stamp out through the provisions of the Acts on which Mr. Van Dyne's volume is based, the widespread naturalization frauds which in the past have been such a disgrace to the country.

R. D. J.

CODE OF FEDERAL PROCEDURE. Embodying Enactments of Congress, Constitutional Provisions, Established Principles and Court Rules in Force December 1, 1906, and the Bankruptcy Act of 1898, with Amendments and Orders, together with a Collection of Forms and Precedents. WALTER MALINS ROSE. Three Volumes. San Francisco: BancroftWhitney Company. 1907. Pp. xxx, 1-1042; 1043-2044; 2045-3186.

This work is the outgrowth of Desty's Federal Procedure, the ninth and last edition of which was published in 1899. Mr. Rose has attempted to place before the profession a Code of Federal Procedure arranged on the plan of the Statutory Codes of many of the States. In the preparation and arrangement of his work he has made use of Desty's Procedure, but has rearranged it entirely, and supplemented it not only by a better and more practical arrangement, but by large additions of great value. Since there is no statutory code of precedure officially compiled by Congress, the author has gathered around a logical outline, the constitutional and statutory provisions, court rules and decided cases or established principles of procedure in all the Federal courts, except the Court of Claims and the courts of the District of Columbia. The Code proper is divided into two parts by the author, Part I, entitled "Federal Courts and Their Jurisdiction," and Part II, entitled "Federal Procedure." These are followed by three appendices, the first containing the Rules of the Supreme Court, Equity and Admiralty Rules, the Rules of the Court of Claims and the Rules of all the Circuit Courts of Appeal and Circuit Courts of the various Districts. The second appendix contains the Bankruptcy Act and Orders in Bankruptcy, and the third, a very complete set of forms suitable for almost every phrase of practice in any of the Federal Courts. An index of 134 pages at the end of Volume III, is so complete and has been prepared so carefully from the standpoint of the daily needs of the practitioner that it is worthy of especial notice.

The author has also preceded the sections of the code by tables of Parallel References referring to the sections of the

Constitution, Revised Statutes and Statutes at Large, and to the rules of the various courts in chronological or numerical order and to the sections where they are treated in the Code. This, together with the index, make the book a particularly good tool for practical work. There is no list of case citations other than that in the page notes, and there seems to be no necessity for it in a work of this character. The mechanical arrangement of a three-volume work of this character is of the utmost importance, for the practitioner who uses it must feel that he is able to get all there is on the specific subject in which he is interested in the shortest time, and, with the admirable index and the parallel references, such is easily possible in using Mr. Rose's work.

Part 1, on "Federal Courts and Their Jurisdiction" takes up Federal jurisdiction in general, then that of the various Federal courts. A particularly valuable feature of the author's work is the fact that he treats each topic fully and completely, even at the cost of repetition. The work is peculiarily a code in this respect in that the bare law or manner of procedure is stated in concise form with page citations for authority, and practically no space is given to the statement of reasons or theories. Following the chapters on the courts and their jurisdiction, is a chapter on "Fees." This chapter covers the entire field and its compilation from the various rules and statutes and its excellent arrangement make it a most valuable addition to the work.

Part II, is entitled "Federal Procedure." Some of the chapter titles show the system of distinct and separate classification which is characteristic of the work: Chapter 22, Writs and Process in Federal Courts; chapter 28, Parties; chapter 32, Injunctions and Receivers; chapter 47, Arrest and Bail, Civil and Criminal; chapter 58, Mode of taking Appeals, Assignments and Exceptions.

Chapter 42, on "Procedure in Causes under Commerce Laws," is a new and carefully written chapter, and covers the recent legislation on the subject, with citations to such judicial interpretations as were available at the date of publication. Here again the conciseness and orderly arrangement add to the workable value of the chapter.

If a code is of value it is because it is a good workable guide to practice in accordance with its terms. Mr. Rose has given the profession such a book.

R. W. B.

NEW YORK EMPLOYERS' LIABILITY ACT. By ALGER and SLATER. Second Edition by George W. Alger, of the New York Bar. Albany: Matthew Bender & Co. 1907. Pp. xlvi, 291.

This book is written for the use of the New York practitioner. Messrs. Alger and Slater issued the first edition of their work in 1903, soon after the New York Employers' Liability Act of 1902 went into effect, and before it had been judicially interpreted. The cases cited in the first edition are largely English and American decisions from jurisdictions where Ēmployers' Liability Acts had been in force prior to the passage of the New York Act. The new edition by Mr. Alger himself contains, in addition to the very complete citations of cases from other jurisdictions, a full discussion of the New York cases interpreting the Act of 1902. This book does not discuss reasons or theories, but undertakes to state the law in a concise form, citing full lists of cases supporting the propositions of law as stated.

Chapter II, entitled "Changes Effected by the Act in the Responsibility of Employers for the Acts of Persons Exercising Superintendence," has been very much enlarged and improved in this edition by the addition of the New York decisions interpreting this portion of the Act. The author's discussion of the common law on assumed risk as in effect in New York prior to the Act of 1902, and his section upon the change made in the New York law in this respect by section 3 of the Act, is especially clear. The English cases of Thomas v. Quartermaine, Yarmouth v. France and Smith v. Baker, are carefully analyzed and the judicial interpretation of section 3 of the New York Act and the law on assumed risks as evolved from the decisions, is set out in contrast with the English law on this subject.

The principles of employers' liability in general, as enacted into statute law and as distinguished from the common law, are briefly set forth in this little book, making it of value generally in jurisdictions where there is no employers' liability statute.

R. W. B.

INJUNCTIONS AGAINST NUISANCES AND THE RULE REQUIRING THE PLAINTIFF TO

ESTABLISH HIS RIGHT AT LAW.

That equity has jurisdiction over nuisance when the other remedies of the injured person, either at common law or by his own action, are insufficient, is universally acknowledged. From the very nature of the acts causing the injury we can hardly imagine a case of nuisance in which an action for damages is an adequate remedy. Therefore, in practically every case of nuisance it is proper to bring a bill in equity to abate it. In many cases, however, the plaintiff, bringing his bill in the only forum which can give him an efficient remedy, is met by the objection that he can have no permanent relief until he has proceeded against the defendant at law, and, by obtaining a judgment, proved that he has a right and that the defendant is infringing that right.

It is now usually admitted that the rule just referred to applies only to applications for a permanent injunction where the right of the plaintiff, or the fact that the defendant is infringing that right, is a matter of dispute between the parties. Should the plaintiff fail to allege in his bill

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that he has secured a judgment at law in his favor against the defendant, the omission does not now usually make the bill demurrable. By his demurrer the defendant admits the plaintiff's allegation. No question being in dispute, the Court cannot be further enlightened by a judgment at law in the plaintiff's favor. So also the rule that the plaintiff must first establish his right at law does not apply where the defendant in his answer, while he denies the plaintiff's right, shows that there is no real question in dispute between the plaintiff and himself in respect to the plaintiff's substantive rights or in regard to his, the defendant's, own violation of those rights.2 As stated, the rule has no application to a motion for a preliminary injunction. It is true that if the right of the plaintiff is disputed and doubtful, that fact is a very good reason why a preliminary injunction

2

'Soltau v. De Held, 2 Sim., N. S. 133, 1851, p. 151; Aldrich v. Howard, 7 R. I. 87, 1861, p. 94. But see contra, Coe v. Winnepisiogee Mfg. Co., 37 N. H. 254, 1858; Green v. Lake, 54 Miss. 540, 1877, p. 544. "But it was not so much against the general jurisdiction of the court, that the objection is raised, as to its exercise, when the defendant, as in this case, denies the complainant's right. It is the province of this Court, as the defendant's counsel insist, not to try this right, that belonging alone to a court of law, but to quiet the possession whenever that right has been ascertained and settled. If it be intended to say, that a defendant setting up this right by his answer, thereby at once ousts this court of jurisdiction, I cannot assent to it, for it would put an end, very much, to the exercise of an important branch of the powers of the court. This question of right to water is often a very debateable matter, and it would be quite easy for a defendant to satisfy his conscience in his own favor. If it be intended to go no further, than that it is a question which should be sent to law in case of doubt, and often should before injunction be first there established by trial and judgment, then I agree to the proposition. A long enjoyment by a party of a right, will entitle him to restrain a private nuisance, even though the defendant may deny the right, and the Court will exercise its discretion whether to order a trial at law or not, always inclining to put the case to a jury if there be reasonable doubt. In the case cited from 2 John Chan. the Chancellor refused to send the question of right to be tried at law, saying it was clear enough; and a case is cited from Prec. in Ch. 530, where a plaintiff who had long been in possession of a water-course, was quieted by injunction, though he had not established his right at law." Chancellor Pennington in Shields v. Arndt, 4 N. J. Eq. 234, 1842, p. 245. If the rule does not apply in cases of alleged trespasses on easements where there is no real dispute between the parties a fortiori it should not apply in cases of nuisance when there is no real dispute between the parties.