attacking a will which has taken the interest of the heir away from him. All that remains to the heir is the personal right to attack the will. Clearly the judgment of a creditor would give him no lien in such a case; nor would normally the assignment of his claim in the property pass this right of action to the purchaser. Therefore it would seem, from the standpoint of strict logic, that the right of the plaintiff derived from the heir would depend on whether or not the will had been probated; but as a matter of policy and practice, there is no reason for such a distinction. Practically the interest of the plaintiff is the same the day after the probate as it was the day before probate. All the reasons of policy and equity that enable him to contest the will before probate apply with equal strength after probate, and his case is undoubtedly within the spirit of the statutes that allow such contest after probate. It seems just and desirable to allow him to contest in both cases rather than none in case the distinction is removed, and surely the paucity of cases on this point should relieve the mind of any court which feared a flood of litigation in case the bars were let down.

In the principal case the Maryland court was considering an action to caveat a will, brought by a judgment creditor before probate. It would seem as though the plaintiff should have been allowed to maintain his action; for, since the action was brought before probate, he had an interest in the property which should be sufficient to support the action, even under the stricter rule. A fortiori he should recover under the broader rule.

Eugene J. Conroy.

New York Law of Evidence.
Pine). pp. xl, 860. 1926.
New York City.

Arthur F. Curtis (and George M.
Matthew Bender & Co. Albany and

When the prophet said, "Of the making of books there is no end and much learning (italics ours) is a weariness to the flesh," he presumably did not refer to the quantity of human knowledge but to the grinding process by which alone knowledge may be acquired. The word learning, therefore, is a verb and not a noun. No other interpretation of this passage will satisfy the heart of the student of law who labors to keep his head above the rising tide of printed pages which daily threatens to engulf him. It is his right to demand that each new book shall justify its existence. This demand, with entire propriety, becomes more positive when the book assumes a narrow or unnecessarily provincial outlook.

Such an outlook is more likely to be assumed in writings dealing with procedure than elsewhere. There is too commonly a feeling that procedure is a thing apart; that it is not only possible but even proper for a given state to assume its own self-sufficiency and to ignore the pronouncements which are accepted in other jurisdictions. It is submitted that such an attitude is fatal to a rational development of procedure and tends only to emphasize and magnify those errors which are everywhere present. This is markedly true in the field of Evidence which is so largely a matter of a psychology that finds no limitations in imaginary geographical lines. There is no field of law which so positively demands a broad outlook, and a continuing reconsideration of local rules in the light of general experience. There is no field in which blind adherence to rules is so likely to perpetuate inexcusable error.

It would seem that at the very outset the writers of this book have fallen into at least three errors. First, they have assumed that the decisions in the state of New York are now sufficiently clear, sufficiently numerous and sufficiently comprehensive to furnish a safe and adequate basis for the preparation of a treatise upon the law of evidence. Secondly, they assume that an adequate statement of the rules of evidence may be made without a statement of "the theory and science of the law." Thirdly, they in their preface assert that "there is not at the present time among the numerous works on the subject, a work in a single volume covering the law of evidence as declared and established by the New York cases." This assertion wholly ignores the very satisfactory book by Dean Richardson, which on the whole does a much better job than the work now under consideration, and, a matter of no small importance, does it in much smaller compass. A comparison of the manner in which the topic of "Admissions" is treated by these two writers will prove immediately revealing.

Nothing short of a Blackstonian complacency could have evoked the following statement in the publisher's announcement of this work:

"This book has a local mission. It is designed to aid New York lawyers in ascertaining the controlling principles of Evidence. Hence discussions based upon decisions of courts of other jurisdictions are eliminated. The principles of Evidence stated may be ancient and of universal application, but, in stating them, New York cases as determined by New York Courts are cited. The rules stated, discussed and applied, are the New York Rules of Evidence, based upon the most recent authorities."

Nothing is more certain than the unreliability of the suggestion that the rules of evidence are ancient and universal or the suggestion that the courts of New York are uniformly in accord with the "weight of authority" or the implied suggestion that the rules announced in this state are uniformly those which are most desirable. Careful investigation will show that there is a full quota of bad or doubtful rules which find support in the decisions of the courts of the Empire State.

Assuming, but not for a moment admitting, that it is possible and safe to base such a work upon the decisions of a single jurisdiction, we still must consider whether the job is well done. The authors have lived up to their avowed purpose to omit the underlying philosophy of the subject. The attempt has been to give merely a picture of the law as it now is. This is well typified by the material upon Admissions and Confessions in Chapters XI to XIV. It is submitted that this is a matter which belongs to the digest rather than the text book and that on the whole the material is more easily accessible in the digest.

This book has no table of cases. It is, therefore, impossible to judge the thoroughness with which the authors have done the job of digesting the law of this state. It is impossible also to discover, save by laborious search, what treatment has been accorded any given decision. This omission makes it more necessary to have a full index of topics and points. This need has not been satisfactorily met, as will be discovered if one, for example, tries to find the rule regarding the use of evidence illegally obtained, or regarding Declarations Against Interest.

The general arrangement of topics in the book is not such as to make up for these defects. This arrangement is sporadic and disconnected. There is little continuity. No fleeting glimpse of a science of evidence is offered to aid the reader to thread his way through a dense forest of isolated rules. This arrangement of material falls into the same group as that classification of harms to the person which groups together all injuries to the head, or arm, or leg regardless of how sustained. The reader must be his own philosopher and guide. One who already knows and understands the underlying spirit and fundamental relationships in the field of evidence may be able to discover in this book what the "New York rule" upon a given point now is, but the novice will not find in this work the inspiration to undertake the changes in the rules of evidence which are daily becoming more imperatively necessary.

A few examples, chosen somewhat at random, will illustrate the basis of the foregoing complaint. In Chapter XXXIX we find no discussion of the relation between the rule at common law and the present New York rule regarding testimony at a former hearing. Section 813 gives no adequate suggestion of the vacillation of the New York courts upon the question as to whether an ancient deed may be received in evidence without supporting proof that there was possession under it. Section 641, dealing with proof of reputation regarding boundaries, does not recognize the dual nature of the problem, but deals with hearsay regarding private boundaries as though the sole test were that of a general or public interest in the boundary in question. Much would have been gained if the authors had taken as the basis of their discussion some broad case such as Turgeon v. Woodward.1

In the matter of Declarations Against Interest, section 635, while recognizing that matters antagonistic to the declarant's interest, which are neither pecuniary nor proprietory in their nature, are equally potent as guaranties of truth, the writers content themselves with the laconic assertion: "Such, however, is not the present state of the law. The interest affected by the declaration must be materialistic, pecuniary, or proprietary." There is no hint of the advanced views of Dean Wigmore, our greatest authority on evidence. There is no mention of the break in the line of authority produced by the enlightened decision in the Hinds case.2 Nor is there mention of the dissent of Mr. Justice Holmes in Donnelly v. U. S.3

Similarly, the discussion of Dying Declarations fails to suggest that any court ever admitted such a declaration in a civil case. The authority of this rule is made to appear unquestioned by the omission of such decisions as the Littler case and of the Kansas cases which have taken an advanced position upon this subject."

In Chapter XI we find no attempt to classify Admissions as exceptions to the Hearsay rule or as anything else. We are given no hint of the illuminating article by Professor Morgan, of the comment of the late Professor Gifford thereon, or of the subsequent revision by Dean Wigmore of Section 1048 of his treatise. A comparison should here be made with the treatment of the same subject matter in sections 331-336 in Richardson on Evidence.

A natural result of these partial surveys leads the authors of the work under discussion to make generalizations of rather too sweeping a nature, as for example in section 244, where the authors draw certain conclusions regarding the effect of reformed pleading upon admissions in the pleadings. Here the many peculiarities and ofttimes unreasonable rules which exist in New York should lead any

183 Conn. 537, 78 Atl. 577 (1910).

2136 Va. 728, 117 S. E. 843, 35 A. L. R. 431 (1923).

220 U. S. 243, 33 Sup. Ct. 449, 57 L. Ed. 820, Ann. Cas. 1913E 710 (1913). 13 Burr. 1244 (1761).

Thurston v. Fritz, 91 Kans. 468, 138 Pac. 625, Ann. Cas. 1915D 212, 50 L. R. A. (N. S.) 1167 (1914); Vassar v. Swift, 106 Kans. 836, 189 Pac. 943 (1920). 30 Yale, L. J. 355.

724 Colum. L. R. 440, 442.

thoughtfully cautious person to be suspicious of any generalization as to principle based wholly upon New York decisions in the field of pleading.

There are scattering references to Chamberlayne on Evidence but these do not fill the gaps which the foregoing instances serve to illustrate. It is difficult to see what this book has contributed, beyond a reasonably careful restatement of the pronouncements of the New York courts. There is no reason to expect it to supplant the digests on the one hand or the more adequate texts on the other. Lyman P. Wilson.

Problems in Positive International Law. By Francis Whitcomb Aymar, Professor of Law in New York University. New York: Nation Press Printing Co., Inc.

This little book is a collection of over three hundred cases stated concisely as to facts and issues involved, but with all the opinion omitted. The student is directed to the case and occasionally to other references in order to answer the questions raised. This method, the author states, is not intended to displace the case method, but to improve it by encouraging the student to develop the habit of stating concisely and clearly the facts and issues of cases rather than their principles.

"Positive International Law," the author declares in the preface, "includes both Conflict of Laws or Private International Law and Public International Law." This definition explains somewhat the unusual selection and arrangement of subjects. Further, no problems but those actually decided in courts of law are included, nor, indeed, any but those decided by British or American courts. These are limitations which, in the reviewer's opinion, are very apt to give the student the impression that International Law is only a subdivision of Anglo-American municipal law. The book appears, however, to be intended for the average law student whose subsequent practice is scarcely likely to touch upon International Law as used in diplomacy, or applied by claims commissions or courts of arbitration. In courses directed towards this end the book should prove a useful mechanical aid to students and teachers.

Robert A. MacKay.

Cases on Federal Jurisdiction and Procedure. By Harold R. Medina, assisted by Bernard E. Kuhn. St. Paul: West Publishing Company, 1926. pp. x, 674.

The average law student is expected to acquire a general knowledge of federal jurisdiction and procedure in the federal courts from his study in Constitutional Law and from the broader procedural courses, for the over-crowded curriculum in many schools makes it difficult to provide a course devoted exclusively to Federal Procedure. In consequence, he approaches this increasingly important branch of