of the half-hundred courts of last resort in the United States will disclose that the volume of the output of this court, as a whole and per capita of its membership, places it well within the rank of the first half-dozen of those courts in this regard. (See the reporters generally and data assembled by the West Publishing Company and published in the Docket).

"Furthermore, it is to be remembered that in disposing of this large volume of business, this court, unlike the appellate courts of the United States generally, is required, in all criminal cases and in ninety per cent of the civil cases, to review the evidence (which is not required by law to be printed and comes up in the original transcript of the stenographer's notes) so as to ascertain whether the judgments of the lower courts are 'sustained by the weight of the evidence.' "118

The salutary effect of uniformity, certainty, and stability in the law will be attained here as elsewhere under American sovereignty by adherence to the rule of stare decisis.119 The Supreme Court would undoubtedly not feel itself bound by obiter dicta to be found in previous opinions. As Mr. Chief Justice Marshall once said:

"It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision."120

The Supreme Court does, however, suggest rulings to guide a new trial.

Cases taken to the United States Supreme Court on appeal or writ of error become substantially a part of the Philippine case law. These opinions, while few in number, have been epochal in effect.

Legal Treatises. One can find the names of the leading Spanish commentators and of well-known American text writers mentioned frequently in the Philippine reports and the opinions of the attorney-general. The respect accorded the views of Manrosa and Viada, of Cooley, and of Dillon, and others, and their commanding influence on decisions is noteworthy. In any number of cases their opinions have been accepted without argument, as decisive. One can search in vain for a writer of Philippine origin cited as an authority.

118. Alzua v. Johnson (1912), 21 Phil. 308, 395.

119. Kuenzle & Streiff v. Collector of Customs (1908), 12 Phil. 117; and Black on "Interpretation of Laws," p. 18; but see McGirr v. Hamilton (1915), XIII O. G. 878, holding that where a question passes the court sub silento, the case in which the question is so passed is not binding on the

court.

120. Cohens v. Virginia (1821), 6 Wheat. 264, 398, 5 L. Ed. 257.

It is true there are good books by Philippine authors. Ignacio Villamor has written a scholarly "Tratado de Elecciones"; Manuel Remirez, "Manual de Derecho Civil"; Charles S. Lobingier on "Philippine Practice"; Theodore M. Kalaw, "Teorias Constitucionales"; F. R. Feria, Manuals on "Criminal Procedure" and for notaries public and justices of the peace; Mariano H. de Joya, "Principios de Derecho Internacional Privado"; and there are others. Such volumes were intended as elementary text books for students or for particular classes. They were not prepared to advocate reforms and accordingly have not caused radical changes in statute law. Neither were they of such an original nature as to be incorporated in the Reports.

The field of Philippine forensic literature is a virgin one awaiting the first furrow by the pioneer plowman.

BY EDWARD ROBESON TAYLOR1

For many years the air has been filled with the voice of law reform and of recent years that voice has grown quite vociferous. Yet, little has been done in the way of true reform, except it may be said that some true reform was made through what was known as the reform procedure. That which permitted equitable defences to be pleaded in common law actions and which permitted in certain cases the rights of parties to be administered notwithstanding the form in which the action had been brought, were indeed real advances; but still they fall far short of that which is fundamental, and which I here bring forward more to invite discussion than to present an exhaustive view of what I deem to be demanded; for the defects of our system (or no system) lie in the field of the substantive and not of the adjective law. And this being so, how is it possible to make the substantive law what it ought to be by amending the adjective law? We have, in fact, a condition of things which is a reproach to us and which it is quite remarkable that civilized human beings should submit to. We have, instead of one system of rights, which it might be supposed would be enough, and which satisfied the Romans in the flower of their jurisprudence, two well defined systems of rights, which in many respects are entirely different from each other.

Let us be somewhat specific, and, firstly, let us ponder the way the law deals with consideration and the way equity deals with it. In the law, any consideration is supposed to be sufficient to support a contract; indeed, to use the language of Professor O. K. McMurray, recently used by him at the meeting of the Association of American Law Schools, at Chicago, Illinois, it is, as gathered from the case books, "a necessary, an indispensable, and an immutable principle" in law; though, as he claims, there are revolutionary workings which are making or tending to make it "moribund." On the contrary, equity treats consideration in an entirely different way. If a man brings a suit to enforce his contract of purchase, say, of land, he must allege, and in fact prove, according to our Supreme Court, in addition to the other things which it is not necessary to mention here, full value of the land. In fact, in no jurisdiction, I apprehend, that follows our law, would consideration be substantially treated otherwise.

1. Dean of the Hastings College of Law, San Francisco.

Let us take the case of a contract between a partnership and a corporation, where a member of the partnership, who has promoted the contract, is one of the directors of the corporation. Here, at law, there is a perfect contract, but equity will deem it to be bad; for virtually there are not juristic persons on both sides of the contract, but only one person.

Again, take the case of independent advice. The contract between husband and wife for settlement of the common property is perfectly good in the absence of actual fraud and duress, and sustainable at law; but if the wife had not had independent advice she can at her own instance have the contract set aside.

We have a statute providing for set-off, but we know that setoff is entirely of equitable origin, and that notwithstanding the statute a set-off will be allowed in equity if the equity is shown to be one outside of the statute; and, in fact, the same may be said of contribution.

At law, the sale of an expectant interest is void, but if the sale be made on sufficient consideration, or if money be lent on it, it will be supported in equity. Again, the doctrines of equitable conversion, of fraud, of accident, and of mistake are so different from what we find in the law as of themselves to constitute, as contradistinguished from the law, something entirely novel. It is not necessary to pursue this subject, for confessedly equity took its origin and has added to its magnificent bulk by reason of the deficiencies in the law, so that we have a system of equity which is the great glory of the country in which it grew up. Indeed, in my own opinion, nearly the greatest injury ever inflicted upon England was that injury which resulted from the course of justice not pursuing the same evolution as in ancient Rome. It might have done so, as Pomeroy points out, had the statute of second of Westminster (in consimili casu) been liberally followed and not inhospitably treated by the judges.

The Romans had a most illuminative legal vision. They saw when they began to be great that their law, built on the customs of barbarians and farmers, could hardly be sufficient to govern the rights of the civilized peoples who bordered the Mediterranean and whom they were subduing to their empire. And they had the sense to realize that a people who had two systems of rights had in reality no system, and so it was that they let go of their corpus civilis and built on the wide extended basis which supports at present all the legal systems of the world except those of this country and England with her colonies.

In our state of California, which is certainly one that houses all that is best of human nature, is it not strange enough that such a condition of things should exist? That it has been held over and over that you cannot have any remedy in equity, if there is a remedy at law; that that which governed the issuance of the first subpoena more than eight hundred years ago should dominate us with the same imperious force; that a law which confessedly deals with the "substance" of things should be put under the heel of a law which confessedly deals with the "form" of things; that the superior must yield to the inferior-are we not warranted at wondering at such a state of things? The fact that the doctrine of consideration is, as Professor McMurray says it is, becoming "moribund," is a fact to illustrate the point of the great separation between law and equity, and how judges are willing even at the expense of being revolutionary to try and bring them together.

Here, I take it, lies the future of real reform in the law. Even now there are some states in the American union which have separate courts of law and of equity-one court administering one system of rights and another court administrating another system of rights. If this were not the most serious of matters, it would indeed be laughter for the gods. And those courts which do not have separate courts still keep the systems of equity and law entirely different in substance, though uniting in practice.

It is really astonishing how the past controls us, and controls us to our great injury. What an absurd thing it seems to a thinking person that there can be no remedy in equity if there is one at law, particularly when we consider how this arose. The king, as we know, being deemed to be the fountain of justice, and no court having jurisdiction to try a case in the absence of his writ giving it right to do so, it was obvious, under such a state of things, that the remedies at law were exclusive and that you could not resort to any tribunal if a writ could not be found by the clerk having the copies of all writs in his possession. Hence there was no remedy in equity, if a remedy could be found at law, and such rule has prevailed universally in all the states of the United States having common law jurisdiction. In my own state, California, this has been from the first, and still is, an inexorable rule, and rests on no reason except that given above. These chains which were forged for us in the days of feudalism we still wear, and as we go along, their clank resounding in our ears, we rejoice that things are as they are and that such an anomaly is one of the great benefits of our law. We are happily told that law is of the form (as indeed it is) and