of Chancery from the time of Edward I. to the Judicature Acts, it would be obviously unreasonable to look for the merits of a monograph. Mr. Kerly has, nevertheless, given us a thoughtful and useful book. He presents, in a compact yet attractive form, the results of a careful study of nearly everything that has been written upon his subject. He seems not to have known, however, of Professor Langdell's treatise upon Equity Pleading, nor of that writer's remarkable essays upon Equity Jurisdiction in the HARVARD LAW REVIEW. That these writings should have escaped him is the more unfortunate, since the main defect of the book before us is due to the author's failure to seize and emphasize the fundamental distinction between law and equity; namely, that the common-law judges acted in rem, while the Chancellor always proceeded in personam, and that the common law was therefore essentially unmoral, whereas equity was essentially ethical.
We have noticed a few inaccuracies. On page 74 it is said that fraud could always be pleaded as a defence at law. But Lord Abinger in 1835, in Mason v. Ditchbourne, 1 M. & Rob. 460, and the Supreme Court of the United States in 1880, in George v. Tate, 102 U. S. 564, refused to admit that defence to an action on a bond, informing the defrauded obligor that his only relief was in equity. The distinction between a condition and a use is overlooked on pages 78, 81, and 84. The statement on page 86 that debt would not lie for chattels after the reign of Edward I. is contradicted by a long line of decisions.
The common-law judges have been so uniformly abused for their narrow construction of the Statute of Uses, in refusing, as in Tyrrell's Case, to allow the statute to execute a use upon a use, and the chancellors have been so uniformly commended for promptly remedying the mischief o common-law decision, that our author is hardly to be criticised for repeating, on page 135, these inveterate opinions. But they are none the less inveterate errors. It was a chancery doctrine before the Statute of Uses that there could be no use upon a use, and for the reason, quite in keeping with the spirit of the age, that the second use, being repugnant to the first, was necessarily void. The common-law judges, therefore, could not do otherwise than decide that the statute had no operation uponi the void use. Furthermore, the modern doctrine, that the second use may be supported as a trust, is believed to have originated in Sambach v. Dalton, Tothill, 188, decided in 1634, a century after the Statute of Uses.
J. B. A.
THE TRANSFER OF NEGOTIABLE PAPER AS COLLATERAL SECURITY. By Lewis Lawrence Smith. Philadelphia, 1890: T. & J. W. Johnson & Co. 8vo. Pages 39.
This is the Sharswood Prize Essay of the University of Pennsylvania for 1886. The essay is upon one point, viz., whether a creditor who takes negotiable paper as security for a previous debt, is safe from prior equities. The author favors the view of the English and United States Supreme Courts, that the creditor is safe, because his forbearance is a sufficient consideration. The essay is an attempt to show an actual common-law consideration from the creditor, rather than an, argument from the stand- point that a bill or note is a commercial speciality.
D.T.D.
