*

Lottawanna, 21 Wall. 558, it has been solemnly reaffirmed with but two dissenting judges. In applying the rule of the General Smith, in other cases, the following language, bearing upon the question in the case under consideration, has been used: "Materialmen who furnish materials or supplies for a vessel * in a port other than a port of the state where the vessel belongs, have a maritime lien on the vessel" therefor. The Belfast, 7 Wall. 643, per Clifford, J. But not "for materials and supplies furnished to a vessel in her home port." Ib. 645. "A maritime lien does not arise for repairs made and supplies furnished in the home port of the vessel." This "question was put at rest" by the General Smith, 4 Wheat. 443. Per Clifford, J., in The Kalorama, 10 Wall. 211. Ferry Co. v. Beers, 20 How. 393, 402.

We are thus brought to the question in the present case, whether the Albany, within the doctrine of the supreme court, belonged to the State of Wisconsin, where her owner resided, and to which she purported to belong by the words painted upon her stern, or belonged to the State of Illinois, in which she was enrolled. Or in other words, which is the home port? 1. Is it the particular town or city in a state in which the owner resides, and is every other port in the state as well as elsewhere, foreign? 2. Is the vessel at a home port at all ports in the state in which her owner actually resides, although she may be enrolled in another state? Or 3. Does the state in which the enrollment is made conclusively determine the home port or domestic character of the vessel, irrespective of the residence of the owner? To solve these questions let us first seek the aid of adjudged cases. In The Brig Nestor, 1 Sumner, 73, A. D. 1831, on which a lien for supplies furnished in the District of Columbia, for the Nestor, belonging to the port of Portland, Maine, was sustained, Mr. Justice Story said: "The Admiralty has a clear jurisdiction to maintain such suits whenever the supplies have been furnished to the vessel in a foreign port; and every port is foreign to her which is not in the same state to which she belongs. So the doctrine was laid down in the case of the General Smith, and it has never, to my knowledge, been in the slightest degree departed from." "Ports of states other than those of the state where the vessel belongs," says Clifford, J., "are considered as foreign ports." The Lulu, 10 Wall. 200; Ib. 212. "The term "foreign port' in the jurisprudence of the United States," says the same learned judge, in a case on the circuit, "includes all maritime ports other than those of the state where the vessel belongs." Burke v. The Brig Rich, Clifford C. C. 308, 314. And see the illustration put by the same judge in the case of "The Lottawanna, 21 Wall. at p. 594.

The language of the opinion in the case of the General Smith and of Mr. Justice Story and Mr. Justice Clifford above referred to, fairly implies, I think, that the domestic or foreign character of the vessel is determined by the state in which the owners reside, and not by the state in which the enrollment is made. And decided cases (The General Smith, the Nestor, the Chusan, 2 Story, 456), in the statement of them, show that the residence of the owner was regarded, and not the enrollment.

In the case of The Golden Gate, 5 Am. Law Register, O. S. 142, 1 Newbury 308, decided by an able admiralty judge, the precise question was presented, whether the foreign or domestic character of a vessel depended on the residence of her owner or on the port of her enrollment. Judge Wells decided that where these were different the residence of the owners governed as respects the rights and remedies of material-men. And the same reason is given by him as the one which is supposed to underlie the rule in this country denying a maritime lien for supplies to a domestic vessel. Judge

Wells says: "If the owners reside in a foreign country, or in another state, the material-man is presumed to give credit to the boat and also to the owners-because he is not presumed to rely alone on the owners who live so remote and who are beyond the jurisdiction of the courts of his state. If the owners reside in the same state with the material-man, the latter can easily resort to them for payment and readily enforce it in the courts; therefore he may well be supposed to give credit to the owners alone. It is apparent, therefore, that the place of eurollment has nothing to do with the credit that is given; and has, therefore, nothing to do with the question of lien."

A similar principle was approved and applied by Judge Leavitt, in the case of The Superior, 3 Am. Law Reporter, O. S. 622, 1 Newbury, 178. He holds that the place of enrollment is only prima facie evidence of the port or state to which the vessel belongs, and denies the soundness of The Indiana, Crabbe, 479, so far as it decided that the vessel necessarily belonged to the port where she is enrolled.

The exact question whether the home port of a vessel is determined by the residence of the owner or the place of enrollment, arose in The Mary Bell, 1 Sawyer 135, and it was decided by Judge Deady that the state in which the owner resided, and not that in which the enrollment was made, governed. Judge Betts made a similar decision in the Southern District of New York. The Kosciusko, 11 N. Y. Legal Obs. 38. And in the Alida, this learned Judge says: "Where services or supplies-are rendered to a foreign ship, a lien attaches by the general maritime law, and the different states of the federal Union are, in regard to this question, regarded as foreign states to each other." 1 Abbott Adm. Rep. 168. The conclusion accords with the views of Chief Justice Marshall, Selden v. Hendrickson, 1 Brockenb, 396, 403, 1819, where, after stating the law of England, he says: "The same principle applied to the United States, requires, I think, that a port in one state should not be considered as the place of residence of owners who live in another state." If every port, except that in which the owner actually resides, be not for this purpose [the hypothecation of the vessel] a foreign port, I perceive no rule more proper in this country, no rule better adapted to our situation and to the reason of the thing, than to say, that the power of the master to hypothecate, exists in every port out of the state in which the owner resides, where he has no agent."

*

I am aware that in The Loper, Taney's Decisions 500, A. D. 1851, Mr. Chief Justice Taney is reported as laying down a contrary doctrine, and as saying: "The circumstance that the owner or character [of the Loper] was a citizen of another state, would not make her a foreign vessel in the port of Baltimore; the port at which she was enrolled and licensed was her homeport. As she belonged to Baltimore, and the supplies were furnished here, they were furnished at her homeport, and created no lien upon the vessel. This question was directly decided in the case of the General Smith." And this is all of the opinion of the Chief Justice on this point. He enters into no reasoning, and although great weight is due to every expression of this eminent Judge, I think it manifest, from the opinion itself, that his attention was not called to the considerations affecting the question, and that he acted upon the supposition that the case was controlled by the General Smith, and decided it by simply citing and following the judgment of the Supreme Court.

A still different view has been taken as to what constitutes the home-port of an American steamboat en. gaged in inland navigation, by Judge Deady, in the case of The Favorite, 7 Ch. Legal News, 395, which was enrolled in Oregon, and whose owner resided at the

place of enrollment. The learned Judge, after remarking that "under the ruling of the Lottawanna by the Supreme Court, what constitutes the home-port is yet an open question," says, "I think upon reason and convenience, the home-port onght to be the one where the vessel is enrolled. Away from that place, whether in or out of the state where her owner resides, she is supposed to be in itinere, and therefore relying upon her credit for the purchase of supplies to continue the voyage." And he held, that materal-men residing in Oregon were entitled to a maritime lien, if they resided at a town or port in the place different from the one where the owner resided and the boat was enrolled. I do not think the Judge intended to overrule his decision in the case of The Mary Bell, supra, and however convenient the doctrine he held would be, and however desirable it might be deemed as limiting the doctrine of The General Smith, denying a lien upon domestic vessels, I have not been able to persuade myself that it is consistent on this point with the judgments of the Supreme Court.

All of the adjudications in respect to the rights and remedies of material-men, since the case of the General Smith, have proceeded, I think, upon the notion that vessels owned in the state where the credit was given, are to be considered as domestic vessels, and there is in such cases no maritime lien; if owned without the state, there is a maritime lien, and I shall decide the case upon the assumption that this view is the one we are required to take by the decisions of the Supreme Court.

I have not discussed the question upon principle. It were profitless to do so. I content myself with the observation that it would doubtless have been better, in view of our local situation, if the Supreme Court had adopted the rule of the general maritime law, recognizing a lien for proper repairs made and supplies furnished on the credit of the vessel, without respect to the states in which the creditor and owner of the vessel reside. The doctrine of the Supreme Court, which it is safe to say would never have been adopted if the court could have had the benefit of the reflected light of subsequent experience, when applied to vessels navigating on lakes and inland waters, traversing several states, has produced, and if it remains, will continue to produce confusion, inconvenience, hardship and injustice between creditors equally meritorious. But the Supreme Court, in The Lottawanna, in the face of an unanswerable dissent, stands by, rather than vindicates, the doctrine of the General Smith, discriminating between the rights and remedies of domestic and foreign material-men. The inferior courts must accept its exposition of the law as authoritative until that tribunal changes its judgment or Congress shall, as in my judgment it ought, make that provision for domestic creditors which is so ineffectually provided by the boat laws of the different states.

My understanding of the decisions of the Supreme Court as to the rights and remedies of material-men lead me in this case to these conclusions:

1. That the Albany "belonged" to the state of Wisconsin, and that every port in that state was, as respects material-men, the home-port of the vessel. The libelant vending in, and extending credit in that state, is, under the view of the Supreme Court, conclusively presumed to have extended it to the owner who resided in the state or to the master, and has no implied or maritime lien on the vessel.

2. That as respects the rights and remedies of material-men, the home-port or state of a vessel is the state wherein the owner resides, and not the state or district in which she is enrolled, where the laws are different. To hold in such a case that the enrollment controlled, would destroy the only foundation upon which a

distinction between the rights of domestic and foreign material-men has been made, viz: that the former are presumed to extend credit to the owner, whom they are presumed to know, or whom, at all events, they may pursue in the courts of their own state. The St. Lawrence, 1 Black. 527; The Lottawanna, 21 Wall. at p. 593. The decree of the district court is reversed, and a decree will be here entered dismissing the libel at the costs of the libelant. DECREE ACCORDINGLY.

BANKRUPT ACT—NUMBER AND VALUE OF CREDITORS-ATTACHING CREDITORS.

RE SCRAFFORD.

United States Circuit Court, District of Kansas. Before HON. JOHN F. DILLON, Circuit Judge.

Creditors who have obtained liens by attachment within four months before the commencement of proceedings in bankruptcy, are not to be reckoned in computing the proportion of creditors who must unite in an involuntary petition.

The facts appear in the opinion.

Judson & Motter, attorneys for petitioning creditors; J. E. Taylor, A. Wells and Doniphan & Reed, contra.

DILLON, Circuit Judge, in delivering his opinion orally, in substance said: This case is before me on a petition to review the action of the district court, and the facts are as follows: Isaac T. Hosea filed his petition for adjudication of bankruptcy against Charles G. Scrafford, alleging, among other things, that he constituted one-fourth in number of the creditors, and that his claim was one-third in amount of the indebtedness of the alleged bankrupt. This was denied by Serafford, who appeared by attorney and filed a list of his creditors, with a statement of his indebtedness. Certain other creditors then appeared, alleging that they had levied attachments on the debtor's property, within four months before the commencement of the proceedings, and asked leave to oppose the adjudication. This leave was granted them, and the court proceeded to inquire into the number of creditors and the amounts of their respective claims; whereupon, it was moved on part of the petitioning creditors, that all persons who held such attachments, be excluded from the count as to the number of creditors and amount of indebtedness necessary to be joined in the petition. This motion was overruled by the district court, and notice being given of the proposed filing of a petition for review, the case was stayed at this point, and no further proceedings have since been had.

The object of the bankrupt law is, to secure an equal distribution of the estate of the bankrupt amongst all of his creditors, and in order the most effectually to accomplish this, creditors who have obtained preferences are excluded from participation in the proceedings until after the election of an assignee. I can see no reason why attaching creditors should not be governed by the same rules which apply to other creditors, whose debts are secured by preferences, which the adjudication will defeat. Indeed, as all attachments levied within four months before the commencement of the filing of the petition would be dissolved ipso facto, by the operation of the bankruptcy proceedings, persons holding liens by such attachments would seem to have a peculiar interest in defeating an adjudication, and for this reason should not be reckoned for the purposes of those proceedings as creditors of the alleged bankrupt. Of course, they could not be counted if the attachments

were sued out with a view of obtaining a preference over other creditors, and as in most cases, a ground of attachment is also an act of bankruptcy, the presumption would be strong that such was the object of an attaching creditor. A person with a knowledge that his debtor has committed an act of bankruptcy, should not be permitted to obtain by attachment, and hold a preference over other creditors. I do dot think that creditors, any more than the debtor, should be permitted so to defeat the object of the bankrupt law. A secured creditor can not vote for assignee, nor can he have his debtor adjudged a bankrupt. If he can not be counted in favor of the proceedings to put the debtor into bankruptcy, because he is secured, there is no principle upon which he could be counted against them.

My conclusion therefore is, that when a creditor of an alleged bankrupt, either by an arrangement with the bankrupt, or by attachment, obtained a security or lien for his claim in fraud of the bankrupt act, or which would be avoided by that act if the debtor is adjudged a bankrupt, he can not be counted, nor can his claim be estimated, in computing the number and value necessary to be joined in the petition.

REVERSED.

EQUITY PRACTICE IN FEDERAL COURTS.

O'HARA ET AL. VS. MACCONNELL ET AL.

Supreme Court of the United States, October Term, 1876.

1. DECREE AGAINST MINOR AND FEME COVERT-GUARDIAN NOT APPOINTED.-It is error, for which a decree in chancery will be reversed, to make such decree against a woman whom the bill shows to be both a minor and feme covert, with no appearance by her or for her, without appointing a guardian ad litem.

2. FINAL DECREE-NO APPEARANCE.-It is also error to render a final decree for want of appearance at the first term after service of subpoena (Equitq Rules 18, 19), unless another rule-day has intervened.

3. TRUST ESTATE-TRUSTEE MUST BE JOINED.-Where the object of the suit is to divest a feme covert or minor of an interest in real estate, the title of which is in a trustee for her use, the trust being an active one, it is error to decree against her without making the trustee a party to the suit.

4. HOW LONG RIGHT OF APPEAL EXISTS.-The making of the conveyance as ordered by the decree does not deprive defendant of the right of appeal.

5. Neither a subsequent petition in the nature of a bill of review, nor anything set up in the answer to such petition on which no action was had by the court, can prevent a party from appealing from the original decree.

APPEAL from the Circuit Court of the United States for the Western District of Pennsylvania.

Mr. Justice MILLER delivered the opinion of the court:

Michael O'Hara was adjudged a bankrupt December 9, 1867, and the appellees duly appointed assignees, to whom an assignment of his effects was made in due form. As such assignees they filed in the Circuit Court for the Western District of Pennsylvania, the bill in chancery on which the decree was rendered from which the present appeal is taken. The bill alleges that a conveyance of certain real estate made by said O'Hara and his wife, Frances, on the 10th day of July, 1866, to William Harrison and G. L. B. Fetterman, in trust for the use of the wife, was a fraud upon creditors, and prays that the deed be declared void, and that O'Hara, his wife, and Barr, her guardian, be decreed to convey the land to complainants, that they may sell it for the benefit of O'Hara's creditors, free from the embarrassment created by said deed of trust.

The bill also alleges that Mrs. O'Hara is a minor, and that Mr. A. M. Barr is her legal guardian.

A subpoena was issued on the 5th day of April, 1869, and served on the 7th on O'Hara, for himself and wife, and on Barr, and on the 7th day of May following, without appearance, and without answer by any defendant, the bill was amended, was taken as confessed, and a final decree rendered. This decree enjoined the defendants from setting up any claim to the land, and ordered all of them to convey and release the same to the assignees, and in default of such conveyance within thirty days, Henry Sproul was appointed commissioner to do it in their name. A copy of this decree was served on the defendants May 10th, and on the 14th of June the order was complied with by a deed made by O'Hara, his wife, and Barr, which on its face purports to be in execution of the order, and for the consideration of one dollar. It will thus be seen that, within less than five weeks from the filing of the bill, and without any actual service of the writ or other notice on her, a decree was entered against a woman who was both a minor and a feme covert, without the appointment of a guardian ad litem, without any appearance by her or for her, depriving her of fourteen acres of land now within the limits of the city of Pittsburgh. It is from this decree that she appeals.

By the 13th rule of practice of the courts of equity of the United States, as it stood when the subpœna in this case was served, a delivery of a copy to the husband was good, where husband and wife were sued together; but the rule was amended by this court in 1874, so as to require a personal service on each defendant, or by leaving a copy for each at his or her usual place of abode, with some adult member of the family. The service in the present case would not now be good, though it must be held to have been so at the time it was made.

It would be very strange if a decree obtained under such circumstances could stand the test of a critical examination. We are of opinion that there are several errors sufficient to justify its reversal.

1. It was the duty of the court, where the bill on its face showed that the party whose interest was the principal one to be affected by the decree was both a minor and a feme covert, and that no one appeared for her in any manner to protect her interest, to have appointed a guardian ad litem for that purpose. If neither her husband, nor he who is styled her guardian in the bill, appeared to defend her interest, it was the more imperative that the court should have appointed some one to do it. There is no evidence in the record except the statement in the bill, that Barr was her guardian. If he was not, then there was no one served with notice, whose legal duty it was to defend her. If he was her guardian, there is no evidence of the precise nature of his duties or power, as there are several classes of guardians. As to the particular property now in contest, she had a trustee in whom the title was vested for her use, and whose duty it would have been to protect her interest in it; but strangely enough, he was not made a party. It was, therefore, error in the court to proceed to a decree without appointing a guardian ad litem. 1 Daniells' Chanc. Practice, 160, Chap. IV., $9; Coughlin's Heirs v. Brents, 1 McLean, 175; Lessee of Nelson v. Moore, 3 Ib. 321.

2. If Mrs. O'Hara had been under no disability, it was error to have entered a final decree for want of appearance on the return day of the writ or during that

term.

"According to the practice of the English chancery court," says Mr. Justice Washington in Pendleton v. Evans' Executor, 4 Wash. C. C. R. 337, "a bill can not be taken pro confesso after service of subpœna; and even after appearance, until all the processes of con

tempt to a sequestration have been exhausted, after which the bill is taken pro confesso, and a decree passes which is absolute in the first instance." He then comments on the practice of the New York chancery court, which, instead of a proceeding in contempt, required a rule to answer to be served on the defendant, and if this was not obeyed, the bill might be then taken pro confesso. He then adds: "The principle which governs the practice in both these courts, is that the defendant shall not be taken by surprise, but shall have sufficient warning before a decree is entered against him by default." He then states the practice by the rules adopted by the Supreme Court for the federal courts, as follows: "If the answer, the subpœna being returned executed, be not filed within three months after the day of appearance and bill tiled, then defendant is to be ruled to answer; and failing to do so, the bill may be taken for confessed, and the matter thereof be decreed immediately; but this decree is only nisi, to be made absolute at the term succeeding that to which service of a copy of the decree shall be returned executed, unless cause to the contrary be shown." And in the case of Read v. Consequa, 4 Wash. C. C. R. 180, where a bill on which an injunction had been allowed had remained unanswered, and without appearance of defendant, who had been duly served five years before, he refused to grant an order taking the bill pro confesso because it would be irregular. What a contrast to the speed with which the decree was entered in the case before us.

Rules 18 and 19 of the equity practice as now existing have modified those which are mentioned by Judge Washington; and unless the defendant demur, plead, or answer, on or before the rule-day next succeeding his appearance, the plaintiff may enter an order in the order-book that the bill be taken pro confesso, and the matter thereof decreed at the next succeeding term. But in the case before us, the final decree was entered on the day fixed for appearance, or at most at the same term.

The standing rule now requires defendant to plead by the next rule-day after appearance, which is the same as if a special rule were taken on him to do so. It is, therefore, clear that the final decrée could not be made, even under the present rules, until the term of the court next succeeding the one at which it was rendered.

The remarks of Mr. Justice Washington show that these rules are not merely technical and arbitrary, but are made to prevent a defendant from losing his rights by surprise.

3. The legal title to the property in question was held by Fetterman in trust for Mrs. O'Hara. The trust was not a naked or dry trust; for he was empowered, with her consent, to sell it and reinvest the proceeds on the same trusts, or to mortgage it, and with the money so raised purchase other real estate. How the decree can clear the property of this trust without having the trustee before the court, it is difficult to see. This was the object of the suit; but how can it be made effectual for that purpose in the absence of the person in whom the title is vested? We think that in a case like this, where a woman, under the double disability of coverture and infancy, has a trustee in whom the title of the property in controversy is vested for her use, the court should have refused a decree until he was made a party.

It is said that after making the deed which the court ordered, the appellant is bound by it and can not now prosecute this appeal. The principle is unsound. The deed recites on its face that it is made under the order of the court. The parties must either have obeyed the order of the court, or taken an appeal and given a supersedeas in a sum so large that they were probably unable to

do it. "In no instance within our knowledge," says the court in Erwin vs. Lowry, 7 How., 184, "has an appeal or writ of error been dismissed on the assumption that a release of errors was implied from the fact that money or property had changed hands by force of the judgment or decree. If the judgment is reversed, it is the duty of the court to restore the parties to their rights." That was a case where the appellant received the money which, by the decree, he recovered of the appellee, and is, therfore, a stronger case than the present, as his action would seem to ratify the decree.

About three years after this decree, appellants filed a petition in the circuit court in the nature of a bill of review to set it aside. To this petition the appellees filed an answer, in which, among other matters, they set out a copy of another deed made by O'Hara and wife the day after (as they allege) Mrs. O'Hara became of age, and they rely on that deed here as a bar to the appeal.

It is sufficient now to say, as to that deed, that it is long subsequent to the decree and apart from it. Its validity and force must stand or fall on its own merits, wherever and whenever they may be tried, in any issue made on them. It has nothing to do with the appeal which regards the errors of the decree, and which the appellant has a right to have reversed. When this is done, and she is placed where she ought to be in that regard, the effect of the deed now under consideration may, perhaps, be decided on a supplemental bill setting it up as matter occurring since the commencement of the suit, or by the appellees dismissing their present suit and relying on the title acquired by that deed.

Another equally conclusive reason why we can not consider any other matters arising under the petition and answer is, that there is no order, decree, or other action of the court on them. The record closes with the bill and answer, the latter filed May 23, 1874, and the present appeal allowed August 4, 1874.

We, therefore, take no notice of this subsequent pleading, but reverse the original decree and remand the case to the circuit court for such further proceedings as to right and justice may appertain.

BOOK NOTICES.

FIELD'S INTERNATIONAL CODE, SECOND EDITION. Outlines of an International Code. By DAVID DUDLEY FIELD. Second Edition. New York: Baker, Voorhis & Co., 1876.

A Code, according to the meaning given to it by the author of this volume, is a digest of law, stated in distinct propositions, and arranged in methodical order; and an International Code is in effect a comprehensive treaty between the nations assenting to its adoption, and thereby giving to it the force and effect of law. Sovereignty and equality are among the essential attributes of every nation, and thus each nation is exempt from all foreign interference with its action within its jurisdiction, limited only by the compacts, usually in the form of treaties, to which it becomes a party, and by those principles of universal justice which are recognized as binding upon every State. It is, of course, understood by all that the Code framed by the distinguished author of the work above entitled has not received the assent of any nation. A formulated International Code has never yet been adopted. One of the leading purposes of Mr. Field, in the present volume, and of his labors as a member of the Institute of International Law, which was founded at Ghent in 1873, and of the Association for the Reform and Codification of the Law of Nations, founded at Brussels in 1873, and which met at the Hague in 1875, and at

Bremen in 1876, is to demonstrate both the practicability and the desirableness of such a Code. The present work is a concise statement of the principles of the Law of Nations, as recognized by the leading powers of the civilized world in their intercourse with each other.

The history of this undertaking on the part of Mr. Field is briefly this:

In September, 1866, he recommended to the British Association for the Promotion of Social Science the formation of a complete Code of the Public Law, to be presented, after careful and thorough revision and amendment, to the attention of Governments, in the hope of its receiving, at some time, their adoption for the government of the nations and their members in their relations with each other. The proposition, which was approved by the Association, "embraced not only a codification of existing rules of International Law, but the suggestion of such modifications and improvements as the more matured civilization of the present age should seem to require. The purpose was to bring together whatever was good in the present body of public law, to leave out what seemed obsolete, unprofitable or hurtful, and then to add such new provisions as seemed most desirable."

This project of a Code is founded upon the accepted usage of nations, upon treaties, and the opinions of eminent writers upon international law and the authoritative decisions of the judicial tribunals of Great Britain and the United States, and contains such provisions for international regulation in time of peace and of war as it is supposed would, in substance, be recommended by wise statesmen and jurists, if the leading powers on each side of the Atlantic would consent to their formal adoption.

We firmly believe in the practicability of a Code of International Law. Of this there can be little doubt. The labors of Mr. Field in the volume before us are a demonstration of such practicability. And of the desirableness of such a Code there can be as little question. The great obstacle in the way is, to secure the assent of the leading powers to a formulated Code. But this will certainly come, as a result of the more facile and easy and rapid intercourse brought about by the steam engine and the electric telegraph. For example, the present Code contains proposed provisions of a general character in respect to international postal service; and Mr. Field, in his preface, well points out that the late postal treaty made between sixteen different nations proves the practicability of a general treaty concerning one subject; and if practicable as to one important subject, why not as to many others?

Such a Code would lead naturally to the formation of a tribunal or tribunals for the adjustment of disputes to be settled according to its provisions, and thus peaceful international arbitration or enlightened and impartial adjudication would largely supersede an appeal to force. To such a benign result the minds of some of the best thinkers and most considerate and sagacious statesmen are rapidly tending. It will surely come in the future, and the experience of the last few years gives strong hope that it is in reversion for the world at no very distant day. This work is a monument of the wide and ripe learning of the author, in which he and his country may justly feel great pride. J. F. D.

EWELL ON FIXTURES.-A treatise on the Law of Fixtures. By MARSHALL D. EWELL. Chicago: Callaghan & Co., 1876; pp. 565.

This book is essentially a Western production. It was stereotyped and printed at the office of our valued contemporary, the Chicago Legal News, and its beautiful appearance fitly embodies and represents the dili

gent labors of the author. The complexity of the law of fixtures, and the conflict of authority upon the subject among courts and judges of the highest respectability, are but too well known. The author quotes the observations of Lynch, J., In re Trevy, L. T. N. S. 193, A. D. 1866, that "No subjects in the law are more difficult to deal with than the questions raised as to fixtures. The cases are legion; and each new case seems only the more to disturb any fixed or certain rule that seemed deducible from former cases." Few will dissent from the statement that the law of fixtures is one of unsurpassed difficulty, and that the cases are legion. But we are hardly prepared to say that the effect of the adjudications is to complicate and disturb, rather than to elucidate and settle. On the contrary, a perusal of this volume will show that, on many points formerly disputed, the law may now be considered as clear. And whoever traces the history of the growth and development of the law on the subject will see that the constant tendency of the judicial mind has been towards the emphasizing the importance of intention, actual or presumed, from the character, relations and purposes of the property, as an element of controlling and frequently decisive import

ance.

The profession are familiar with the excellent work of Mr. Ferard, and with the American edition which appeared in 1855. It is still a valuable book; but if a practitioner can have but one, his preference for the present work will be justified, because it covers the whole ground of its predecessor, and brings the cases, English and American, down to the present year. This is an important feature of the book, and we commend the author's plan of giving the date, both in the table of cases and in the notes of every case which he cites. The importance of a recent work on the subject is well exemplified by the cases upon the question whether railway rolling stock is part of the realty. This point cannot yet be considered as settled, in view of the conflict of decisions. We notice that the author, after citing and referring to the cases, expresses the opinion that the better view is, that rolling stock is personalty (p. 39). This is doubtful, and we venture to think that finally the views of Mr. Justice Miller, as expressed in the Farmers' Loan and Trust Co. v. St. Jo., &c., Railway Co., 3 Dillon C. C. R., 412, 1875, will, where the matter is not controlled by statutable provision, be accepted as the sound doctrine on this subject.

We have no hesitation in pronouncing Mr. Ewell's book to be an excellent one, and in commending it to the profession. D.

FREEMAN ON EXECUTIONS.-A treatise on the Law of Executions in Civil Cases, and of Proceedings in Aid and Restraint thereof. By ABRAHAM C. FREEMAN. San Francisco: Sumner Whitney & Co., 1876; pp.947. This is a new work by the author of the well-known treatises on Judgments and Co-tenancy and Partition. It is in reality a sequel to the author's work on Judg ments for the production of which his previous studies had peculiarly fitted him. An examination of it shows that it covers the whole ground indicated by the title page, from the issue of the execution down to the satisfaction and distribution of the proceeds. In addition, there is a valuable chapter on the modern proceedings "supplemental to execution" derived from the legislation of New York, and very generally adopted throughout the States, and a useful chapter on proceedings in Equity (creditors' bills) in aid of execu tion, and another on bills in equity to enjoin proceedings under execution. There is also a chapter on executions against the person, and another on executions for specific real and personal property.