"factor's act." The remaining chapters treat of the rights, liabilities, and remedies of the parties under all circumstances, and with respect to every species of property-chattels or things in action-which may be pledged.

From our examination of this volume, we regard it as a most valuable contribution to our legal literature, and are confident that it will meet with a very favorable reception from the legal profession throughout the whole country, and from those classes of business men, like bankers and brokers, who are engaged in the loaning of money upon the pledge of commercial securities. Mr. Jones has remembered one fact which has apparently been overlooked by some writers, that a text-book, in order to be of practical benefit to the lawyer, should represent the law as it is, and not simply as it has been; and the further fact, that the rules of the common law have been more or less changed in many of the states by statute. No legal treatise can be of much practical value to the profession of the whole country which fails to take notice of the statutory legislation upon its subject-matter in the various states of the Union. Mr. Jones has recognized and fulfilled this requisite of a modern text-book. Whenever there is occasion, he constantly mentions and freely quotes the provisions applicable to the questions under examination, which are found in the civil codes of Louisiana, of California, and of Dakota, as well as the statutes of other states which have not professed to have adopted a complete system of codification. The book, in fact, embraces the doctrines and rules both of law and of equity, as modified or supplemented by statute, which belong to the general subject of pledges of chattels and of collateral securities, and which define the rights, liabilities, and remedies, at law and in equity, of all the parties who may be interested in a pledge,

either as principals

or as sureties.

A TREATISE ON NEW TRIAL AND APPEAL, AND OTHER PROCEEDINGS FOR REVIEW IN CIVIL CASES. By ROBERT Y. HAYNE. 2 vols. San Francisco: Sumner Whitney

& Co. 1884.

This elaborate work, by a member of the San Francisco bar, deals with the modes of procedure in all matters of review prevailing in California, and is especially designed for the use of the profession in that state. Its comprehensive character and design can not be better stated than in

the author's own

this treatise is to give an account of the modes in which the proceedings of courts of justice may be reviewed, and the practice in relation thereto. The ordinary proceedings for review are motions for new trial in the court which rendered the decision, and appeals to a higher court; and accordingly the main portion of the work is devoted to these two modes; viz., new trial and appeal. In addition to these it has been deemed

language, contained in his preface: "The purpose of

advisable to give

an account (much less extended) of what may be termed

the extraordinary modes of review; viz., writs of certiorari, prohibition, and habeas corpus, and actions in equity for relief against judgments. And to these have been added a chapter on the writ of mandamus, and a chapter on motions for relief against judgments by default."

The work is one of that increasing class of text-books which are necessarily confined to the treatment of some particular topic or branch of the law of a single state. The procedure in the review of judgments and other decisions differs so widely in different states, and is to such an extent based upon and regulated by minute statutory provisions in each state, that a treatise upon this subject, to be of any real practical value, must almost of necessity be confined to the system prevailing in a single This is most emphatically so in California. We believe that the whole system of review in this state, the modes of preparing and presenting cases on motions for new trial, and on appeal, in civil actions, is more cumbrous, involved, abounding in arbitrary and technical rules, burdened by what is popularly known as "red tape," than the methods adopted in most of the other states of the Union. This complicated system is not an essential feature of the reformed procedure, for it is not found in many other states which have adopted that procedure. We believe that a comparison of the California reports for the past ten years with those of New York, Ohio, Iowa, Wisconsin, and other code states during the same period, will show that a much larger proportion of cases have been decided in this state upon mere technical questions of form, not in any way involving the merits of the controversy, than have been so decided in those other commonwealths. This is not the fault of the courts, for their hands are tied. The fault lies in the system imposed on the courts by the legislature. It is a most grave mistake, in our opinion, to reduce all the minute, detailed rules of practice to the rigid, inflexible form of statutory enactment. The recent legal reform in England, while adopting all of the principles of our reformed procedure, and in some respects carrying those principles to greater length than we have done, has carefully avoided this mistake.

This very character of the procedure on review renders a treatise like the present one, which explains and describes the statutory methods in a clear, systematic, and exhaustive manner, a text-book of great practical value to the profession of California. The author's treatment of the subject is full, comprehensive, and minute; his discussion of the rules concerning new trials and appeals, which constitutes the main portion of the work, is thorough and complete. We doubt not that the book will be of great assistance to the bar of the state in their professional labors. At all events, it may suggest to any thoughtful lawyer that a system of procedure on the review of actions which has produced such a great number of decisions in partially settling its rules, and which already requires a treatise in two volumes for its elucidation, ought in the interests of justice to be amended and simplified.

NOTES.

THE supreme court of the United States has recently decided several cases involving grave questions of constitutional law. The most important of these is the legal-tender case of Juillari v. Greenman. The question presented by this case, as stated by Gray, J., delivering the opinion of the court, is, "Whether the notes of the United States, issued in time of war under an act of congress declaring them to be legal tender in payment of private debts, and afterwards in peace redeemed and paid for in gold coin at the treasury, and then reissued under the act of 1878, can, under the constitution of the United States, be a legal tender in payment for such debts."

"Congress," the court says, in conclusion, "as the legislature of a sovereign nation, being expressly empowered by the constitution to lay and collect taxes to pay debts and to provide for the common defense and general welfare of the United States, and to borrow money on the credit of the United States, and to coin money and regulate the value thereof, and of foreign coin, and being clearly authorized, as incidental to the exercise of these great powers, to issue bills of credit, to charter national banks, and to provide a national currency for the whole people in the form of coin, treasury notes, and national bank bills, and the power to make the notes of the government a legal tender in payment of private debts, being one of the powers belonging to the sovereignty of other civilized nations, and not expressly withheld from congress by the constitution, we are irresistibly impelled to the conclusion that the impressing upon the treasury notes of the United States the quality of being a legal tender in payment of private debts is an appropriate means, conducive and plainly adapted to the execution of undoubted powers of congress, and consistent with the letter and spirit of the constitution, and therefore within the meaning of that instrument, necessary and proper for the carrying into execution of the powers vested by the constitution in the government of the United States. Such being our conclusion in the matter of the law question, whether at any particular time in war or peace the exigency is such by reason of unusual and pressing demands on the resources of the government, or of the inadequacy of the supply of gold and silver coin to furnish the currency needed for uses of the government and of the people, it is, as a matter of fact, wise and expedient, to resort to this means, is a political question to be determined by congress when the question of exigency shall arise, and not a judicial question to be afterwards passed upon by the courts. It follows that the act of May 31, 1878, is constitutional and valid, and that the circuit court rightly held that the tender in treasury notes reissued and kept in circulation under that act was a tender of lawful money in payment of defendant's debt to the plaintiff. The judgment of the circuit court is affirmed."

Field, in a long opinion, dissents from the judgment of the court, and from all the arguments advanced in its support. "If there be anything," he says, "in the history of the constitution which can be established with moral certainty, it is that the framers of that instrument intended to prohibit the issue of legal-tender notes both by the general government and the states. The arguments presented by the court and by the advocates of legal tenders amounts to this: The object of borrowing is to raise funds. The annexing of the quality of legal tender to notes of the government will induce parties to take them, and funds will thereby be more readily loaned; but something may be said on annexing any other provision which would give to holders of notes some advantages,

as, for instance, the provisions that notes of the government should serve as a free ticket on public conveyances of the country, or give free ingress to places of amusements, or entitle them to a percentage from revenue of private corporations. The same consequence, ready acceptance of the notes, would follow, and yet no one would pretend that annexation of provisions of this kind, with respect to the property of others over which the borrower has no control, would be in any sense an appropriate measure to execute. There is no invasion by the government of the rights of the third party which may not thus be sanctioned under the pretense that its allowance will lead to the ready acceptance of the government's notes and produce the desired loans."

IN Hurtado v. The People of the State of California, in error to the supreme court of that state, the question involved was whether the provisions of the state constitution and the laws passed to carry the same into effect, authorizing prosecutions for felonies to be by information, after examination and commitment by a magistrate, without indictment by a grand jury, were constitutional. The plaintiff in error, after an examination before a committing magistrate, as provided by section 872 of the penal code of California, had been held to answer for the crime of murder. The district attorney thereupon filed an information against him, charging him with such crime. Upon this information, the plaintiff in error was tried, and convicted of murder in the first degree. Upon an appeal to the supreme court of the state the judgment of conviction was affirmed. Thereupon the trial court ordered the plaintiff in error should be brought before it, that a day for the execution of the judgment should be fixed. In pursuance of said order, plaintiff in error, with his counsel, appeared at the bar of the court, and thereupon the judge asked him if he had any legal reason to urge why said judgment should not be executed, and why an order should not then be made fixing the day for the execution of the same. Thereupon the plaintiff in error, by his counsel, objected to the execution of said judgment, and to any order which the court might make fixing a day for the execution of the same, upon the grounds, that the said plaintiff in error had been held to answer for the said crime of murder by the district attorney upon an information filed by him, and had been tried and illegally found guilty of the said crime, without any presentment or indictment of any grand or other jury, and that the judgment rendered upon the alleged verdict of the jury in such case was and is void, and if executed would deprive the plaintiff in error of his life or liberty without due process of law. The court overruled the said objections, and fixed the time for the execution of the sentence. From this latter judgment the plaintiff in error appealed to the supreme court of the state. That court affirmed the said judgment, to review which the present writ of error was allowed and has been prosecuted. In delivering the opinion of the court, Matthews, J., said: "It is claimed on behalf of the prisoner that the conviction and sentence are void, on the ground that they are repugnant to that clause of the fourteenth article of amendment to the constitution of the United States, which is in these words: 'Nor shall any state deprive any person of life, liberty, or property without due process of law.' The proposition of law we are asked to affirm is that an indictment or presentment by a grand jury, as known to the common law of England, is essential to that 'due process of law,' when applied to prosecutions for felonies, which is secured and guaranteed by this provision of the constitution of the United States, and which accordingly it is forbidden to the states respectively to dispense with in the administration of criminal law."

This view the court refused to adopt, and after an elaborate investigation into the meaning of the phrase "due process of law," affirmed the judgment of the lower court.

In addition to the general doctrine thus stated and illustrated, the following special rules, applying to particular circumstances, have been the subject-matter of decision. If two persons successively appropriate water of a stream by means of their ditches, and a third person turns into the same stream, at a place higher up than the heads of both these ditches, additional water brought by means of his own ditch from another and different stream, without any intention of recapturing the same, the water thus discharged becomes publici juris, to all intents a part of the natural waters of the stream into which it is emptied; and it belongs to the two appropriators according to their priority of right-the one having made the prior appropriation is first entitled to the increased flow to the extent of his appropriation.'

2

A person who had located a mill site on a stream, and appropriated the water for the purposes of his mill, sold and conveyed all his interest in the water of the stream to the proprietor of a ditch above him; held, that he had not thereby lost his prior right to the water which still flowed down the stream after such sale, as against a third party who had appropriated the water below him subsequently to his original appropriation but before his said sale and conveyance. In the case of Strait v. Brown, the supreme court of Nevada decided a point which may be of much practical importance. Although no distinction, in general, exists between waters running under the surface in defined channels, and those running in such channels upon the surface; and although water percolating through the ground below the surface is not governed by the same rules which pertain to running streams; still, subsequent appropriators can not, as agaiust the prior appropriator of the same stream, lawfully acquire rights to the waters of the springs which constitute the source of such stream, simply because the means through which the waters are conveyed from the springs to the stream are 1 Davis v. Gale, 32 Cal. 26. 2 McDonald v. Askew, 29 Cal. 200.

3 16 Nev. 317.