BOOK REVIEWS.

POMEROY'S EQUITY JURISPRUDENCE. in four volumes. By

JOHN NORTON PO MEROY, LL. D. (Third Edition) Anno-
tated and Enlarged. and supplemented by a TREATISE O;
EQUITABLE REMEDIES. in two volumes, by JOHN NORTON
POMEROY, JR. San Francisco: Bancroft-&Whitnev Com-
pany. 1905. Pp. Iviii. 1-859: xiii. 86o-i8o6; xv, 18o 7-
2626: viii, 2627-3525; xxx. 932: xix. 933-1875.
It is generally true that a new edition of a law book re-
quires less extended comment than is due the first publica-
tion. Particularly is this so in the case of Prof. Pomerov's
work on Equity Jurisprudence. Since its first publication
in r88i it has steadily gained in acceptance as an authority
upon this portion of the law and in recognition as an illumi-
nating exposition of an important subject. The profession
is accordingly already familiar with its general scope and
character, and the frequency of its citation by the courts
throughout the country has impressed it with an authorita-
tive character attained by few legal treatises.
In some measure the present edition resembles the second
edition published in 189z, for the original text of the first
four volumes is almost unchanged. There have been added.
however, extensive notes covering the cases which have
been decided since the former publication of the work. These
are referred to in separate notes so as to distinguish at every
point the results of the elder Pomeroy's work. Volumes V
and VI are really an expansion of Volume IV. They give
professedly a restatement of the matter contained therein,
but altered and elaborated so as to include in the text the
results of the later cases. In great part the original text of
Volume IV has been retained where possible. and this has
been supplemented in the body of the work by the additions
of the present Prof. Pomeroy. A difference ofstvle is notice-
able in view of this method of composition. but- this. we in-
cline to think, would open the author to but little criticism.
More doubtful, however, is the wisdom of publishing the
same material in the fourth volume. In our judgment this
volume might well have been omitted.
It is difficult to appraise the beneficent influence of this
treatise on Equity Jurisprudence. It has doubtless been very
great. Fortunately it was given to a man to understand the
dangerous tendencies of the reformed procedure. who was of
457
 BOOK REVIEWS.

sufficient mental strength to make a statement of equitable

principles at once comprehensive and scientific, and yet lack-
ing in that rigorous inelasticity, which rendered the common
law in need of the modifying influence of equity. That the con-
solidation of legal and equitable principles and their admin-
istration together might result to the disadvantage of the
latter, and in consequence diminish the capacity of the
principles of law to develop with the necessity for their appli-
cation to new conditions, was lost sight of by many profound
jurists. Prof. Pomeroy, however, fully realizing this possi-
bility endeavored to meet it by an exposition of the nature
of equitable jurisprudence which should set forth its relation
to the general body of the law, and indicate the true operation
of the Code Procedure. The effect of his work can best be
understood by those familiar with the results of the reformed
procedure, for it is not, we believe, too much to say that its
success has depended on the degree to which the courts have,
consciously or unconsciously, followed the theory of this
learned author. Even in England, where a special provision
was inserted in the Supreme Court of Judicature Act to the
effect that, "Generally, in all matters in which there is any
conflict or variance between the rules of equity and the rules
of the common law with reference to the same matter, the
rules of equity shall prevail," the tendency which Prof.
Pomeroy anticipated has appeared in some of the later cases.
That this same tendency has not been more seriously felt in
this country, in those jurisdictions where the consolidation
of legal and equitable actions has occurred, is due in large
measure to this treatise.
In our judgment it is accordingly entitled to a high meed of
praise, for a study of code procedure in its operation through-
out the States, under the varying theory of its scope and
purpose, has convinced us that in the mode of operation
advocated and explained by Prof. Pomeroy it represents
the actual and natural tendency existing at the present day,
and is in reality, despite assertions to the contrary, the scien-
tific form of procedure.
To realize this form of precedure, then, and at the same
time to preserve unimpaired the essential principles of equity,
and to see that they are, as they should be, controlling in the
decision of controversies is the goal towards which the author
worked. The acceptance which has been accorded his
book is ample proof of the quality of that work.
It need hardly be said that these volumes have almost
equal importance in States which have not adopted the
reformed system of procedure, for Prof. Pomeroy desired to
give such an exposition of equitable principles already estab-
 BOOK REVIEWS. 459
lished as to prevent their weakening or submergence where
legal and equitable actions had been consolidated. Ob-
viously, therefore, the treatment of the subject is adapted
to a jurisdiction in which equitable principles are still applied
by a separate tribunal or in a distinct form.
As in the original work, the very valuable introductory
matter is followed by a chapter on jurisdiction including a
treatment of the exclusive jurisdiction, the concurrent and
the auxiliary. Then follows a discussion of the maxims and
general principles of equity, certain of its distinctive doc-
trines, as, e. g., Penalties and Forfeitures, Election, Notice,
Priorities, -Estoppel, &c. Under the head of "facts and
events which are occasions of equitable primary or remedial
rights," the important topics of accident, mistake and fraud
are considered, the last being divided into actual and con-
structive fraud. The so-called "Part III" includes "Equi-
table Estates, Interests and Primary Rights," and hereunder
Trusts are extensively treated, also the topics of Conversion,
Mortgages, Equitable Liens &c. The volumes on Remedies
concern themselves with the well-known forms of equitable
redress. We have spoken thus at length of the subdivisions
of the other part of the work only to indicate the general
form of classification.
In a work of the comprehensive character of this treatise
on Equity Jurisprudence, and particularly in view of the
nature of its subject matter, it- is to be expected that the
author's theories of the basic principles underlying certain
branches of his subject should not meet with universal ac-
ceptance. No doubt there are instances in which the posi-
tion taken may be questioned, as has been done for example
with regard to the explanation of the equitable lien and of
the jurisdiction with respect to multiplicity of suits, which
latter topic has been especially expanded in this new volume.
But while we admit the weight of these criticisms, and our-
selves find certain points of disagreement in the rationale
of some few topics, yet the exposition as a whole must be
conceded to be masterly. Furthermore the unsatisfactory
character of the explanation does not prevent the state-
ment of the actual results of the decided cases from being
accurate.
It is unnecessary to refer to the excellence of style which
characterizes the work of the elder Pomeroy, an excellence to
which his accomplished son cannot and does not lay claim,
We believe, however, that for convenience sake there might
well have been a general revision and rewriting of the notes,
leaving the text in its original form except for supplemental
paragraphs distinguished as such.
 46o BOOK REVIEWS.
In what we have said of Prof. Pomeroy's 1professed pur-
pose, ,wecould not be understood as implying that his work
is written with any bias. or, distortion of principles. On the
other hand, the treatment is clear, cogent and correct, de-
piending on its own lucidity and accuracy to preserve the
great system of .Equity Jurisprudence unimpaired where it
comes under the administration of the same judges who
apply the principles of the common law. Whether in such
a jurisdiction or in a jurisdiction still preserving the ancient
distinction, it can well lay claim to being in its field easily first.
H.W.B.

DuE
IBy PROCESS
Lucius OF LAW UNDER THE FEDERAL CONSTITUTION.
PoiR 'NfcGEHEE, Professor of Law in the
'University' of North Carolina. Northport, Long Island;
Edwvard.Thompson Co. 19o6. Pp. x, 45'.
This .book is' one of'a series of "Studies in Constitutional
Law" limited .inits scope,. as indicated by its title, to a con-
,sideration of the limitations on'State and Federal activity
enforceable under the "due l rocess of law"' restrictions of
the United States Constitution. The subject has, of course,
been isolated for special study by other text writers, notably
by Mr. Guthrie in his book on the Fourteenth Amendment,
but it is a branch of the law in which the cases constantly
arising are -increasing so rapidly that frequent revision of the
principles applicable is necessary. In Mr. McGehee's book
the material available,, so far as contained in the decisions of
the United States Supreme Court, is collected with thorough-
'ness.. Decisions from the State courts are also utilized quite
-as. frequently,,we believe, as their importance requires.
In ,the.division of the subject the author accepts the clas-
sification which, for some time now has seemed in fair ay
to meet with general acceptance;, for after considering the
history of the clause, the elements 'of due process, the gen-
eral principles 'involved, the questions of jurisdiction, and
the rights and persons protected by the limitation on gov-
ernmental activity, he discusses the restriction in its relation
to the three great powers of Taxation, Eminent Domain
and- the. Police, Power. Procedure, which, has not infre-
quently been employec as a sub-title under.whi h to group
various decisions is classified with the "Rights" piotected by
due process and treated in the chapter devoted'to that subject.
The style is commendable for.its clearness and 'excels so
much in this particular, that the book is easily within the
appreciation of the lay reader, and could no doubt !be used
to advantage as a text book for students of social science.
 BOOK REVIEWS.

At the same time the treatment is not elementary in char-

acter, but sufficiently comprehensive to entitle the work to
an acceptable place in the lawyer's library.
The author defines Due Process of Law, as implying the
administration of established rules, not violative of the
fundamental principles of private right, by a competent
tribunal having jurisdiction of the case and proceeding upon
notice and hearing. The most casual thought discloses at
once that though some degree of definiteness is to be found
in this definition, in most important respects it is general
and indefinite. This Mr. McGehee freely admits, pointing
out that courts have wisely refused to bind themselves to
hard and fast tests, but by the "process of judicial inclusion
and exclusion" have developed some certainty in important
specific instances in which the protection of the due process
clause has been invoked. Obviously, with changing condi-
tions, new considerations for the application or non-applica-
tion of the constitutional limitations will arise, and there is
probably no other clause in the Federal Constitution, whose
possible operation can be less certainly predicted. It is
therefore to be expected that the rules which have been
established shall be sufficiently general to allow the courts
to decide cases of novel impression unhampered by criteria
ascertained before the case in question was thought of.
With this underlying theory the subject is then discussed
under the divisions heretofore indicated. The cases are
analyzed and classified with but little favorable or adverse
comment thereon, though occasionally with an interesting
prevision as to their possible tendency. To Haddock v. Had-
dock, however, the author in his preface gives severe criticism.
But this case has been subjected to so much comment favor-
able and adverse that it seems unnecessary to refer in this
review more at length to the criticism accorded it in this book.
Mr. McGehee's work not only deserves praise for itself,
but leads us to look with interest for new books in this series.
H.W.B.

THE LAW GOVERNING NUISANCES; with Particlular Refer-

ence to its Application to Modem Conditions and cover-
ing the Entire Law Relating to Public and Private Nuis-.
ances, Including Statutory and Municipal Powers and
Remedies, Legal and Equitable. By JoSEPH A. JoYCE
and HOWARD C. JOYCE. Albany; Matthew Bender &
Co. 19o6. Pp. cvi. 866.
In view of the increasing complexity of modem life, the
established rules of law are constantly finding new applica-
tion, but this form of legal development is much more dis-
 BOOK REVIEWS.

tinctly noticeable in some than in other divisions of the law.

It finds special illustration in the case of the law of Nuis-
ance, depending as this law largely does on the proper under-
standing and application of the maxim sic utere tuo &c. in
solving the rights of individuals as members of an organized
community. It is with due regard to this important fact
that this book has been written, and its satisfactory char-
acter attests the care and accuracy of the author's work.
The book is distinctly a book for the profession rather than
for the law student. It presents in orderly fashion, each
chapter complete in itself, the principles of law falling within
the subject of the chapter, fortified by numerous authori-
ties collected in the *footnotes. The effort is made to have
the priniciple in the text summarize the cases cited in the
notes, so that in relatively few instances are the cases ana-
lyzed with respect to the facts upon which the decision is
rendered. This we cannot but regard as detracting from
the general merit of the work.
After introductory chapters in which Nuisances are de-
fined and classified, and the fundamental and general prin-
ciples of the subject analyzed, there follows a discussion of
prescriptive right, and legalized and statutory nuisances.
Then the different kinds of nuisance are considered in order
e. g. the various forms of business which may become nuis-
ances, smoke, fumes, gases, smells, noises, jars, vibrations,
animals, &c. Particular attention is given to nuisances
affecting highways and .waters-and wisely so, since it is
here that there is more distinctly in evidence the increasing
number of decisions applying the principles of the law of
nuisance. Following these topics a chapter is devoted to
municipal powers and liabilities, and the work is concluded
by a study of the remedies, legal and equitable, the parties
entitled, defenses and damages. To these last matters ample
consideration is given, and excellent judgment has been
shown in the adequacy of their treatment.
The authors have recognized the increasing part that
legislative action (State and municipal) is taking in respect
to this part of the law, and as' well in the chapter on legal-
ized nuisanace as in that on the powers" and liabilities of mu-
nicipal corporations, care has been taken to work out fully
the most modem phases of the application of the principles
of le'gal development here at work. In the latter 'chapter,
after pointing out the nature of municipal authority as a
form of state- activity thrcugh a subordinate agency and its
consequent limitiation in view of its delegated character,
*the authors consider the extent of the power over nuisances
when -delegated, how far certain forms of business may be
 BOOK REVIEWS.

declared nuisances, how far they may be regulated, what

action may be taken with respect to structures and in gen-
eral under what circumstances and in What manner nuisances
when found to be such may be dealt with. A mere refer-
ence to the topics considered reveals their present-day im-
portance and evidences what is true throughout the book,
that the authors have realized the need for a treatise on this
subject which shall be written with full appreciation of
existing conditions. This need they have met in this book,
which is certain to prove of practical value to the legal pro-
fession.
H.W.B.

THE LAW.OF HOMICIDE. By FRANCIS WHARTON, LL. D.

Third Edition, by FRANK H. BOWLBY, of the Publishers'
Editorial Staff. Rochester, N. Y.; The Lawyers Co-
operative Publishing Co. 1907. Pp. clvi. 1120.
The different editions of this work have appeared at inter-
vals of such length as to require in each instance important
modification of the text and extensive addition thereto.
Dr. Wharton first published the book in 1855, and not until
twenty years later did he consent to bring out a new edi-
tion, and then only, apparently, because changes and de-
velopments had occurred to such an extent that dependence
on the text of the original edition would have resulted in
the application of rules no longer in accord with the more
accurate psychological knowledge and humane sentiment
accepted by the ablest courts. It is in this second edition
that malice and intent appear to have become inferences of
fact rather than presumptions of law, that insanity is recog-
nized as a condition susceptible of infinite gradations, that
to sustain an averment of an intent to kill the deceased,
evidence of intent to kill a human being must be produced,
and so on. This second edition was written along lines simi-
lar to the first edition, and the subject was developed in
logical and philosophical fashion. The eminence of Dr
Wharton, and the respect commanded by his productions
are everywhere conceded.
The present edition differs in many more respects from
its predecessors than new editions are wont to do. Certain
portions of the old text are retained, but in large measure
the whole subject has been rewritten, and a number of new
chapters have been added. The cases are exhaustively
cited, but the method evidences the type of the modem law
book intended for use by the profession, approaching as it
does towards the digest form of composition, rather than the
 404 BOOK REVIEWS.

philosophical treatise of the old-fashioned school. Doubt-

less this is the prevailing tendency, and the orderly presenta-
tion of the principles of concrete cases well classified is more
in line with the desires of the practicing attorney than a
profound rationale of the underlying princlples. But we
confess to a feeling that the extensive changes in method of
treatment are such as make it doubtful whether this volume
can fairly be regarded a new edition of Dr. Wharton's work.
Our inclination would rather be to consider the book the
work of Mr. Bowlby than of Dr. Wharton, while necessarily
Mr. Bowlby is deeply indebted to Dr. Wharton, as he would
be the first to confess himself.
Naturally in a book devoted to a single topic of criminal
law, subjects of general bearing must be treated in limited
manner and their full exposition left to the more general
work. So we find frequent references-to Wharton's Criminal
Law, and occasionally, as in the case of drunkenness and
insanity to Wharton & Stille's Medical Jurisprudence. 'While
this is true, still, the book can well lay claim to being a com-
plete treatise on its subject since even in these instances,
the rules referred to are considered so far as to make clear
the more important phases of their operation in relation to
homicide.
The division of the subject matter is in its most important
'part not novel, but several topics of increasing interest are
treated in separate chapters. After an introductory study
of who may commit homicide, the subject of the crime, the
causal connection between the act and death, the participants
'in the crime, and the difficult subject of malice, the author.
takes up murder at length and then manslaughter. The law
.of self-defense follows, and after intervening chapters of less
importance, homicide by abortion or attempted abortion is
'treated, and also homicide of officers of justice or in resist-
ing arrest, or in carrying out conspiracy to do an unlawful
act. To negligent homicide, homicide by officers of justice,
and homicide to prevent criminal or unlawful acts separate
chapters are devoted, and the book closes with chapters on
insanity and drunkenness, pleading, &c. evidence, verdict,
judgment and execution.
The piinciples 'are clearly stated, and the examination of
the authorities is apparently thorough. The book is to be
commended to the practicing attorney whose labors may
require him to consider this branch, of the law.
H.W.B.