Wilson vs. Clark, 60 N. H., 352. If the circumstances are such that the vendee cannot be regarded as the equitable owner, their loss does not fall on him. Goldman vs. Rosenberg, 116 N. Y., 78. The case of Wells vs. Calvan, 107 Mass., 514, is not opposed to the view that in equity the loss should fall on the vendee as it was an action at law to recover damages for the non-acceptance of a deed. That in equity the vendee is regarded as in the nature of a cestui que trust is evidenced by the following illustration: 1. Vendee can compel transfer of land to him by any one taking the land who is not a purchaser for value of the legal title without notice. 2. When a widow is entitled to dower in on equitable state, she can claim dower, her husband (the vendee) dying before contract was performed. 1 Hen, & Munf. 91. 3. In the case above supposed the heir would take the property. 34 N. Y., 92-103, 63 N. Y., 301-303. 4. A devise of freehold estates would pass the purchaser's interest. 1. Wend, 625. 5. A devise of real estate is revoked by a contract of sale. 7 Johns, 258. 6. Creditors of bankrupt vendee would reach property as they would mortgage property. 13 N. Y., 18. 7. Creditors of insolvent vendor cannot reach the property. 13 N. Y., 180-190. 8. From time when contract should have been performed, vender in possesion, must account for the rents and profits and is entitled to interest on purchase money. This rule is subject to the qualification that if he is in default, and the interest exceeds the profits, to prevent his profiting by his own wrong, he will not be allowed to receive interest, but will be allowed to keep the rents and profits. Esdalie vs. Stephenson, 1 S & S., 122. Jones vs. Mudd, 4 Russ, 118. If a vendor cannot perform his contract entirely, the vendee is allowed, as a rule, to compel the vendor to perform as far as he can, an abatement being made in the purchase price for the deficiency. Hooper vs. Smart, L. R., 18 Eq., 683. In some jurisdictions, the husband's inability to convey a perfect title, owing to his wife's refusal to release her dower, if the refusal is not due to his influence, proves an exception to the above rule, and a conveyance with an abatement in purchase price cannot be compelled. Pomeroy, § 460, Waterman, § 511, Conf. Sternberger vs. McGovern, 56 N. Y., 12. The vendee has no right to demand performance with an abatement in the price if he had notice of defects, unless vendor contracted to remedy defect. Castle vs. Wilkinson, L. R., 5 ch., 534. Baker vs. Cox, 4 Ch., Div. 464. Performance with an abatement will also be refused, where contract was due to mutual mistake, and to enforce such performance would be a hardship to defendant. Earl of Durham vs. Legard, 34 L. J., ch. N. S., 589. Stipulations denying the purchaser's right to an abatement because of defects are construed ordinarily to refer only to slight and immaterial defects. Whittemore vs. Whittemore L. R., Eq., 603. The effect on third parties will also be taken into consideration in granting performance with an abatement in price. Thomas vs. Derring, 1 Keen 729. Curran vs. Holyoke Co., 116 Mass., 90. Where defect does not go to the essence vender can compel performance with an abatement in the purchase price. Calcroft vs. Roebuck, 1 Ves. 221. But the defect must be measurable in money. Magenniss vs. Fallon, 2 Mall. 661–584. Brook vs. 5 Hun, 298. In the United States, without the aid of statutes, the courts have generally dealt with the questions of awarding damages in an action brought for specific performance as liberally as have the English courts, by the aid of legislation. And it is generally held that if the subject matter is one over which the court would have jurisdiction to decree specific performance, but for some reason not known to the plaintiff, when he filed his bill, defendant is not in position to perform, the court will not dismiss the bill, but will give the plaintiff damages. Pomeroy, § 477. Milkman vs. Ordway, 106 Mass., 232. But if he knew the fact when he filed the bill, it will be dismissed. Pomeroy, Perf., § 475. BOOK REVIEWS. THE LAW OF PRIVATE RIGHT, BY GEORGE H. SMITH, AUTHOR OF "ELEMENTS OF RIGHT, AND OF THE LAW." Number 134 of the Humboldt Library of Science. New York: Humboldt Publishing Company, 1890. The August number of the Humboldt Library of Science, is one which will be especially interesting to lawyers. Mr. George H. Smith, there treats of the Law of Private Right by a road on which even he is a pioneer. The work is written in the endeavor "to expose the radical errors" of the prevailing theory of jurisprudence, and "to expound the true theory." The author fears that the profession of our own country and time has followed far in the footsteps of the old Roman lawyers in the time of Justinian, and has about lost its "independent exercise of the reason, the faculty of judging of decisions, and even of understanding or of correctly applying them." Students of law will be interested to know that the author believes "it to be practicable to compress in a very small space what is now spread through hundreds, and even thousands, of volumes." Mr. Smith gives for the better definition of law, that it is "simply the aggregate of the principles and rules, whether arbitrary, accidental, or of natural reason, by which the courts are governed in the exercise of jurisdiction." While we do not agree with the author in all his reforms, we acknowledge that there are fields in which his work must bear much good fruit. We recommend the work to the profession as well worth its perusal. It is something new and interesting upon an old subject. A GENERAL VIEW OF THE CRIMINAL LAW OF ENGLAND. By Sir James F. Stephen, K. C. S. I., B. C. L., author of "History of the Criminal Law." New York, Macmillan & Co., 1890. We take pleasure in reviewing such a book as Sir James Stephen's "General View of the Criminal Law of England," and especially welcome the second edition of the work, since the profession has waited so long and patiently for it. The author has compressed his large and varied knowledge into a very small compass, and as the draftsman of the English Code of Criminal Law and Procedure, is a gentleman who can be relied upon as one of the best of authorities upon the subject. This history added to his other works may be said to constitute a complete course upon the English Criminal Law. EMIGRATION AND IMMIGRATION. A STUDY IN SOCIAL SCIENCE. By Richmond Mayo Smith, A. M., Professor of Political Economy and Social Science in Columbia College, Membre de l'Institute International de Statistique, Vice-President of the American Statistical Association, etc., New York: Charles Scribner's Sons, 1890. This is undoubtedly the most important contribution to the literature of the immigration problem in the United States that has yet appeared. Professor Smith has a wide reputation as an accomplished statistician, and we may thus rely with confidence upon the soundness of his methods and conclusions. In addition to this, it is a pleasure to read a book on a subject popularly supposed to be of the driest, which handles its theme in so interesting a way that one can hardly avoid yielding to the inclination to finish the volume at a single sitting. THE LAW AND PRACTICE OF REFEREES AND REFERENCES, WITH FORMS. By Morris Corper, of the New York Bar. New York, Diossy & Co., 1888. The purpose of this work is to set out in as compact form and condensed language as is consistent with clearness, the whole law relating to the practice before referees. This the author has admirably succeeded in doing. He has given us a book that can be made of practical use, and which is at the same time convenient. 1,500 QUESTIONS ANSWERED. By R. W. BONYUGE AND E. C. WARD, of the New York Bar. New York, Diossy & Co., 1887. This work has now been before the profession for nearly four years, and has in that time been received with many expressions of praise. Consisting as it does of the questions asked at eighty bar examinations, it is of invaluable aid to the student preparing for his entrance examination. But we think it of as much use to practioners in references to authorities on many important legal questions. ADAMS, EQUITY. By John Adams. Eighth edition by Robert Ralston, of the Philadelphia Bar. Philadelphia: T. and J. W. Johnston & Co., 1890. Adams' Equity undoubtedly holds the first place among text-books on that sub ject. The author has succeeded in using short, terse sentences, and at the same time has presented the facts with perfect clearness. It is pleasing to see that the editors of the editions since published, have simply annotated the original work, and have not destroyed its conciseness. We are glad to add our praise to the abundance which the work already enjoys. RIGHTs, Remedies aND PRACTICE At Law, in EQUITY AND UNDER THE CODES. A TREATISE ON AMERICAN LAW IN CIVIL Causes; WITH A DIGEST OF ILLUSTRATIVE CASES. By John D. Lawson, author of works on Carrier, Usages, and Customs. In seven volumes. Vol. VI. San Francisco: Bancroft-Whitney Co., 1890. We have already twice commended this treatise to our readers, and we fear that further mention of it would be superfluous. We may say, however, that the present volume is a continuation of the fifth "and first of Remedies and Procedure. MANUFACTURING AND BUSINESS CORPORATIONS. A TREATISE ON THE NEW YORK MANUFACTURING CORPORATION ACT OF 1848, AND BUSINESS CORPORATION ACT OF 1875, ToGETHER WITH SAID ACTS AS AMENDED, ExTENDED AND MODIFIED TO DATE. Second edition. By E. W. Southworth and D. A. Jones, of the Mew York Bar. New York: Baker, Voorhees & Co., 1890. It is not often that the law of corporations is treated in so practical a manner, as in the work under review. For this reason it will be of great value to corporators. On the other hand the legal information is so clearly given that no lawyer can study the work without adding largely to his knowledge of the subject. Besides this the business man will find in the work a large amonnt of information without which he would be sadly handicapped. The second edition has been revised, enlarged and brought down to date. For a clear, practical treatise on the Corporation Acts of 1848 and 1875, we know of no work that excels it. A TREATISE UPON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION. By Thomas M. Cooley, LL.B., Chairman of the Interstate Commerce Commission. Sixth edition. By Alexis C. Angell, of the Detroit Bar. Boston: Little, Brown, & Company, 1890. In "Cooley's Constitutional Limitations" we have a book that occupies the front rank of the legal literature of the country. This work was written as an aid both to the practitioner and the student, and in either capacity has served as a reliable guide in the examination of all questions respecting the constitutional limitations of the State legislstures. Each constitutional question has been presented with exceptional clearness and perfect accuracy, and the work can be fairly acknowledged to be one of the best of authorities regarding all judicial decisions upon these questions. After passing through five editions under the special supervision of the author, the deserved popularity of the work necessitated a sixth. The services of Mr. Alexis C. Angell, of the Detroit Bar, were secured for this new edition, and by him the original work has been thoroughly gone over and changed wherever it was deemed necessary. All new important cases have been added to the references, till the whole number now reaches over ten thousand. From the advertisement of this work in the front of the present number it will be seen that it is offered to the profession at a very low price. MITO YASHIHI. A TALE OF OLD JAPAN. By Arthur C. Maclay, A. M., LL.B. New York: G. P. Putnam's Sons, 1889. Upon closing this book one feels toward the manners and customs of Japan very much as he felt toward the customs and morals of Russia after reading Anna Karenina. He feels that he has made an excursion and learned something worth knowing, but is fully satisfied to find himself still an American citizen. The author has skillfully handled his materials and shows a thorough knowledge of the country and the people about which he writes. The book is an historical educator. A CONCISE TREATISE ON THE LAW OF CORPORATIONS OF NEW YORK: By Charles T. Haviland, of the New York Bar. New York: Diossy & Co., 1890. In a treatise of this kind the superiority of the mechanical book-work is scarcely less prized than the excellence of the subject matter, and should prove an advantage to the author in introducing his new work. Mr. Haviland has done his part thoroughly and well, but we regret that the statutes are so complex and obscure that the author, in paraprasing, has been obliged to depart so much from the real text of statutes to make the law intelligible. But in this very handy volume a lawyer or a corporation officer has a complete guide. The laws under which different stock companies in New York |