BOOK REVIEWS.

A TREATISE ON THE PRINCIPLES AND PRATICE GOVERNING THE TRIAL OF TITLE TO LAND; INCLUDING EJECTMENT, TRESPASS TO TRY TITLE, WRITS OF ENTRY, STATUTORY REMEDIES FOR THE RECOVERY OF REAL PROPERTY; TOGETHER WITH THE RESULTING CLAIMS FOR MESNE PROFITS AND IMPROVEMENTS; EMBRACING A CONSIDERATION OF COLOR OF TITLE, TITLE BY POSSESSION, AND ADVERSE POSSESSION. By Arthur G. Sedgwick and Frederick S. Wait. New York: Baker, Voorhis & Co.; 1882.

The authors say in their preface: "The principles and practice regulating remedies for the trial of title and recovery of possession of real property are in the main uniform in this country. This may be explained, historically, by the fact that in most of our states the existing statutory remedies are based upon the common law action of ejectment. The system of real actions is practically extinct in America, excepting in parts of New England. It may be stated generally that our modern remedies constitute a single general system of procedure, disguised under a variety of names. The very elaborate title quoted above plainly suggests a work dealing with all kinds of actions and judicial modes of trying and determining title to land; but the volume is substantially a treatise on the legal action of ejectment, discussing the cases when the action will lie, by and against whom it may be brought, the parties, pleading, and procedure, the verdict, judgment, and execution, with various incidents, such as new trials, ancillary reliefs of injunction and the like, mesne profits, damages, and improvements. To this main body of the work are added chapters on possession, adverse possession, claim of right, and color of title. Although the title-page includes" statutory remedies for the recovery of real property," yet so far as we can find after a careful examination, the book wholly omits all consideration or even reference to the important statutory "action to quiet title." The index contains only two references under the head "Action to quiet title." One of these (§ 354), is a paragraph stating that in New York a party desiring to quiet title to land must proceed under the statute for that purpose or by suit in equity, and not by ejectment. The other (§ 586), is a paragraph which says that in Indiana a trial may be had as a matter of right in suits for quieting title, as in actions of ejectment. We have carefully looked through all the chapters and can find no treatment or consideration of the statutory "action to quiet title." This we regard as a very grave omission in a work which professes to treat of trial of title to land. In twenty-two states and territories the "action to quiet title" is established and regulated by stat

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ute, and is extended much beyond the original jurisdiction of equity. In many of these states, especially at the west, the statutory action has come to be the ordinary mode of trying disputed titles. According to the provisions of the statute in a majority of these states, the plaintiff must be in possession in order to maintain the action; but in several of them, namely California, Dakota, Idaho, Indiana, Iowa, Mississipi, Nebraska, and also in Illinois and Minnesota, where the land is unoccupied and unimproved, the plaintiff may be either in possession or out of possession of the land in controversy. The statutes in almost all of these states allow the action to be maintained by persons having either equitable or legal titles; but in Wisconsin and Kentucky, and formerly in Ohio, the plaintiff is required to have a legal title. The reports of the states and territories in the great Mississippi valley and on the Pacific show how exceedingly important this action is in most of them; while in those states which permit the suit to be brought by a plaintiff out of, as well as in, possession, and whose title to the land is either legal or equitable, this statutory action to quiet title has come to be the ordinary means of determining controverted titles, and has to a great extent displaced the action of ejectment. It certainly possesses many advantages over ejectment, arising from the fact that it can take cognizance of, pass upon, and establish equitable as well as legal titles, and even both kinds of titles in the same suit. The failure to consider this purely American action in a work of such a description as the one under notice, seems to us to be a serious omisssion. The concluding chapters on Possession, Adverse Possession, Claim of Right, and Color of Title, we think, from the examination we have given them, will be of much service to the profession. The subjects which they discuss sometimes present questions of great intricacy and difficulty.

A TREATISE ON THE LAW OF PRIVATE CORPORATIONS HAVING CAPITAL STOCK. By Henry O. Taylor. Philadelphia: Key & Brothers; 1884.

The author says in his preface: "The object of this treatise is to give an accurate statement of the law regulating business enterprises which are prosecuted through the instrumentality of corporate organization; to define the rights and liabilities of the different classes of persons interested; and to treat those rights and liabilities according to the manner in which they come before the courts for determination." In a subsequent part of his preface the author states, what is, in our opinion, an undeniable and even patent truth, but one which has been almost entirely overlooked by American decisions and text books, even those most recent. He says: "It is the opinion of the writer that the fiction of the legal person' has outlived its usefulness, and is no longer ade

quate for the purposes of an accurate treatment of the legal relations arising through the prosecution of a corporate enterprise. By dismissing this fiction a clearer view may be had of the actual human beings interested, whose rights may then be determined without unnecessary mystification." The author has here touched upon, although he has not fully developed, a fact which, in our opinion, must ere long be recognized and acted upon by the courts in dealing with the law of corporations. The common law conception of the "legal personality" of the metaphysical entity constituting the corporation, entirely distinct from its individual numbers, arose at a time when corporations were all created by special charters generally granted by the crown; when very few of them were "stock" corporations; when they were mostly perpetual in existence; when absolutely no personal liability was imposed upon the individual corporators, but the legal status of the corporators was wholly swallowed up in the "legal person" of the corporation, and when corporations were in reality, as a necessary result from this creation and legal position, monoplies. In the United States, at the present day, almost all private corporations, whether business or otherwise, are formed under general laws, and in many states the legislatures are expressly forbidden from granting special charters. Under these general laws, persons complying with a few formal requisites can organize themselves into a company for almost any business purpose. The associations thus formed are limited in duration; they are under complete control of the legislature; the individual corporators are all personally liable to some extent and in some manner, and in many instances they are fully liable as though they were the immediate parties and debtors. In truth, except in the features that they can sue and be sued, make contracts, acquire rights and incur liabilities in and by their corporate names, and that a change of membership does not work their dissolution, these associations differ very little in their essential attributes from partnerships.

And yet our American courts, both state and national, have, with few exceptions, gone on and applied the same language, the same conceptions, and the same doctrines to these associations, which were originally applied to corporations as they existed under purely common-law notions and regulations. The English courts have never fallen into this error. Of late years parliament has enacted statutes similar, in their scope and effect, to our general laws for the formation of private corporations. The English courts have never treated the joint-stock companies with limited liability, formed under these statutes, as being identical with common-law corporations, but have always carefully distinguished between them. In our opinion, the American courts must, in time, recognize and enforce the same distinctions.

In pursuance of the thought expressed in our last quotation, Mr. Taylor has adopted an order of arrangement, in dealing with the subject matter, which appears to us both scientifically correct and therefore practically convenient. In the opening chapters he examines the notion of a cor. poration in the Roman law and in the common law, carefully analyses the actual conception in our modern jurisprudence, and points out the resemblances between corporations and certain other legal institutions. In the fifth and sixth chapters he discusses two most important subjectsnamely, the legal relations arising through the promotion of a corporation, and those consequent upon an agreement to take shares in the stock of a corportion to be organized. Chapter seventh, which includes at least a third of the volume, discusses the legal effect of acts done by or on behalf of a corporation-that is, the legal relations between it and outsiders. This chapter treats of corporate powers, and acts of all kinds within and beyond these powers; and includes, among other matters, a section upon a topic of great importance in this country-namely, the status of a body of men incorporated by the legislation of two or more states. The remaining chapters treat of the relations between the state on the one side and the corporation, its stockholders, officers, and creditors, on the other; between the corporation, and its stockholders, officers, and creditors; between the stockholders and the officers and the creditors; between the officers and the creditors; and, finally, among persons of the same class, that is, among stockholders, among officers, and among creditors. This brief summary of the chapters shows that the arrangement is comprehensive, scientific, and practical. From the examination which we have made, we believe that Mr. Taylor's work is a valuable contribution to the literature of the most important subject of which it treats.

Pursuing the subject from the last preceding article, I shall mention another possible and even probable effect of the system under examination, namely:

4th. The uncertainties, discrepancies, and contradictions in record titles apparently regular and perfect which may be produced by the community property system. A little reflection will show that the community property, by virtue of the peculiar doctrines heretofore described, not only may, but almost certainly must, produce uncertainties, discrepancies, and even contradictions in record titles-especially land titles,which are apparently regular, complete, and, perfect. That is, while a claim of recorded conveyances may be complete and unbroken, and may show an apparently perfect title, so far as the recorded instruments are concerned, vested in a certain person A., extrinsic facts not on the record, and which need not be and ordinarily could not be on the record, and which rest perhaps upon verbal testimony alone, may nevertheless show that A. has really no title, or that the title is held by another person B. Or the record may disclose two conflicting chains of title, one of them regular, unbroken, and apparently perfect and vesting the title in A., and the other irregular, broken, imperfect and purporting, so far as it goes, to vest the title in B.; and the latter, by virtue of such extrinsic facts outside the record, shall in reality be the true and legal title. The system of recording all instruments which can affect the title to real estate, is the peculiarity of our American legislation, and exists substantially the same in every state of the Union. The theory of this legislation is, that the proper record of every such instrument should be absolute notice of its contents, and of all the rights, titles, or interests, legal and equitable, created by or embraced within it, to every person subsequently dealing with the subject matter whose duty or interest it is to make a search of the records. The intention is to compel every person receiving such an instrument to place it upon the records, in order that he may thereby protect his own rights as well as those of all others who may afterwards acquire an interest in the same property. The ultimate design is, that the public records should, in this manner,