as

a purely arbitrary one, affording special protection to a favoured class without assigning any reason for so doing. Expectant heirs were singled out for special protection because they were regarded a class of persons in some degree by their very position infected with some of the weaknesses of infancy' (Aylesford v. Morris, 42 L. J., Ch. 546), and were of necessity bound to secrecy, and precluded from seeking the advice and assistance of their friends and relations; and, as previously stated, equity also had regard to other sources of weakness, such as ignorance, poverty, or distress, though it was unnecessary that there should be evidence of anything approaching to undue influence. It might be 'the pressure of circumstances and not the pressure of individuals' (Rae v. Joyce, supra). And in considering whether the transaction should stand, equity would also inquire whether there had been any real bargaining, and whether the plaintiff, in fact, had independent and competent advice. Now these are precisely the considerations which would influence the Court in the application of the Money-Lenders Act, and indeed in Carringtons Lim. v. Smith, Channell J. said

Whenever the borrower is in such a state that his agreement cannot be taken as a test of what is reasonable-when he is ignorant, when advantage is taken of him, or when his necessities are such that he practically has no free will-there is no difficulty in applying the Act, and judges are not likely to hesitate to apply it.'

It should also be stated that equity granted relief where-apart from any consideration of the conduct or position of the parties— the terms of the bargain were of an intrinsically unfair character, and there seems to be some authority for saying that even at Common Law and in cases where neither of the parties is an expectant heir, a contract, the terms of which are so misleading as to amount to a trick, is not enforceable. Thus in James v. Morgan (1 Lev. 111), where a horse was sold for a barleycorn a nail and double for every nail, amounting to five hundred quarters of barley, Hide J. directed the jury to give the value of the horse, viz. eight pounds, in damages.

This case is referred to in Thornborough v. Whitacre (2 Lord Raymond, 11. 64), where, however, the Court expressed the opinion that if a man undertakes to perform the impossible he is bound by his contract; and it is also mentioned by Lord Hardwicke in Chesterfield v. Janssen—the leading case on the doctrine of expectant heirs. Since the Money-Lenders Act came into operation this principle has been applied by the Courts in granting relief against obscure

and misleading default clauses in money-lenders' agreements (Levene v. Greenwood, 20 T. L. R. 389; Carringtons Lim. v. Smith [1896] 1 K. B. at p. 91).

It remains to consider how far—if at all—the doctrine of equity has been extended by analogy to persons who are either not expectant heirs or not known to be such by the persons with whom they contract. In Miller v. Cook (L. R. 10 Eq. 641), Stuart V.-C. referred to two cases at Common Law, Jestons v. Brookes (Cowper, 793) and Plumbe v. Carter (reported in the note to Floyer v. Edwards, Cowper, 116), which are perhaps rather of historical than practical interest. Both were actions for money had and received, and Lord Mansfield said that such an action is analogous to a bill in equity. In Plumbe v. Carter he held that though the transaction in question was not within the usury laws, the plaintiff was entitled to recover on the ground that the defendant had taken a hard and unconscionable advantage.' In Jestons v. Brookes the transaction was also found to be usurious. In neither case was the plaintiff an expectant heir, nor was there any suggestion that the parties were not on equal terms. As regards more recent authority, we find that in Webster v. Cook (L. R. 2 Ch. 542) Lord Chelmsford expressly refused to extend the doctrine. The correctness of this decision on the facts was doubted in Tyler v. Yates (L. R. 11 Eq. 265) by Stuart V.-C.; but Lord Chelmsford's view of the law is confirmed by a dictum of Jessel M. R. in Beynon v. Cook (L. R. 10 Ch. 389).

In Nevill v. Snelling (15 Ch. D. 679), which is the case usually cited as an authority for the extension of the doctrine, the plaintiff was the third son of the Marquis of Abergavenny, and the defendant a money-lender-knew that the plaintiff was the son of a wealthy peer, and admitted that he contemplated the probability of being paid by the father to prevent exposure and bankruptcy. There would appear, therefore, to have been some evidence that the plaintiff was an expectant heir within the definition of Jessel M. R. in Beynon v. Cook. Denman J., however, though he ' had no doubt that the defendant also relied to some extent upon a general expectation that the plaintiff would probably at some time or other become entitled to an interest in the family estate,' seems to have held that the plaintiff could not be regarded as an expectant heir, but after reviewing the previous decisions, and remarking that in most of them stress had been laid rather on an unconscientious trading on the weakness and distress of the plaintiff than on the fact that of his being an expectant heir, came to the

1 Compare Blackstone's language deriving the right of action on the common counts from 'natural reason and the just construction of law,' Comm. iii. 162.

conclusion that in no case had it been decided that the interference of the Court was limited to dealings with expectant heirs, and granted relief accordingly 1. This conclusion was adopted to some extent in James v. Kerr (40 Ch. D. 449) and Rees v. De Bernardy ([1896] 2 Ch. 437); but both these cases also rested on the ground of champerty. On the whole, therefore, it was certainly at the least doubtful at the time of the passing of the Act of 1900 whether relief would have been granted to persons who had only property in possession, or who had no property at all.

Such being the existing state of the law prior to 1900, the framers of the Money-Lenders Act had to consider how far that law afforded adequate protection against the admitted evils resulting from the conduct of professional money-lenders, and they found that equity provided an adequate remedy in the case of a particular class of borrowers, viz. expectant heirs, but that owing to the uncertainty as to the real extent and effect of the decision in Nevill v. Snelling that remedy was not in practice open to persons not falling within the favoured class.

It is submitted, therefore, that the intention of the Legislature was in the first place to put all borrowers dealing with professional money-lenders in substantially the same position as expectant heirs, and secondly, to preserve any existing remedies unmodified (cf. sect. 1, subsec. 6). The latter consideration, perhaps, explains the insertion of the apparently superfluous words or otherwise such that a Court of Equity would give relief,' which seem intended to emphasize the fact that the Act is not to be regarded as in any way curtailing the equitable doctrine. There will, at any rate, remain this distinction between expectant heirs and other persons, that as regards the former the onus of proof will rest upon the lender, whereas in other cases it will be upon the borrower. But, on the other hand, the Act would seem to have in one respect modified the practice of equity in favour of the lender by allowing the Court to award him a higher rate of interest than five per cent. (cf. Rae v. Joyce, 29 L. R. Ir. 500).

L. J. STURGE.

[I should prefer to state the effect of the decision as being that the jurisdiction to protect 'expectant heirs' is not confined to loans made with reference to specified expectations. Some of the dicta, certainly, seem rather wide. -ED.]

REVIEWS AND NOTICES.

[Short notices do not necessarily exclude fuller review hereafter.]

International Law. Vol. II: War and Neutrality. By L. OPPENHEIM, LL.D. London: Longmans, Green & Co. 1906. 8vo. xxxiv and 595 pp. (188. net.)

IN this sequel to the volume on Peace which we lately reviewed Dr. Oppenheim has again given us a learned treatise, in which he takes account of the most recent facts and opinions, with a bibliography preceding each chapter and section that will enable the student to pursue a wide range of research. His opinions, as before, are cautious; and we may say on the whole that he rather aims at preparing his reader to follow the discussions that may be expected in the promised congress than at joining in the fray. For that purpose the book will be very useful.

The remarks which occur to us as necessary to make turn chiefly on questions of language. For instance, 'conquest,' which has the established meaning of the annexation of territory by force of arms without cession, he employs in the sense of occupation, and describes the annexation as subjugation, a term to which English writers have given no technical sense: p. 277. The reader will not be led into any mistake, for, here as always, our author explains fully and clearly the senses in which he intends to use, and in fact uses, his terms; but it seems to us a pity to innovate in language unnecessarily.

Another point which may perhaps be classed as belonging to language rather than to substance is Dr. Oppenheim's definition of neutrality as an attitude of impartiality. He freely admits that real impartiality is impossible without abstaining from giving assistance to either belligerent, and this being so, and the duty of abstention being no less capable of being presented as a principle than the duty of impartiality, surely it is better to make it the foundation of neutral duties. This indeed is what Vattel did, thereby making an advance on the teaching of Grotius and Bynkershoek, and it has commonly been done ever since, with continually growing consequences which Vattel failed fully to draw out, though they were implied in his point of view. Dr. Oppenheim accepts all the consequences, and it is therefore the more difficult to understand why he has reverted in form to the older doctrine. J. W.

Year Books of Edward II. Vol. III. 3 Edward II, A. D. 1309-1310. Edited for the Selden Society by F. W. MAITLAND. London: Bernard Quaritch. 1905. 4to. xev, 1-202 (double), 203-244 pp. Year Books of the Reign of King Edward the Third. Years XVIII and XIX [Rolls Series]. Edited and translated by LUKE Owen Pike. 1905. La. 8vo. Ivi and 616 pp.

IN the introduction to the new Selden Society volume of Year Books, an introduction more interesting if possible than the first (see L. Q. R. xx. 94), Mr. Maitland pursues his critical examination of the fourteenth-century Year Books. He shows conclusively that the MSS. are in no sense authoritative reports, but are in the nature of commonplace books kept by

young practitioners or students, and probably made up from rough notes taken at the time in Court, not always the writer's own notes. The practice of borrowing other men's lecture notes is by no means unknown in the Universities at this day. All that interested the studious medieval apprentice was the discussion of pleading points. This was not equivalent to formal argument and decision on written pleadings, but was preliminary skirmishing in Court which, as a rule, left no trace on the record. Counsel for a defendant would, as Mr. Maitland puts it, talk of demurring; but he did not at this stage actually demur; whether it was worth his while to risk a demurrer was just what he wanted to find out. The off-hand opinions of the judges in these debates, whether of positive authority or not, which seems doubtful, were obviously valuable for the guidance of young pleaders.

Matters not necessary to the points of pleading-such collateral details as names of parties and places, and what finally became of the case-did not seem interesting at the time, and no trouble was taken about them. Often, indeed, names appear to have been purposely altered, either to make them more distinguishable when there happened to be two Johns or Maries among the real parties, or out of mere caprice.

All this, as Mr. Maitland carefully notes, does not amount to proof positive that the Year Books of the fifteenth or sixteenth century did not in some way acquire a more authoritative character. But, if any one now maintains that this happened, we conceive that the burden of proof is on him to produce better evidence than the statement made on hearsay by Plowden and repeated in a crescendo of assurance by Coke, Bacon, and Blackstone'. We know that a Year Book report of the time of Henry VI was found by Henry VIII's judges to be contrary to the record (Bro. Abr. Executor, pl. 22). One thing about our fourteenth-century MSS. which would alone be enough to stamp them as mere private enterprise is that we constantly get variant reports of the same case, at times as many as four. Mr. Maitland sets out a specimen at large in the course of his introduction. It may be that examination of later MSS. will show these variations persisting, or, on the other hand, that it may disclose the prevalence, after an assignable date, of one, and only one, version of each case. In the latter event we should have some evidence that there was some kind of selection and editing. On the face of them the later Year Book reports do not appear to differ in any material quality from the earlier, save that they are on the whole fuller, and that the language degenerates pretty fast after it becomes an artificial rendering in lifeless Anglo-French of what was said in Court in living English.

It is interesting to observe that the only Court which furnished, as a rule, reportable matter was the Court of Common Pleas. The number of counsel practising there appears to have been less than twenty-five. One question remains which (we speak it to our shame) it would be needless to ask in any country but this. How long are the Selden Society and Mr. Maitland to cope single-handed with what ought to be a national undertaking?

Meanwhile it is something that Mr. Pike's excellent work on the Year Books of Edward III is continued. In his introduction to 18-19 Ed. III Mr. Pike calls attention to the career of Grene, afterwards a very learned judge, at the Bar, where his persistency seems to have annoyed the Court.

1 On looking again at this statement, it occurs to me that it has no necessary or even probable reference to the Year Books, and may be a mere pious fiction of a remote golden age.