VIII Archaisms in Modern Law; IX Judicial Records; X English Law Reporting; XI Lay Fallacies in the Law; XII Doctrine of Divorce; XIII Arabiniana.

One of these Essays (No. XI: Lay Fallacies in the Law) was originally published in this REVIEW and was one of the festival essays written in honor of Dean Wigmore. Most of the others were not available before-at any rate not easily available-to lawyers in this country. Sir Frederick is first of all an historian and above that a medievalist. We find little in this collection-nothing in fact that has left any impression-that attempts to make the law or anything else better than it is or other than it is. Nor is this put down in disparagement. There are plenty of men of good intentions often misconceived in every age to see to it that the world does not fall apart from dry-rot. It is pleasanter, too, to build in the open air than to burrow in the mines. Sir Frederick has chosen the darker path and it is not unlikely that he encounters there the economic, political, and juristic conditions that are rediscovered in every epoch.

Nothing written by a man of such sound and broad learning as Sir Frederick can safely be put aside as negligible, though we must confess that except for the duress of the author's fame we should have put down a few of the essays in this collection as neither especially attractive nor path-breaking. That, however, is largely a matter of first impression, and a second reading reduces this dogmatic appraisal to something near a half-convinced doubt. If there seems to be here and there a lack of attraction, the fault doubtless is not to be charged to the author. Sir Frederick does not write in primer style for the multitude. His polished sentences are too Victorian to fire the imagination. He does not write down to the bonus vir. If the reader does not know his Horace and his Cicero he had best look at something else in the publisher's list. If he does not already know a good deal about other than local law, and especially Roman law and early English legal history, his understanding sometimes will desert the text, and he will find no relieving footnote to light his way. Yet these essays are the sort that a learned profession should be able to read with instruction, for they are full of weighty generalizations based on a rich background of historical fact, not here often disclosed or concretely illustrated, of which the author is an acknowledged master.

The chapters on Judicial Records and on English Law Reporting will be found especially interesting on this side of the Atlantic. The chapter on Gifts of Chattels without Delivery is a valuable note on the well-known case of Cochrane v. Moore and is worth a place in the casebooks on chattels. The persistence of the discussion of the fiction theory of corporateness is either an analytical mystery or an absurdity. There is no more or less of fiction in the persona of a corporation than in the persona of a human being or a ship. To the chapter on Equity there is appended a characteristic Pollockian note on Shylock v. Antonio. The Arabiniana from the standpoint of English judicial humor is no doubt a climacteric

chapter. In America where wigs and gowns are hardly known, though the practice is growing, on the perfectly logical theory that the human mind is yet so primitive that dignity may be added to an office by a few yards of cloth, Serjeant Arabin would nearly anywhere he considered a very ordinary person. As a judicial humorist-a doubtful combination always he would have attracted little attention in America. We need not go beyond the pale of Cook County to be able to name more interesting competitors; for example, the late Judge Joseph E. Gary of the Superior Court, the late Judge Goggin of the same court, and lastly, and least, but long in office, "Biff" Hall, who flourished at the Harrison Street police court about twenty years ago.

Unlike the collection of Essays of Mr. Justice Holmes, this volume contains an analytical table of contents and a good index. Sir Frederick for nearly a half-century has been the guardian of a remorseless standard of accuracy in all law writing. Many a careless and slovenly writer has been made aware of his sins in the book reviews of the Law Quarterly Review. It has been, at least in times past, a characteristic feature to point out all the proofreading slips of books under review. The disciplinary effect of this punctilious censorship can hardly be estimated. No doubt it has been important. It will ease the minds of many persons who lack aptitude for discovering errors in proofs (errors, too, always charged but not always chargeable to the print-shop) to find in one or two places that a book title abbreviation is effected by a comma instead of a period. We observe, however, that the obstinacy of an American proof-reader in spelling "tiro" with a y has not been allowed to go uncorrected.

A. K.

COMMON LAW MARRIAGE AND ITS DEVELOPMENT IN THE UNITED STATES. By Otto E. Koegel, D. C. L. Washington: John Byrne and Co., 1922. Pp. 176.

This book is probably the only one that has ever been written in this country exclusively on common law marriages. It owes its existence to the exhaustive study and research the author found it necessary to make for the United States Bureau of War Risk Insurance in his capacity of associate counsel for that bureau. He does not pretend that the work is a complete treatise; it is rather an historical summary, thorough enough, ending in a tabular digest of the existing law in every state on the various forms of common law marriage. The book is made up largely of passages quoted from cases and text books, and attempts to lay down or evolve no new theories or ideas.

As the author shows, the subject of common law marriage has been but casually treated by writers; the judicial opinions of America seem devoid of much learning upon it; and in England alone this branch of the law appears to have been thoroughly understood and mastered. Yet, even there, in the famous case of Regina v.

Millis in 1843, the majority of the judges erred in their decision on what had been the law on such marriages in England prior to 1753, when the English Marriage Act abolished them. The author proves the correctness of Lord Campbell's dissenting opinion, in which he held that a priest need not perform a marriage in order that it be valid, and that at common law valid marriages might be entered into informally by the parties per verba de præsenti and per verba de futuro with subsequent copulation.

The history of informal and secret marriages is treated from the days of the Roman empire down to the present, showing the effect of the Council of Trent, the establishment of the validity of informal marriages per verba de præsenti and per verba de futuro cum copula, the destruction of these doctrines in England proper by the English Marriage Act, the dictum of Chancellor Kent in Fenton v. Reed, which is their real foundation in this country, and their extensive modification and partial extinction by the statutes of the various states.

The excellent tabular analysis of the present law in every state, already referred to, is at the very end of the book, and is probably, materially, the most valuable part of the work. Unfortunately for the importance of the book, the subject of common law marriages is fast dying out. The subject is not, however, entirely obsolescent in Illinois since cases are still arising on situations before the prohibitory statute.

K. G. C.

CONFLICT OF LAWS. By John P. Tiernan. Chicago: Callaghan & Company, 1921. Pp. vi + 122.

Professor Tiernan has embodied in this small volume, as he states in his preface "the fundamentals of the subject in simple form." The author also intimates in his preface that he believes the only adequate method for the study of law is a combination of lectures, cases, and text, and that this text is intended for use in combination with cases and lectures.

While there is no doubt great virtue in brevity, yet where it tends to lead to a misconception on the part of the reader of the true state of the law, the value of brevity may be seriously questioned. The author takes such sight cognizance of the disputed points of the law that the reader who has not made a thorough study of the conflict of laws would be led to believe the subject a simple one, indeed. Professor Tiernan may be justly criticized with regard to his survey of the conflict of laws relating to contracts (page 21) where it says, "The rights and obligations of the parties to a contract are governed by the law of the state where it was made, unless it was expressly to be performed in another state." The author then proceeds to state that where both the place of contracting and the place of performance are in one state, there is a presumption that the parties intended to be governed by that law, but if the place of performance is not the same as the place of con

tracting, there is a presumption in favor of the lex loci solutionis. He fails to mention that there are jurisdictions which favor the lex loci contractus regardless of the place of performance, and others which follow the rule of intention, with a presumption either in favor of the lex loci contractus or solutionis. Nor does the author point out what view would be taken where performance is necessarily in more than one state.

It is probable that in search for a short text on the conflict of laws many students will be led to read this volume, and it will be most unfortunate if their reading on the subject is confined to it, for the true conception of the state of the law in this country can hardly be gained from it.

C. M. P.

ARTICLES IN PERIODICALS

HISTORY OF THE OREGON CODE. Hon. Lawrence T. Harris. Oregon L. Rev. I 184.

MATRIMONIAL PROPERTY RIGHTS UNDER MODERN SPANISH AND AMERICAN LAW. W. W. Smithers. U. of Pa. L. Rev. LXX 259.

LABOR LAW ADMINISTRATION IN PENNSYLVANIA. Robert H. Wittach. U. of Pa. L. Rev. LXX 277.

NEXT STEP IN PUBLIC UTILITY REGULATIONS.

W. Va. L. Q. XXVIII 253.

George Jarvis Thompson.

NON-JOINDER AND MISJOINDER OF PARTIES. Henry Craig Jones and Leo Carlin. W. Va. L. Q. XXVIII 266.

BUSINESS TRUSTS AND THEIR RELATION TO WEST VIRGINIA LAW. James B. Riley. W. Va. L. Q. XXVIII 287.

EFFECT OF THE TAX DEED LIMITATION STATUTE UPON THE RIGHTS OF THE GRANTEE OF A VALID TAX DEED. John D. Wickhem. Wis. L. Rev. I 449.

UNIFORM SALES LAW IN WISCONSIN (Concl.). Howard L. Smith. Wis. L. Rev. I 474.

STATE INCOME TAXES AND THE COMMERCE CLAUSE I. Thomas Reed Powell. Yale L. Jour. XXXI 799.

THE ROMAN ELEMENT IN BRACTON'S DE ADQUIRENDO RERUM DOMINIO. George E. Woodbine. Yale L. Jour. XXXI 827.

NATURALIZATION AND EXPATRIATION. Richard W. Flournoy, Jr. Yale L. Jour. XXXI 848.

ILLINOIS APPELLATE COURT CASES

MONTHLY DIGEST

CUMULATIVE INDEX TO DIGEST

[The letters after the numbers refer to the District: a, First District;

b, Second District; c, Third District; d, Fourth District.]