Page:The Green Bag (1889–1914), Volume 24.pdf/434

 Reviews of Books MAITLAND'S EQUITY Equity: also, The Forms of Action at Common Law. By the late Professor F. W. Maitland. Edited by A. H. Chaytor. M. A., and W. J. Whittaker, M. A. University Press, Cambridge; G. P. Putnam's Sons, New York, Pp. 412 (indices). ($4.)

PROFESSOR MAITLAND'S two courses of lectures on Equity and on the Forms of Actions at Common Law, issued posthumously by two edi tors who have performed their task with irreproachable skill, have already met with a most favorable reception, and are likely to become the most widely read book of the great legal historian. While most of their material is to be found in the larger work of Pollock and Maitland on the History of English Law, they present a condensed treat ment which entitles them to be regarded as a legal classic worthy to rank with such treatises as Maine's Ancient Law, and their literary charm smooths over many difficulties for the student and supplies the American lawyer with a concise statement of the historical foun dation of modern principles not else where to be found. Moreover, the value of the work is by no means historical alone, owing to the frequency with which later cases are discussed and the firm grasp which is exhibited of the principles of the modern system of English equity jurisprudence. The clear explanations of the nature of the system of equity will be prized. For example, a valuable definition is given of a trust: "When a person has rights which he is bound to exercise upon behalf of another or for the accom plishment of some particular purpose he is said to have those rights in trust for that other or that purpose, and he is called a trustee." It is likewise

helpful to the reader to be informed that trusts are in their essential nature agreements which ought to be treated as contracts, but which escaped being dealt with in that way because when the cestui first sought to enforce his rights the action of assumpsit was not yet in existence. "In my view," says Professor Maitland, "equity has added to our legal system, together with a number of detached doctrines, one novel and fertile institution, namely, the trust; and three novel and fertile remedies, namely, the decree for specific performance, the injunction, and the judicial administration of estates. Round these, as it seems to me, most of the equitable rules group themselves. . . . £ "We ought not to think of common law and equity as of two rival systems. Equity was not a self-sufficient system; at every point it presupposed the existence of the common law. Common law was a self-sufficient system. . . . Normally the relation between equity and law has not been one of conflict. The fairly good government of the country for the last six centuries shows this. If there were two conflicting systems of law, there must have been no just government at all. Law and equity are like code and supplement, or text and gloss. Equity was a collec tion of glosses on various chapters of the law; a set of additional rules of law. Every part of equity pre-supposed a system of common law. . . . One vast appendix was added to property law under the title of trusts. The bond which kept these various appendixes together under the head of equity was the jurisdictional and procedural bond. That bond is now broken by the Judica