has now developed demands at least some remark on the limitations of Ferri's conclusions. In the first place he writes about material derived almost entirely from the Latin races and, then, while he freely acknowledges the part that study of the mind must come to play in criminology, his data of mental life are a hundred-fold less complex than modern studies in psychology show. Strangely naïve is Ferri's repeated statement that when he goes out into the practical field he can pick out types, especially the murderer type-"I distinguished it in one young soldier out of seven hundred." Of course we are well aware that America does not correspond at all to Italy in the findings of stigmata among the population, but generalizations should hold true in other than one's own locality. Nowhere do we find students here so easily passing on past or present conduct possibilities in the individual, even of peculiar appearance. The reviewer confesses, too, that Ferri's attempt to formulate a "Law of Criminal Saturation" lacks impressiveness because its statement that—"in a given social environment with definite individual and physical conditions a fixed number of delicts, no more and no less, can be committed"-is so broad that the modifications of a delinquent's career which may be made and which do lessen crime are included— of course they form from their very inception part and parcel of the social environment or the individual or physical conditions.

The true value of such work as Ferri's in criminological science is at the present day to be estimated only in light of the fact that modern studies of the mental life concerning native capabilities, traits, and dynamic experiences present a new phase of the subject which in its direct applicability to the individual problem and hence to the prevention of crime in general overshadows in practicability all other and, particularly, theoretical considerations.

WILLIAM HEALY

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It is now our purpose to undertake an analysis of numerous declaratory actions and judgments, with a view to determine the scope of and the limitations upon this useful form of procedure. An examination of declaratory judgments in the various jurisdictions in which the institution has been adopted reveals a remarkable similarity of fundamental principles characterizing the practice of making judicial declarations. As our interest is confined to the practice, emphasis will be laid not upon the decision itself as a matter of substantive law, but rather upon the type of question submitted for declaratory judgment, the cases in which such judgments are rendered, and the limitations placed by the courts upon the exercise of the power to make declarations of rights and of other jural relations.

COMBINATION OF ACTIONS

It has already been noted that under the practice in England it is usual to combine with the request for a declaration a request for an injunction or for damages where coercive relief is obtainable and desired. Under the Act of 1852, this was the only kind of case in which a declaration could be made, although the plaintiff was not required to ask for coercive relief. Under the rules of 1883, however, the limitation that coercive relief must be obtainable has been removed, so that declaratory actions may now be instituted in which no injunction or damages could be obtained.

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Yet there is a decided advantage in combining the request for coercive relief, when desired, with a request for a declaration. It may easily happen, for example, that the injunction requested is not granted on the merits; and in our American practice the bill would then be dismissed with costs, for the denial of the injunction leaves no alternative. In the English and Scotch practice, however, the additional request for a declaration does leave an alternative, and it is constantly employed by the courts. By declaring what are the jural relations of the parties, the necessity for further litigation is usually obviated and all the purposes of coercive relief will have been served. For example, the P. & O. Steamship Co. brought an action for a declaration and injunction against a dock company to have declared illegal and to enjoin the enforcement of certain regulations and charges in respect to certain docks which the steamship company mnight at some time need. The steamship company during the trial evidently decided to abandon the prayer for the injunction but the proceedings continued and the court made a declaration, as requested, that the regulations were illegal; and this declaration served all the purposes of the steamship company.137 So the court may, in the exercise of its equitable discretion, refuse an injunction where it believes the interests of justice do not require it, and grant a requested declaration in its stead. Thus, in a case where the sewer of a municipal corporation emptied into that of another under an agreement held ultra vires, the court considered the great inconvenience of suddenly closing a sewer in daily use and refused the injunction, but declared the plaintiff's right to relief with leave to apply for an injunction after a reasonable time, should the defendants fail to make other arrangements.188 In another case, while declaring a certain act a trespass, the court refused to enjoin it as too trivial for an injunction.“ The request for a declaration may also be used, alone or with a prayer for further relief, in a counterclaim.

The practice mentioned above of requesting a declaration as an alternative remedy is explained by the fact that if not claimed, it will not as a rule be grand. There is, therefore, much to gain and nothing to lose by asking it. In one important case, an exception to the general rule, a declaration was made although not requested.140 In this case a mining company had by its negligence caused the water in a canal to become polluted and to subside to such an extent that an

1 London Assn. of Shipowners etc. v. London & India Docks etc. (C. A.) [1892] 3 Ch. 242. See also Atty. Gen. v. Merthyr Tydfil Union (C. A.) [1900] 1 Ch. 516.

138

Islington Vestry v. Hornsey U. C. (C. A.) [1900] Ch. 695. See also Grainger v. Order of Canadian Home Circles (1914) 31 Ont. L. Rep. 461

130 Llandudno U. D. C. v. Woods [1899] 2 Ch. 705.

140

Evans v. Manchester, Sheffield & Lincolnshire R. R. (1887) 36 Ch. D. 626.

adjoining mill-owner was damaged by the escape of water into his mill. Inasmuch as certain remedial procedure had been provided for by statute, the court refused an injunction but put its finding in the form of a declaration of the defendant's liability for the damage caused, both present and future. Nor will a court, as a rule, make a declaration different from the one requested. The declaratory judgment is not an equitable remedy141 which the courts can adjust or grant conditionally according to the "equities"-to the justice of the case.142 Unless put in the form of a general question on originating summons for the court's determination, it is either categorically granted or refused. A complaint, therefore, frequently contains a request for several declarations, some of which may be granted and others refused. The Indian courts, while putting these rules into practice,143 have claimed the privilege of altering a declaration requested to suit the circumstances.144

It will be recalled that under the Indian Specific Relief Act, 1877, a declaration cannot be granted in a case in which the plaintiff could have requested further relief by way of injunction,145 damages, or claim to recover possession of property 146 This resembles the practice of the German Supreme Court and is of interest as representing the antithesis of the former English practice under the Act of 1852, this being the only kind of case in which a declaration could be made.

While the German practice now admits in principle the possibility of combining the declaratory with the executory action, the fact is that this is done only when by the declaratory action a distinct end is to be achieved; for example, in cases of continuing injury, the plaintiff may seek damages for the injury that has occurred and a declaration of liability for the injury that may occur in the future;' or a plaintiff may sue for a declaration of the defendant's liability (technically, duty), although the injury is complete, if he is unable at the moment accurately to estimate his damages.148 Yet it is the rule that when the executory action is feasible, a plaintiff will not be

10

18

.147

See Farwell, L. J., in Chapman v. Michaelson (C. A.) [1909] ↑ Ch. 238, 243. A possible exception may be found in the case of Honour v. Equitable Life Ass. Soc. [1900] I Ch. 852, in which the declaration was refused on the defendants undertaking not to avail themselves of a certain defense, although it is not at all clear that the court made this a condition.

148

1a Nobin v. Nilkamal (1916) 25 Calcutta L. J. 537, 545; Hemendra v. Upendra (1915) 43 I. L. R., Calcutta, 743, 766.

Abhoy v. Kelly (1880) 5 I. L. R., Calcutta, 949.

1a Nauji v. Umatul (1912) 15 CALCUTTA L. J. 724. See also supra, p. 29. 10 Jibunti V. Shibnath (1883) 8 I. L. R., Calcutta, 819.

147

(1889) 23 R G, 346, 348; (1898) 41 R G, 369, 372.

Gaupp-Stein, op. cit. 613, n. 100. Indeed, in such cases the declaratory action must be brought if the plaintiff wishes to stop the running of the statute of limitations. (1913) 83 R G, 358.

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