PERPETUITIES, THE LEGAL VALIDITY, AS Contracts, of OPTIONS TO PURCHASE PRESIDENT'S ANNUAL ADDRESS. Alton B. Parker. Discussing the present trend of legislation to correct the abuses of corporate power and entering a plea for upholding the Constitution. 19 Green Bag 581. PUBLICUM BONUM PRIVATE EST PREFERENDUM. Franklin A. Beecher. Contending that under modern conditions the police power should be given extended application. 65 Cent. L. J. 79, 100, 119. QUI PRIOR EST TEMPORE POTIOR EST JURE. Anon. Commenting on a recent English case on the relation between the cestui and an equitable mortgagee. 29 L. Stud. J. 200. See 21 HARV. L. REV. 53. SOCIOLOGICAL JURISPRUDENCE, THE NEED OF A. Roscoe Pound. Urging a scientific treatment of the present sociological tendencies. 19 Green Bag 607. SOVEREIGNTY IN A STATE, Notes on. Second Paper. Robert Lansing. Discussing the relation of state sovereignty to civil and state liberty, to constitutions, and to law. I Am. J. of Int. L. 297. SUPREME COURT, THE POWER of the, to ENFORCE ITS DECREES. George C. Lay. Historical survey of the cases in which a state has refused to obey the Supreme Court decrees, and discussion of the possibility of enforcing such decrees today. 41 Am. L. Rev. 515. TRADE UNIONS AND TRUSTS, Attitude of THE STATE TOWARDS. Henry R. Seager. Contending for uniformity in treatment. 22 Pol. Sci. Quar. 385. TREATY-MAKING POWER, THE. L. Atherley-Jones. Contending that in England today the power to make treaties of alliance should not be so exclusively in the Cabinet. 42 L. J. 511. TREATY-MAKING POWER, THE EXTENT AND LIMITATIONS OF THE, UNDER THE CONSTITUTION. Chandler P. Anderson. An exhaustive historical review of the authorities. I Am. J. of Int. L. 636. TRIAL, THE EVOLUTION OF THE RIght of. Horace H. Lurton. 52 Oh. L. Bul. 442. VERDICTS, THE POWER OF APPELLATE COURTS TO CUT DOWN EXCESSIVE. Robert L. McWilliams. Contending that the power should exist only when passion or prejudice is shown. 64 Cent. L. J. 267. II. BOOK REVIEWS. THE LAW OF TORTS. By Melville Madison Bigelow. Eighth Edition. "Eighth Edition" "Being a New Work Based on Former Editions." Professor Bigelow might well have followed this example. The so-called Eighth Edition of Bigelow on the Law of Torts is, in large part, a new work. The arrangement of topics is entirely changed; much matter has been added; and, most important of all, some questions of great consequence are viewed from a new standpoint. A large part of the first chapter on "Theory and Doctrine of Tort" has been rewritten. The remainder of the work is divided into two parts, the division being " based upon the special state of mind which caused the conduct in question.' Part I (Culpable Mind) comprises cases where the defendant's liability "turns upon his special mental attitude (apart from volition in what was done or omitted)." Part II (Inculpable Mind) comprises cases where the defendant's liability "does not necessarily turn upon his special mental attitude (apart from volition in what was done or omitted)." The most important new matter is in Chapter VI, "Procuring Refusal to Contract," - a chapter wholly rewritten and in Chapter VII," Procuring Breach of Contract." The germ of this new matter is to be found in Professor Bigelow's very able contributions to the collection of essays recently published under the title: "Centralization and the Law." See notice in 19 HARV. L. REV. 395. He now applies to concrete cases the theories there propounded. An excellent condensed description of his way of looking at things is given in the preface: 66 "A new point of view has made its appearance out of the agitation of social movements, within the half dozen years since the last edition of this book was in hand. The struggle between equality and inequality-between the public and privilege, and between privilege as capital and privilege as labor- had not at that time proceeded far enough or long enough to make the meaning, much less the outcome, clear. . . . "Since then the curtain has lifted somewhat and the social movement has found its place in the courts; though it is still uncertain whether equality or privilege will succeed in the end in making itself the will of the state. Even as it is, however, precedent is relaxing its hold under the pressure of the newer social energy, as some of the following pages will show.. "The new point of view, which is that law must be regarded as the resultant of conflicting social forces (less the conservatism of courts and legislatures), a point of view long hidden from sight in the faint stages of a social era of equality, is reflected on many pages of this book as it now appears.' All lawyers will not concur in some of Professor Bigelow's conclusions as to the subjects discussed in Chapters VI and VII. But every candid man who has investigated those subjects must acknowledge that the learned author has rendered an immense service by distinctly bringing out vital issues which have not hitherto received proper attention. He has sensibly diminished the danger of future confusion from irrelevant or obscure discussions. We can recall no treatise which states some of these issues so clearly and withal so briefly. These chapters abound in short, crisp statements. Whether one agrees or disagrees with the special views of the author, one must admit that those views are forcibly stated. Witness the following extracts: P. 238. "... any attempt to explain the newer authorities on hindering contract, on other grounds than of the struggle of social forces to make the law, is academic in nature and misleading in fact." P. 249. 66 at all." P. 250. a purpose to put an end to competition is not competition "... the defense of competition does not extend to cases in which the defendant's purpose is to eliminate competition. "... the doctrine of freedom of contract, both in economics and in law, has proved a delusion and has broken down. Legislatures have fully recognized the fact, and the courts are beginning to feel the pressure." 66 if competition is to be kept from running into monopoly." P. 262, n. 3. (As to certain decisions, now discredited.) "But they are interesting cases, standing as they are at the parting of the ways uncertain of the real effect of the movement going on and so clinging to the past." The earlier editions of this work held a high place among the treatises on this formerly neglected topic. Bigelow on Torts was always a good book, and now it is better than ever. It is said that the recent publication of so many volumes of cyclopedias and encyclopedias of law has affected the sale of standard textbooks. We would not question the worth of the encyclopedias. Yet, in the investigation of special topics, such books can seldom be a satisfactory substi tute for a standard treatise. The lawyer who has to answer an important question in torts will make a great mistake if he looks only at the encyclopedia and ignores the recent editions of Cooley and Bigelow. THE LAW OF EVIDENCE. By Sidney L. Phipson. Fourth Edition. J. S. London : Mr. Phipson is to be congratulated upon his book's having passed into its fourth lustrum of life coincidently with its fourth edition. It is the best book now current on the law of evidence in England. Since the last edition more than one thousand cases have been added, making in all some fifty-seven hundred cases and statutes cited, and these citations excel in their careful exhaustion of all the minor sources, such as the law journals, the Times, and the Justice of the Peace reports. At the head of each chapter is a list of references to the corresponding chapters in other treatises - a useful feature, which could have been improved by giving a table of abbreviations and editions used. The most valuable feature of Taylor's treatise, namely, the English statutory citations, now appears here also, with equal fulness. A casual testing finds no omission of the latest English decisions in courts of last resort. Indeed, the painstaking search for every vestige of a ruling is apparent on every page. As a lawyer's hand-book, it is difficult to suppose that this work can be improved upon. As a scientific instrument for the geodesy of the law of evidence, this treatise makes no claims. It need not therefore be judged from that point of view. Otherwise it might be well worth while to break a friendly lance, after the manner of Sir Nigel Loring, over the author's amalgamation of the diverse rules against reputation and opinion (ch. xxxv); the coördination of the rules of privilege for a third person's title-deeds, and the rules of discovery and of privilege for a party's documents (ch. xvi); and the treatment of that instantia crucis of evidence, the Res Gestae doctrine (ch. vi). It may be noted that Mr. Phipson, following Professor Thayer, cites John Horne Tooke's Case, in 1794, as the earliest occurrence of this phrase (p. 43); but it appears in fact more than a century earlier, in the Ship Money Case (3 How. St. Tr. 988), in 1637. The interesting point is that this earlier instance uses the plural res gestae, although Professor Thayer's favorite idea that the singular res gesta was the more correct was supposed to be confirmed by its being the earlier form. Nevertheless, Mr. Phipson's work has thoroughly freed itself from the unreasoning conventions and meaningless fictions of the older law, and has taken careful account of all the established results of modern theory. In this respect his book should be highly valued by the practitioner for its safe and enlightening guidance. For example, under Burden of Proof (ch. iv), Best Evidence (ch. iv), Res Inter Alios Acta (ch. xi), and Parol Evidence (ch. xliv), the great principles of analysis which Professor Thayer's writing and teaching succeeded in making popular and commonplace in this country are found plainly accepted as orthodox. If such changes in the literature of the most obstinate branch of the law can be effected so widely and so soon, through the singlehanded labors of one man of science, we need not despair to behold in due season the successful leavening of all parts of our law by any doctrines, however radical, which can convince the profession of their soundness. J. H. W. MARKETABLE TITLE TO REAL ESTATE By Chapman W. Maupin. Second New York: Baker, Voorhis & Company. 1907. pp. lxxvi, 910. Edition. 8vo. "Marketable Title" is still known as the title which a court of equity will force a grantor to take at the suit of the seller. The use of this term is wide, and is kept constantly in mind by the more expert conveyancers, for in passing upon objections to title those are properly abandoned which would not cause a court to call it unmarketable. The learned author has dealt with this particular subject directly only in Chapter 31, pp. 705-791. The balance of the volume, some 800 pages, cuts across various topics of the law. An attempt has been made to cover more or less completely such remotely related subjects as suits for specific performance of contracts for the sale of real estate, covenants of title, estoppel by deed, various subjects of the law of damages and the law of contracts, as well as abstracts of title and the formal requirements of conveyances. One may reasonably wonder why he did not treat also of delivery, the recording acts, and the specific performance of contracts relating to real estate which are not in writing. But the author's aim, even if it were successful, might be criticized. The practitioner's power in dealing with a given problem is not increased by finding it treated in relation to a particular subject-matter, but divorced entirely from its proper environment and associations. He is usually able to analyze his case and to locate the questions at issue in some scientifically analyzed topic of the law. He wants, then, the best treatise upon that fundamental subject. He wants to consider his particular problem in the light of the whole subject with which it is associated. He is necessarily repelled by a collection of topics such as the learned author has given us. In the treatment of the various topics the author has in the conventional lines made excellent statements of the law, and set out with care conflicting views, with reliable, though not exhaustive, citations. It seems to us, however, that the author does not estimate the great difficulty of writing an authoritative and intelligent treatise on detached parts of many different fundamental topics. In some instances his failure is plain, as where he attempts to deal with abstracts of title. With a topic having such a number of local variations he can do nothing effective in the space devoted to it. In other topics there is an utter failure to get hold of the best ideas upon the subject. Thus, observe in § 22 the loose way the author speaks of sealing as at common law, an indispensable formality in the execution of a deed of conveyance of a present freehold interest in possession. No one moderately acquainted with the history of conveyancing could ever have written such a sentence. To the transfer of a freehold in possession no seal was necessary at common law, for the conveyance would have been by feoffment. A writing and signature would only have been necessary by the Statute of Frauds of Charles II. If the instrument of conveyance operated by way of bargain and sale under the Statute of Uses of Henry VIII, then a seal was only necessary by the Statute of Enrolments of Henry VIII; but, as Tiedeman most clearly shows, it is extremely doubtful if the Statute of Enrolments has ever had any proper place in the law of this country, for its application was entirely local (Tiedeman, Real Property, 3 ed., § 549). Hence such a decision as Jackson v. Wood (12 Johns. (N. Y.) 73), which the learned author did not cite, holding that a seal is absolutely necessary, may be regarded as open to criticism. So, in respect to estoppel by deed, the learned author wholly misses the problem where A mortgages to B and then makes a second mortgage to C with full covenants of warranty but subject to the first mortgage, and upon foreclosure of the first mortgage A purchases the property. Is A or the second mortgagee entitled? He does indeed state the bare holding of Rooney v. Koenig (80 Minn. 483), but he fails entirely to note in this connection Ayers v. Philadelphia Brick Co. (159 Mass. 84, 3 Gray, Cas. on Property, 2 ed., 548) and the very interesting argument on principle that may be made the other way. Another difficulty with the present work — a difficulty too which is met with in almost all the text-books of today is this: the author seems to be writing upon the assumption that there is a sort of general American law which he is expounding. He seems to derive the propositions which he formulates by a process of induction in which the sources are a more or less second-hand familiarity with the general subject dealt with. When he comes to the citation of cases to illustrate his propositions, he does not seem to care where they come from so long as they support what is said. Sometimes there is a "conflict of authority." The learned author's course would have been all very well thirty years ago, when the law of no jurisdiction was anywhere near complete in itself, and when there were rules of the common law which all alike were likely to follow. But today in each of the larger and more important jurisdictions of the United States the adjudicated cases have made the law to a large extent complete in itself, and the sound and well-equipped lawyer must know the law in terms of the decisions of his particular jurisdiction, and know the particular problems which have developed there. To such practitioners the present work is a curiosity. It is not, like Wigmore on Evidence, a study of the comparative law of forty-five jurisdictions, pointing out the fundamental problems of the subject and indicating by exhaustive citations how far the decisions of each state conform to or depart from a usual or standard rule. It is, on the contrary, a composite as hazy, inexact, and curious in its outlines as the composite photograph of the hundred beauties of all nations. A. M. K. A DIGEST of Corporation CASES. By Maurice B. Dean. New York: The Banks Law Publishing Company. 1906. pp. xxiv, 1087. 8vo. In a The steady increase in the production of law books is apt to suggest to the inquiring mind whether or not publishers are not perhaps more anxious to keep their presses busy than to present to the public really valuable legal literature. This makes the reviewer sometimes sceptical, especially when an author departs entirely from the usual paths trodden by legal writers. Dean's "Digest of Corporation Cases" is a departure. It is based upon a frank repudiation of two well recognized methods of teaching legal principles. It is neither a textbook, because the author thinks that abstract principles of law are too easily forgotten, nor is it a case-book, because the author thinks that by its use the student must encounter too much useless material before reaching anything which he may acquire and carry away with him. It is a compromise between two methods. The author in his own words states the principle decided by a case, aud appends in the language of the court what he deems to be its reasoning in deciding it. Two inquiries suggest themselves at once: (1) Has the author accomplished well the task he set himself to do? (2) Was the task worth doing at all? His selection of cases is good, but not large enough. number of instances where the law is in conflict, the author gives but one view. This is always misleading to the student. There should be enough cases to give the student not only what has been decided in a particular jurisdiction, but an opportunity to form a judgment for himself as to which of several views is correct. In the second place, the author has fallen into one of the errors about which he complains. In his statement of a decision, instead of confining himself to that part of the judgment illustrating the particular question of corporation law which he himself desires to illustrate, he inserts matters entirely extraneous. To be consistent he should strip his statement of facts, pleadings, and judgments of everything not essential to the complete understanding of the principle to be illustrated. But after all is said the task was not worth the labor involved. The author has not combined the best of two systems. He has simply created a book which might properly be labelled "The Study of Corporation Law Made Easy." Without entering into a discussion of the merits of the two systems of teaching law, it is quite clear, to one who has used the casebook method, that its weakness does not lie in the fact that the student must read "a large amount of useless material." A student properly trained to its use very quickly learns to discriminate between the essential and the nonessential. Books for students should not be written upon the principle that the subject treated must be brought by some mechanical method within the reach of the stupid and the slothful. C. G. L. LAW ITS ORIGIN, GROWTH, AND FUNCTION. By James Coolidge Carter. New York and London: G. P. Putnam's Sons. 1907. pp. vii, 355. 8vo. A TREATISE ON THE LAW OF NATURALIZATION OF THE UNITED STATES. By Frederick Van Dyne. Washington: Frederick Van Dyne. 1907. pp. xviii, 528. 8vo. HANDBOOK OF THE LAW OF SURETYSHIP AND GUARANTY. By Frank Hall Childs. Hornbook Series. St. Paul: West Publishing Company. 1907. pp. x, 572. 8vo. HANDBOOK OF THE LAW OF EVIDENCE. By John Jay McKelvey. Second Edition, Revised. Hornbook Series. St. Paul: West Publishing Company. 1907. pp. xvii, 540. 8vo. LEADING CASES ON THE LAW OF EVIDENCE. 1907. With Notes by Ernest Cockle. pp. xiii, 224. 8vo. |