A Practical Exposition of the Principles of Equity, illustrated by the leading decisions thereon. By H. ARTHUR SMITH. Fourth Edition. London Stevens & Sons, Lim. : lxvii and 871 pp. (218.)

1908. La. 8vo.

In a book intended, primarily at any rate, for students false doctrine should be avoided, so far as is possible, for early impressions are notoriously the most firmly fixed; yet here nearly two pages are devoted to the subject of unilateral mistake, and the conclusion is that unilateral mistake gives a right to relief. We should have thought that that heresy had been finally eradicated by the decision of Farwell J. in May v. Platt [1900] I Ch. 616. Unilateral mistake may be set up in answer to a claim for specific performance, but specific performance is an extraordinary remedy-Scott v. Alvarez [1895] 2 Ch. 603-and many topics are there admissible by way of defence which could not be raised in another form of procedure. Paget v. Marshall (1884) 28 Ch. D. 255, cited on p. 228 with the qualification of but see May v. Platt [1900] 1 Ch. 616; 69 L.J. Ch. 357', was a case of fraud, as we learn from the latter case. Again Van Praagh v. Everidge [1903] 1 Ch. 434 was decided on the Statute of Frauds, and illustrates, further, the different principle that there must be in every contract a consensus ad idem. Again on pp. 54 and 55 we read, 'In order to effect a gift of lands, it is necessary that the transfer should be effected by deed. A feoffment (unless made under a custom by an infant) is void without this evidence.' We do not think we are doing any injustice to the learned author in asserting that the passage quoted can only be construed as involving the position that an infant may make a valid gift (in the ordinary sense of gratuitous conveyance) of lands by feoffment, and it is clear that he cannot do this: In re Maskell and Goldfinch's Contract [1895] 2 Ch. 525. Then in the next passage, As to a gift of chattels, the best opinion seems to be that it must either be perfected by delivery of possession or evidenced by deed.' For this Irons v. Smallpiece (1819) 2 B. & Ald. 551, 21 R.R. 395 is cited. Surely the question has ceased to be a controverted one since the decision of the Court of Appeal in Cochrane v. Moore (1890) 25 Q. B. D. 57, which confirmed Irons v. Smallpiece. Then again on p. 706, 'It may be added, that the tendency of modern decisions is to bind parties more strictly to the terms of their agreements,' that is with regard to time being of the essence of the contract in equity. Cornwall v. Henson [1900] 2 Ch. 298 in the Court of Appeal, and Bruner v. Moore [1904] 1 Ch. 305, we should think, distinctly negative any such conclusion. We cannot find any reference to either of these cases.

Turning to another matter, we cannot express much admiration of the author's method of introducing the topic of the equity of redemption. Lord Eldon, it is true, accepted, somewhat incautiously as it seems to us, the suggestion made at the bar that the right to redeem rested upon the equitable rule that time was not of the essence of the contract-see Seton v. Slade (1802) 7 Ves. 265; 6 R. R. 124; 2 Wh. & T. L. C. Eq. 475; but this, it seems to us, is not the true principle. In the first place, it is doubtful whether the rule ever applied to any other contracts than those relating to land-see Reuter v. Sala (1879) 4 C.P.D. 239-and it cannot be disputed that there was an equity of redemption in a mortgage of chattels. In the next place, time might by the terms of the contract be made essential in the case of a sale of land, but the right to redeem could not be fettered in any way, although it could be destroyed

by a subsequent sale-an equity of redemption was an equitable estate, Casborne v. Scarfe (1737) Atk. 603; 2 Wh. & T. L. C. Eq. 6-to the mortgagee, between whom and the mortgagor no fiduciary relation existed. The safer ground, it seems to us, upon which to rest this branch of the law is the relief granted in cases of forfeiture where money afforded an adequate compensation, Peachy v. Duke of Somerset (1724) I Stra. 447; 2 Wh. & T. L. C. Eq. 250; Sloman v. Walter (1784) 1 Bro. C. C. 418; 2 Wh. & T. L. C. Eq. 257. While on this topic, we must express our astonishment that, what seems to us a typical student's case, namely, Powell v. Brodhurst [1901] 2 Ch. 160, should have been omitted. In one or two instances we think that the notes are unnecessarily overburdened with cases.

We think we have by the above instances, taken at random by way of illustration, justified our refusal to award unqualified praise. As a class textbook, when the errors can be pointed out by the teacher, it will be found more useful than in the hands of the student who has not that safeguard. On the whole, however, the good predominates.

A. E. R.

Roscoe's Digest of the Law of Evidence in Criminal Cases. By HERMAN COHEN. Thirteenth Edition. London: Stevens & Son, Lim., and Sweet & Maxwell, Lim. 1908. 8vo. lxviii and 937 pp. (£1 118. 6d.)

A BOOK that has run the gauntlet of professional criticism for over seventy years, and passed successfully through twelve editions, does not seem to offer much scope for an editor's skill. Nevertheless Mr. Cohen has managed to put into the latest issue of this indispensable volume a very considerable amount of able and judicious work. In addition to introductory notes upon the Definition and Classification of Crime, he has, in the text, supplied several new subject sections, added, with rare exceptions, every important case decided since the last revision, and appended the dates, wherever discoverable, to all the cases quoted. He has also furnished an immense number of helpful cross-references throughout the text. To have succeeded, in spite of all this, in reducing the bulk of the work by some sixty pages, constitutes something of a feat. Doubtless some portion of this reduction is due to two innovations with which the average legal reader will probably quarrel, viz. the suppression of the letters' R. v.' in the title of all criminal cases, and the abbreviation of the familiar but long-drawn 6 & 7 Will. IV c. 65 s. 9' into the hurried economy of 6-7 W. 4, 65, 9'. Still, with fresh cases and statutes ever on the increase, there is undoubtedly something to be said for these compressions.

Mr. Cohen has apparently bestowed especial pains upon Part I of the book, which deals with the rules of evidence generally, and which, owing to recent statutory and other changes, has necessitated the largest amount of revision. In this section, the Criminal Evidence Act of 1898, which only became law while the previous edition was passing through the press, is now incorporated in the text and treated, so far as we have been able to test, very clearly and accurately. The conflict of judicial decision as to the compellability of a wife as a witness against her husband on charges of abduction under 48 & 49 Vict. c. 69. s. 7, is, in particular, duly noticed (p. 227), although Mr. Cohen abstains from giving his own opinion upon the point. This question is of more importance than might

appear, since the same difficulty is likely to arise with respect to each of the other enactments referred to in the Schedule to the Criminal Evidence Act, 1898. The various exceptions to the hearsay rule have also been subjected to careful revision, though the introductory proposition that' where there is a presumption that hearsay evidence is true, it is admissible' (p. 23), conveys rather a counsel of perfection than a statement of actual law. The admissibility of complaints in cases of rape, which though treated under the general head of hearsay, Mr. Cohen properly discriminates from it, has received much discussion of late, the effect of which is well summarized on pp. 23-4. With regard, however, to complaints in cases other than rape, we question whether R. v. Wink and R. v. Kidsdale, where such evidence was allowed to be given on charges of robbery and shooting, respectively, should be retained as law. The better opinion certainly seems to be that the admissibility of complaints is now confined exclusively to charges of rape and related offences upon women and girls (R. v. Osborne [1905] 1 K. B. 551, 558-9; Beatty v. Cullingworth, 60 J. P. 740 affd. C. A. The Times, January 14, 1897). The statement (p. 36) that 'prima facie, as a matter of course, a confession by the prisoner is admissible as evidence against him; but there are certain grounds which may be shown by him sufficient to exclude the confession', requires modification. This no doubt was the old rule, but it is now well settled that it lies upon the prosecution to establish, and not upon the prisoner to negative, the voluntariness of a confession (R. v. Thompson [1893] 2 Q. B. 12; R. v. Rose, 18 Cox, 717). We notice (pp. 103-4) that Mr. Cohen doubts the decision of Lush J. in R. v. Webb, 11 Cox, 133, that a witness under sentence of death is incompetent. This doubt is probably correct; at all events, it is confirmed by a ruling of Harrison J. in the unreported case of R. v. Fitzgerald, referred to in Taylor on Evidence, § 1347 note, where R. v. Webb, though cited, was not followed. During the ten years' interval since the last edition a very considerable mass of cases has necessarily accumulated for inclusion, but, after a fairly exhaustive search, the only ones which we fail to find are R. v. Whitmarsh, 62 J. P. 680, 711, R. v. Smith, 65 id. 426, R. v. Abbott, 67 id. 151, and R. v. Cowle, 71 id. 152, relating to the subject of dying declarations. Altogether, indeed, Mr. Cohen is much to be congratulated on the success of his task.

S. L. P.

Richard Hildebrand, Recht und Sitte auf den primitiveren wirtschaftlichen Kulturstufen. Jena: Gustav Fisher. 8vo. 189 pp. PROFESSOR HILDEBRAND, of the University of Gratz, has issued a second edition of a book which produced some sensation on its first appearance in 1896. The author attempts to bring order into the rather disparate material of early legal custom by co-ordinating it on the lines of economic development. I have tried,' he says, 'to determine the origin, the evolutionary sequence and the connection between legal institutions and customs obtaining with different nations and at different times from the standpoint that the growth of economic culture is the same or proceeds according to a certain common type in its essential features in the history of all nations.' Dargun had made a similar attempt a few years earlier, and the idea that the varieties of legal development can be classified and to a certain extent explained by considerations drawn from the main types of husbandry is certainly worthy of consideration. It is much more doubtful whether it can be assumed that one typical line of

development can be traced in this respect. Apart from such very broad stages as those marked by hunting and fishing, nomad life and agriculture, it would be difficult to trace an established continuity, and within these broad classes there are a great many varieties, dependent on climate, national psychology, and political circumstances. To mention just one point, it is clear that the development of the law of property and of personal condition will be entirely different within the broad class of tribes passing from the nomad stage to the agricultural, according as the tribe in question leads a more or less separate existence or conquers other tribes. Of such disturbing or rather differentiating conditions a great many have to be noticed in the history of primitive humanity.

As for the results of Dr. Hildebrand's investigations, his book, though undoubtedly containing many ingenious and valuable suggestions, hardly does justice to the magnitude and complexity of the task. The author himself owns that sections 1 and 2, dealing with hunters, fishers, and pastoral peoples, as well as section 4, discussing the rise of property and land, are more in the nature of illustrations of principles than of a comprehensive discussion of them. And indeed, though we may sometimes sympathize with the author when he contradicts dogmatic assertions on the evolution of marriage, matriarchy, private and communal property, it would be difficult to regard his own observations on the subject as more than casual remarks. Nor is it necessary to go very deeply into the question of the elements of communalism and individualism in mediaeval husbandry and law in order to see that its treatment on pages 134-89 is very slight, and not redeemed by the flippant way in which the writer assails any one with whom he happens to disagree.

Professor Hildebrand points to section 3 as the pièce de résistance of his book. It deals with Caesar's and Tacitus' accounts of the early husbandry of German tribes. The main idea of this section consists in the view that the Germans of that time were just passing from the stage of hunting to that of primitive agriculture, and that the use of arable is characterized by the shifting occupation of roughly cleared ground. Under these conditions there can be no talk either of communal or private property, but only of certain modes of assigning and protecting possession. In so far as Professor Hildebrand's theory goes further than the wellknown and usually received generalizations of Hansen in regard to 'wilde Feldgras-wirtschaft,' it seems somewhat one-sided and exaggerated. To begin with, apart from a rather unhappy attempt to read into Caesar, B. G. vi. 23 a statement as to complete absence of political organization of the Teutonic tribes (pp. 68, 69, 73), the analysis of Caesar's report is vitiated by disregarding the features of artificial military organization which are written large on the face of it. One of two things, either Caesar did not know what he was talking about, and in this case it is not much use squeezing definite pronouncements out of some of his words while rejecting other parts of his account, or else, as seems to be the better opinion, we ought to take account of the military aims and organization of the Suevic'thousands,' described by him in the fourth book. How far this peculiar description holds good for other German tribes is a different and a difficult question, but it ought not to prevent us from noticing the definite information supplied in regard to the Suevic league, which was best known to Caesar and in closest proximity to the Roman border.

Professor Hildebrand's commentary on Tacitus' Germania culminates in an interesting conjecture in regard to the famous c. 26: 'vicinis' is suggested

instead of 'in vices.' The author contends that economic and legal conditions were still governed at that time by processes of the clearing of waste and of casual occupation. Here again everything seems too much on one plane. E. g. the idea that while there is profusion of land there can be no competition as to land cannot be accepted without considerable reservations. We need not refer our readers to the history of rent as sketched by Ricardo and modified by Carey in order to let them realize that there may be land in abundance and yet pressure on some plots particularly attractive in one or the other respect-on account of exceptional fertility, the proximity of a river, &c. Indeed, it is quite inconceivable that the whole state of economic affairs on the right bank of the Rhine after the firm establishment of the Roman frontier should have been characterized by constant forest fires and casual occupation of arable. The climate and soil of the country were not suited to that kind of life, and Tacitus himself draws distinctions in this respect between the nomad Sarmatians and the tribes of Germany. Thus we are led to admit that Tacitus' description points to the beginnings of permanent agrarian arrangements and not merely to practices of occupation, although, of course, there can be no question of using the term 'property,' in the rigid and highly developed Roman sense. P. VINOGRADOFF.

Max Rintelen, Schuldhaft und Einlager im Vollstreckungsverfahren des altniederländischen und sächsischen Rechtes. Leipzig: Duncker und Humblot. 8vo. xvi and 237 pp.

THIS is an investigation by a pupil of Professor H. Brunner in Berlin. It traces two interesting forms connected with the procedure for the recovery of debts-the imprisonment of the debtor and the arrest of debtors and sureties (Einlager). The material used has been drawn from the domain of Frankish custom as applied in the Netherlands and from that of the Saxon provinces. The sources studied fall within the epoch preceding the reception of Roman law. A curious contrast is discovered in the use of imprisonment for debt between Frankish and Scandinavian law: the first considers it as a consequence of the refusal of the defendant to satisfy a legal claim-to pay a fine or to acquit a debt. Through his inability or unwillingness to satisfy such a claim the defendant commits a denial of right and becomes eventually an outlaw. It is at this stage that he can be subjected to revenge or personal constraint. The Scandinavian procedure, as analysed by Amira in his Nordgermanisches Obligationenrecht, starts from an entirely different view the insolvent debtor as well as the man who is not able to pay off a fine is given over into temporary servitude to the plaintiff and works off the amount of his outstanding material obligation. Comparisons with the Old English wite-theow, the Old Russian Kholop obelny, suggest themselves, and similar practices may be traced back into Greek antiquity in connexion with the Apollo and Admetus myth and the so-called kaтakeiμevos of Greek law. The recovery of debts according to Saxon custom is shown to comprise both views rural life fostering the practice of servitude in compensation, while in towns imprisonment as an indirect means to bring pressure on debtors naturally develops.

The arrest known as Einlager was a quaint custom of forcing a person liable to pay a debt to stay for some time at an inn or in a private house until the amount be recovered: it was primarily employed against