BOOK REVIEWS.

A TREATISE ON LAW AND EQUITY, AS DISTINGUISHED AND ENFORCED IN THE COURTS OF THE UNITED STATES. By A. J. Peeler. Austin: Swindell's printing house; 1883.

The author says, at the commencement of his preface, in explanation of his work: "The distinction between law and equity is a distinguishing feature in the administration of remedial justice in the courts of the United States. A failure to appreciate and observe this distinction has resulted in the dismissal of many cases. After long and expensive litigation in the court below, it not unfrequently happens, when a case reaches the supreme court of the United States, it is dismissed because brought on the wrong side of the court, or reversed because the differences in pleading and practice between the two systems were totally disregarded. Scarcely a volume of the circuit decisions can be taken up which does not contain such examples of time, labor and money thrown away. No treatise, designed to assist the profession in avoiding the vexation and disappointment so frequently experienced on this subject, has ever been published." We can see no need nor foundation for such a treatise as is indicated by the above title, and described in the foregoing extract. We can conceive that a member of the bar in Texas or Louisiana, where the distinctions between common law and equity are wholly obliterated in the state jurisprudence, might meet with some difficulty from questions growing out of these distinctions in the jurisdiction of the federal courts, with which he was wholly unaccustomed; but in all the other states, where the two systems of law and equity still subsist in the local jurisprudence, any lawyer who is at all familiar with the doctrines of the common law and of equity generally, will meet with no special difficulty in the questions arising from the legal and the equitable jurisdictions of the United States courts.

The United States constitution gives to the federal courts jurisdiction in cases in equity as well as in cases of law. Under this grant it has been finally settled that the federal courts possess the full jurisdiction in equity held by the high courts of chancery in England; and that this jurisdiction exists uniformly and to its full extent throughout the whole union, identically the same in every state, unaffected by any state laws, or by any peculiar system of jurisprudence and legislation adopted by individual states. This being so, it necessarily follows that any treatise describing in full the equity jurisdiction of the federal courts, must be an exhaustive treatise upon the equity jurisdiction and jurisprudence as a whole. In other words, in order to determine the cases in equity over which the federal courts have jurisdiction, and the doctrines which they

apply in the decision of such cases, no other treatise is needed nor even possible than a complete and exhaustive work upon equity as one of the grand departments of our total system of jurisprudence. The author has not, however, confined himself entirely to the matters indicated in the foregoing extracts. As he goes on to say, a large part of the book is devoted to "an outline of the nature and general principles of federal jurisdiction, and of the jurisdiction of the several courts of the United States." A complete and accurate treatise on the jurisdiction of all the United States courts, with a full account of the procedure, practice, and pleadings therein in every kind of suit, would be a book, in our opinion, of great practical benefit to the profession, although the field is occupied by several works which partially treat of these subjects.

THE LAW OF MORTGAGES OF REAL AND PERSONAL PROPERTY, INCLUDING ALSO THE LAW OF PAWN, OR PLEDGE AND COLLATERAL SECURITIES, AS DETERMINED BY THE COURTS OF ENGLAND AND THE UNITED STATES. By Charles T. Boone, LL.B. San Francisco: Sumner Whitney & Co. This little book is one of the duodecimo or pocket volumes, belonging to what the publishers have called the "Practitioner's Series." The author says: "The aim of this work is to present a complete but condensed view of the law relating to the practical subjects of mortgage, pledge, and collateral security, within the compass of a handy volume, uniform with the works now embraced in the Practitioner's Series.' The plan of this book somewhat resembles that of Pollock's Digest of the Law of Partnership and similar works. There are no discussions of general principles, no explanations. The text consists of bare, naked propositions, expressed in an extremely condensed manner, somewhat in the form of the separate sections of a code, with the cases cited in notes at the end of each section or paragraph. From the very extensive ground covered by the work, as indicated in the title, it necessarily follows that the treatment of the various topics must be very perfunctory, and the statements of doctrines and rules very brief. The author says

in his preface: "It is presumed that every lawyer is within easy reach of the statutes of his own state, and that he has a fair knowledge of their general provisions; no attempt has, therefore, been made here to give abstracts of statutory provisions relating to the subjects treated of.” This, in our opinion, is a grave mistake. Why could it not be said with equal propriety that "it is presumed that every lawyer is within easy reach of the judicial decisions of his own state, and that he has a fair knowledge of the legal and equitable doctrines established by them,' and thus obviate the necessity of writing any treatise at all? In a textbook intended for the use of lawyers in all the states, and dealing with a subject which forms an important part of the jurisprudence of every

state, its practical value will be greatly lessened, even if not almost destroyed, unless it deals with the statutes of each state relating to the subject matter. A really valuable treatise must describe the law as it actually is in all the states where it is intended to be used, and not merely describe an ideal or theoretical system of law which perhaps does not exist in a single commonwealth. The time has passed, in our opinion, when a legal text writer could ignore the statutory legislation upon the subject matter of his work. In no other country are text-books, intended as practical hand-books for the profession, written upon such a plan. While we must confess a serious doubt whether books of this kind will prove to be of any real benefit to the profession, we must also say that Mr. Boone has done the work which he intended to accomplish in this volume, in a very careful, thorough and conscientious manner.

Fraudulent MORTGAGES OF MERCHANDISE A COMMENTARY ON THE AMERICAN PHASES OF TWYNE'S CASE. By James O. Pierce. St. Louis: F. H. THOMAS & Co.; 1884.

Since the sweeping changes made by the civil code in all the common law conceptions and doctrines as to chattel mortgages, the question discussed in this volume can rarely, if ever, arise in California. The book is a monograph upon fraudulent mortgages of chattels, and especially upon that form of chattel mortgage where the mortgagor of a stock of goods is permitted to go on and sell them to purchasers who would take them free from the lien of the mortgages. Upon the validity of such mortgages there has been, strange to say, some conflict of judicial opinion. The author maintains, upon principle and upon the weight of judicial authority: 1. That a mortgage of a stock of goods in trade, under which the mortgagor is permitted by the mortgagee to sell the goods at his discretion in the usual course of his business, is inherently and essentially fraudulent as to the creditors of the mortgagor, without reference or inquiry as to any assumed intent of the mortgagor; and, 2. This is still so in case the agreement or understanding between the mortgagee and mortgagor, permitting such sale, is not shown upon the face of the mortgage itself, but is proved by or inferred from evidence aliunde. We fully agree with the author in both of these conclusions. We will only add that the book contains some most admirable and, in our opinion, accurate discussions and conclusions as to the nature of fraud in general, as to fraudulent intent, "fraud in law," fraud in fact," and fraud upon creditors, questions concerning which a great deal has been written that is blind and confusing, as well as much that is clear, accurate and convincing. These general discussions will give a value to the book beyond the mere special purpose for which it was written.

Having stated so far as was necessary, in the preceding article, the leading features of the system, I now purpose to suggest in a brief manner, some of the most striking anomalies, and some of the possible or probable effects which may be more plainly and seriously felt in the future, even if at present they are exhibited only to a partial extent.

1. The first of these peculiarities which I shall mention, is, that on the death of a husband, the administration and settlement of his estate should and must include and dispose of all the community property, real and personal, which stands in the name of his wife; that is, all such property of which the legal title, according to the common law nomenclature and conceptions is vested in her. Whether she does in reality hold the legal title to such community property, or whether it is held by the husband, although apparently acquired by her, are questions which will be examined in the sequel. It is sufficient at present to say that all community property acquired by the wife, and held in her name, as much belongs to the "community" as that acquired by the husband and standing in his name; and it is to be treated in all respects in exactly the same manner. All such property, although standing in the name of the wife, with the legal title apparently vested in her, should therefore be inventoried, and should come under the control of the administrator or executor, to be administered, disposed of, and distributed as any other community property belonging to his estate. Furthermore, the husband has the same power of testamentary disposition over all such community property held by or standing in the name of his wife, which he has over the other community property of his estate;that is, he may devise or bequeath one-half of the residue left after all the debts and expenses, chargeable upon it in the course of administration, are paid.

The practical result is, that on the death of a husband, it is both the power and the duty of his administrator or executor to enquire and ascertain what property, real or personal, held by the wife, or standing in her name, or acquired by her, is community property, and to claim and include all such property as part of the assets of the decedent's estate.

In making this inquiry, he must proceed upon the settled principle that all property, real and personal, held by the wife or standing in her name, which was acquired by her during the marriage, except that which she acquired by direct conveyance or transfer from her husband, is presumed to be community property, and the burden of proof rests upon her to show it to be her own separate estate by clear, unequivocal, convincing evidence. Unless she had been living separate and apart from her husband in the manner described in the civil code (§ 169), even her accumulated earnings would be community property, and would be subject to the claim and disposition of the administrator, in any view, for all purposes except payment of the husband's debts. And if I am correct in the interpretation given to § 168 in a former article, such earnings would be liable, in the settlement of his estate, for those debts of the husband which were community debts." If an administrator or executor should neglect to include such property as assets of the decedent's estate, he would violate his duty, and could be compelled to do so by a proper proceeding in the probate court. These conclusions may appear strange to a lawyer familiar with common law rules or with the systems prevailing in most of the other states of the Union; but they follow directly and inevitably from the definitions and other provisions of the civil code, and from the doctrines established by judicial decision, concerning community property.

2. The second peculiarity which I shall examine is the real nature of the interest, estate or ownership of each spouse in the community property. Much of our familiar common law notions as to legal title acquired by conveyance, assignment, etc., must be abandoned in determining the real nature of the system created by the code. From a comparison of all the provisions of the civil code, the conclusion seems irresistible that, whether acquired by the wife or by the husband, whether standing in her name or in his, whether conveyed to her or to him, the real, present, legal title to all the community property is vested alone in the husband during the marriage; the wife's interest in it during the marriage is only inchoate-a mere expectancy. Even if land, being community property, is conveyed to the wife during marriage, she takes no real title in it; the whole title, both real and equitable, at once vested in the husband by means of the deed to his wife. It is true there are some dicta opposed to this view, but they will not endure a moment's analysis. A very early statute of this state gave the husband absolute power to dispose of" the community property, and did not, like our present code, expressly except the power of "testamentary disposition." In the early case of Beard v. Knox,' the court held that, from other statutory provisions, especially those defining the wife's 15 Cal., 252, 256.