REVIEWS AND NOTICES.

[Short notices do not necessarily exclude fuller review hereafter.]

Elements of International Law. By HENRY WHEATON. Third English Edition. Edited, with Notes, &c., by A. C. BOYD. London: Stevens & Sons. 1889. La. 8vo. xx and 846 pp.

THIS is a handsome and useful edition of a standard work. The position so rapidly attained and so long maintained by Wheaton's 'Elements' is to be accounted for, partly by the date of its appearance, partly by its intrinsic merits. In 1836 there was no systematic work upon International Law in the English language. The author was also in many respects singularly well qualified for the task which he had undertaken. To early European travel he had added legal training as reporter of the Supreme Court, and actual diplomatic experience at Copenhagen and Berlin. He wrote with the authority of one who had taken part in many of the negotiations to which he had occasion to refer, and in a style which happily combined the precision of a lawyer with the ease of a man of the world. While well acquainted with the treatises of legal theorists, he was guaranteed by an intimate knowledge of foreign politics, and by a large measure of American common sense, against being imposed upon by arguments a priori. other hand, Wheaton had formed no independent conception of his subject. He borrowed, and spoiled in the borrowing, the unsatisfactory arrangement of Klüber. He is devoid of any sense of proportion, discussing at unnecessary length small points which happened to have arisen in his own experience, devoting for instance no less than twelve pages to the question whether the furniture of an ambassador is liable to seizure for breach of a covenant in the lease of his hotel. He realizes so imperfectly the boundaries of his subject as to include within it the Conflict of Laws.

On the

With all its faults, the Elements' is a work which should not be allowed to go out of print, and it has been fortunate in its editors. The commentary in which Mr. Beach Lawrence almost buried the text contains much important matter; and the concise notes of Mr. Dana are models of good sense. Mr. Boyd is a worthy follower of his Transatlantic predecessors. His footnotes, which are clearly distinguishable from those of Wheaton, are always to the point and up to date, though here and there they may need correction; as, for instance, is the case with a note on the rights of legation now possessed by the States of Germany. His larger additions are conveniently inserted in the text, as supplementary sections, but in a type which prevents them from being confused with the original work. It is however to be regretted that Mr. Boyd has thought himself at liberty, and that without notice to the reader, to omit or modify portions of Wheaton's text. This is notably the case in his treatment of Wheaton's account of the German Bund. One of the inconveniences of the reissue of partially obsolete works is that an editor is tempted, in the interests of edification, to tamper with his author. Regarding Wheaton's chapter on the Conflict of Laws as an excrescence, we cannot help also regretting the insertion of a supplementary chapter on that subject, valuable as it is in itself, which has been contributed by Mr. Nelson. T. E. HOLLAND.

A Treatise on the law relating to Executors and Administrators. By SIMON G. CROSWELL. Boston: Little, Brown & Co. 1889. La. 8vo. lx and 793 pp.

UPON this subject we have, of a sudden, two entirely new books,—one a large work in two volumes, learned and exhaustive, by an experienced judge of probate, Mr. Woerner, of St. Louis, and this one in a single volume of orthodox size. Nor has the author of the smaller work any cause for shame in the comparison inevitable; for he set for himself a different task, and that he has done in a manner much above the average. If the several topics have not in all cases been elaborated, or even presented as fully sometimes as might be desired, they have been set forth clearly and well, and in good proportion; and as an earnest of what the author may further be expected to do, this raises one's expectations.

The first chapter (on Jurisdiction) is one of great interest in the United States and elsewhere, and is well done. It seems to show that one of the serious dangers of a federative system of many 'sovereign' Statesno other word but sovereign' so nearly expresses the idea, even though that expresses a little too much -is likely to be reduced to small proportions, among a people nearly homogeneous and living under like conditions; the danger, that is to say, of seriously divergent laws. For Mr. Croswell's chapter on Jurisdiction shows that, whereas there was formerly great and often perplexing diversity of statute and of judicial construction, that has been steadily growing less, till now the state of the law may be considered as almost satisfactory. And, what is more, it may be added, without taking any unduly optimistic view, that this particular case is not entirely exceptional.

Has not Mr. Croswell, however, pinned his faith a little too strongly to certain rather sweeping declarations of the Courts in this matter of jurisdiction, in a legal as distinguished from the political point of view? Can it be true, even though able judges have so declared, that a decision in probate, in any case, can be conclusive of the Court's jurisdiction? Suppose, in the interesting New Jersey case quoted by Mr. Croswell, Plume v. Howard Sav. Inst., 46 N. J. 211, the priest whose estate had been administered as the estate of a decedent-he had not been heard from for more than seven years, and there was some evidence that he had died long before in a distant State-should turn up in New Jersey some fine day and bring trespass against his 'administrator'; how much would the decision of the Chief Justice, that the decree in probate appointing an administrator of his estate was conclusive of the priest's death, amount to? Or would the Court say, with the French Court in the case of de la Pivardière, that if he was not dead and buried he ought to be, and decline to hear him? The truth appears to be, that the reason why, after the Probate Court, having jurisdiction of the res, has appointed an administrator or executor, judges refuse to hear evidence (if they do) that the supposed decedent is still living, is that the best evidence of the fact, the man himself, is not produced.

Another chapter to which we turned with interest was the short one on Acceptance or Renunciation of the trust; and we were not disappointed. In half a dozen terse sections the gist of the matter is stated, and that too with regard to not a few special American statutes.

The chapter on Foreign and Intestate Administration is however the one of most general interest. This, as one would have reason to expect, if not to require, is fuller than most other chapters. It occupies twenty-seven

pages, and goes over the whole ground, in its general and in many special aspects. Among other things which one will look for there, and find, is the rather perplexing subject as yet of statutory rights of action for the negligent killing of the testator or intestate, where the laws of different States are involved. This part of the chapter would bear enlargement. It was not necessary to explain the title of this chapter to American lawyers; but we fancy that a section or two at the beginning, devoted specifically to explaining any differences between the probate of a will abroad and the probate of a will in a sister State, might be useful beyond the United States; though the differences may be gathered from what is said in various parts of the chapter.

We have not examined the whole or even the greater part of Mr. Croswell's book; but so far as the examination has been made, it has been satisfactory, and, assuming that all is as good as what we have seen, the book is likely to prove a success. It is evidently done at first hand, except the history; that Mr. Croswell will not long be content to take from Swinburne, Blackstone, or even Coke (how odd it sounds to read of the probate of wills before the Conquest and in the time of the Conqueror !); and it is well written.

When Mr. Croswell reaches his second edition, he may think it proper to notice the striking judgment of Mr. Justice Holmes in Brigham v. Fayerweather, 140 Mass. 411, and of the Court of Appeal and House of Lords in De Mora v. Concha, 29 Ch. D. 268; S. C. nom. Concha v. Concha, 11 App. Cas. 541, on the effect of decrees in probate in regard to special findings of the Court.

There is another point we hope to receive light in regard to, in the next edition, and that is as to the meaning of such expressions, touching the decree, as 'conclusive in the absence of fraud.' What does 'fraud' mean there? There is a great deal of loose talk in the books on that matter, and the Courts have found not a little difficulty in dealing with it. Mr. Croswell is familiar with the probate cases on the subject, but the question is a wider one than that; and such cases as Engstrom v. Sherburne, 137 Mass. 162, and Spencer v. Vigneaux, 20 Cal. 442, apparently contra, and Flower v. Lloyd, 10 Ch. Div. 327, ac. Castrique v. Behrens, 3 El. & B. 709, and Abouloff v. Oppenheimer, 10 Q. B. Div. 295, contra, though not probate cases, should be considered. For they have answers to give, however discordant.

B.

Bythewood and Jarman's System of Conveyancing. A Selection of Precedents in Conveyancing taken from Modern Manuscript Collections and Drafts of Actual Practice, with Dissertations and Practical Notes. By the late W. M. BYTHEWOOD, THOMAS JARMAN, and GEORGE SWEET. Fourth edition. By LEOPOld George GorDON ROBBINS. London: H. Sweet & Sons. 1884 to 1890. Vol. I, lii and 891 pp.; Vol. II, lvi and 1072 pp.; Vol. III, lxx and 1359 pp.; Vol. IV, lii and 1058 pp.; Vol. V, xlii and 733 pp.; Vol. VI, xlviii and 962 pp.; Vol. VII, lxxx and 1135 pp.

THE edition of this book by the late Mr. George Sweet, completed in 1850 with the exception of the volume on Settlements, has always been considered a very excellent work. Owing to the lapse of time since that edition was published, the precedents in it are not adapted to the existing law, and the dissertations in it contain much matter that is obsolete. Notwithstanding these objections to using the book, we believe that it is still sometimes

resorted to in cases of difficulty even by conveyancers in considerable practice.

The present edition has been prepared with much care by the editor; the dissertations will, though they are naturally somewhat unequal in quality, be found most useful, and will probably occupy the same position in the library of a conveyancer that the dissertations in the former editions occupied at the time of their publication. This is, and it is intended to be, very high praise. For example, the dissertation on 'Purchase deeds of Freeholds,' vol. v. p. 2, &c., is a most admirable epitome of the law; so full as to be worthy of the perusal of the conveyancer in full practice, so clear as to be useful to a student preparing for an examination. In this volume the editor raises at p. 526 a curious question, whether it is now necessary to insert 'general words' and the 'estate clause' in a charter of feoffment. As other examples of very useful dissertations the reader may peruse Enfranchisement of Copyholds' in vol. ii, and Mortmain' in vol. iv. Some useful information as to Sales by Corporations will be found in the dissertation on Purchase Deeds,' vol. v. p. 59, et seq.

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The forms used in most instruments are now so well settled that there is but little scope for the ingenuity of the draftsman in framing precedents for ordinary use. All that he can do is to indicate which of known forms are in his opinion the best, and in some few cases to devise forms to meet difficulties which to his knowledge have occurred in practice.

The editor has a tendency, most pardonable in a conveyancer, to reject some variations in the common forms which have been suggested of late years. For instance, in the typical form (vol. vi. p. 547) of the hotchpot clause in a marriage settlement containing a covenant for the settlement of the wife's after-acquired property, he restricts the operation of the clause to 'the said trust fund.' See as to this 3 Dav. Prec., 3rd ed. p. 170; 2 Vaizey on Settlements, 1223. In the settlement of the proceeds of sale of real estate he does not insert power to value the unsold land for the purpose of giving effect to the advancement and hotchpot clauses. In the Name and Arms clause he adopts the form contained in most collections of precedents, but, we believe, very commonly and properly objected to in practice, which enables a husband, by discontinuing the user of the prescribed name and arms, to cause his wife to forfeit her estate.

It must not, however, be thought that the editor has neglected some of the questions that the old forms did not provide for. For instance, in the covenant to settle a wife's after-acquired property he has inserted a provision which, though often used in practice, has not to our knowledge hitherto appeared in print, excepting from the operation of the covenant, Any property as to which the donor, testator, or settlor from whom the same shall be acquired shall indicate an intention that the same shall not fall under the operation of such an agreement or stipulation as this present agreement.' This provision ought in our opinion always to be inserted, as in its absence it is impossible to make any gift exceeding the prescribed amount to the wife, so that she shall have the personal enjoyment of it. At vol. vii. p. 992 the editor inserts a provision directing legacies, &c. to be paid primarily out of the proceeds of the conversion of personalty under a will, the scheme of which is to make a mixed fund of the proceeds of the sale of realty and personalty, so as to avoid expensive valuations of 1ealty, owing to the operation of the Customs and Inland Revenue Act, 1888.

The 'Special Instruments,' vol. vi. p. 803 et seq., contains some very useful precedents, some of which will not, so far as we are aware, be found elsewhere.

Both the dissertations and the precedents are well indexed in each volume. The only fault that we have to find is that the editor did not publish, with the last volume, addenda to the dissertations in the earlier volumes containing cases decided since those volumes were published.

H. W. E.

Bell's Dictionary and Digest of the Law of Scotland. Seventh Edition. By GEORGE WATSON. Edinburgh: Bell & Bradfute. 1890. La. 8vo. vii and 1138 pp.

THE work known as Bell's (Scotch Law) Dictionary is not reckoned amongst the works of the great Professor, George Joseph Bell, though it is said to have been projected by him. The four editions of 1807, 1815, 1827, and 1838, were compiled and edited successively by Robert Bell, W. S., and William Bell, Advocate-names not to be found in Mr. Leslie Stephen's Dictionary, and whom it would be rash to identify upon any less trustworthy authority. In the course of these four editions the work, from little more than a glossary-or short and popular explanation-of Scotch law terms, became a compendium of Scotch Law, arranged in alphabetical order. Although not in itself an authority in the sense in which Erskine's Institutes, or Professor Bell's Commentaries, are regarded as such, the Dictionary and Digest has been most useful in practice as a ready guide to these and other leading authorities; and as containing information often enabling the practitioner, in the hurry of business, to dispense with further search. The fifth edition, that of 1861, was by Professor Ross.

In the present issue, the editor has gone back to the edition of 1838 as the groundwork of the text, placing all matter not substantially contained in that edition in square brackets. This arrangement has the advantage of placing at once in contrast the law of fifty years ago with the present. It is almost surprising to find how much of the work of 1838 remains unaltered. The modern additions often consist of illustrations from modern cases which only prove the soundness of the original text.

Under Criminal Prosecution' the changes made by the Criminal Procedure Act, 1887, have been carefully worked in; and this article furnishes an excellent account in brief of the method by which an accusation of crime is investigated and finally tried.

Under the head of Election Law,' a valuable account of the old election law before 1832 has been retained entire, and the whole subject treated in clear historical order.

A new feature of this edition is the more frequent introduction of headings belonging exclusively to English law, with a brief explanation sufficient to render them intelligible to Scotch lawyers. This, however, it must be confessed, is done in a somewhat perfunctory manner. For instance, under the heading 'Purchase,' this word-in the technical sense rendered classical by Shakespeare in the last words addressed by Henry IV to his son-is explained in a brief paragraph, with a reference to Sweet's Law Dictionary.

It would have been appropriate under this heading to have referred to cases (such as Leny, 22 D. 1272) where the distinction indicated by the English word 'purchase' is given effect to in Scotch law. The distinction is indeed not less marked in Scotch than in English law. But it has been obscured by the want of a convenient equivalent to the word ' 'purchase ;' and the line of demarcation has been shifted by the Entail Act of 1685, confirming what must have been, at that time, the very questionable attempt