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A Selection of Cases on the Conflict of Laws. By Joseph Henry Beale, Jr., Cambridge: The Harvard Law Review Publishing Association. 1900–1902.
3 vols., pp. vii, 496 ; xv, 548; xviii, 548. Great credit is due to the editor and also to the publishers of these volumes, which contain a collection of cases on a subject to which little attention has been paid in our law schools. The matter has been well prepared, and the presswork is altogether commendable. The editor observes that the arrangement of topics may be open to logical objections, but that there seem to be sufficient practical reasons for the order adopted. The first part of the collection relates to jurisdiction, and deals in the first instance with the subject of law, including the extent of legislative power, the origin and change of law, concurrent legislative jurisdiction, the nature of foreign law, and comity. The next topic is that of jurisdiction over persons and things, as founded on domicil or situation. While this arrangement may reverse the usual order of topics, it may be supported by arguments of convenience and does not seem to be open to serious adverse comment.
To those familiar with the subject of the present volumes, it is superfluous to remark upon the diversity of opinion that prevails as to the origin of the doctrines which are discussed under the title of the conflict of laws. This diversity of opinion is perhaps somewhat reflected in the statement in the preface that those doctrines "all form part of the common law of England, and have been adopted as such in the States of the American Union,” but that “they are law with us, not because they arose in international comity and usage, or in municipal practice, but because they are acted upon by our courts." We are not sure that we correctly apprehend the result of the statements which we have thus contrasted. If the doctrines in question constitute a part of the law of our States, as derived from the common law of England, they would seem to constitute a part of what may be called American common law; and, if so, it would seem to follow that they are acted upon in the courts because they constitute a part of our law, instead of being a part of our law because they are acted upon in the courts. We seem thus to be reasoning in a circle, but it may at least be said that it is a very old one.
The cases found in the present collection consist chiefly of decisions of English and American courts; but they also comprise decisions of British colonial courts and a number of what are called “foreign cases," decided by the courts of other countries. With regard to decisions reported in what is termed “the French form," it is stated that the editor, besides translating the decision, has changed the original so as to “throw the judgment into the form of an opinion ;” and that this has been done for the reason that “the report as published does not ordinarily contain the opinion of the court, but
merely the judgment, which, however, includes a full but formal recital of the facts and reasons on which the judgment is based.” The statement thus quoted might, we think, give rise to an unintended, but erroneous impression. In the French reporting there is, we believe, practically no such thing as an “opinion of the court, as distinguished from the “judgment.” We are also quite prepared to add that we consider the absence of such a distinction to be most fortunate. A judgment in the French form in reality furnishes the scientific ideal of what an opinion of a court should be, since it presents in orderly procession the facts, the reasons and the decree all in one consolidated docuinent.
Many of the cases in the present collection are accompanied with notes. The editor states in this relation that the cases thus cited by him by no means exhaust the authorities. This is necessarily so; but the citations, as we find them, are judiciously made and accomplish the editor's design of showing the actual state of authority on the particular questions involved.
Any review of the editor's work would be incomplete that omitted to notice his “Summary of the Conflict of Laws” at the end of the third volume. This summary, which occupies forty-five pages, presenis a convenient and useful survey of the rules laid down in the numerous cases that precede it.
A TREATISE ON The Law of AGENCY. By George L. Reinhard. Indianapolis: The Bowen-Merrill Co., 1902.
This is the latest treatise on the subject of agency, a topic which has heretofore been too much neglected by the writers of text-books. It is a very readable book, and contains a lucid and succinct statement of the substance of the numerous authorities cited in it. The author avows his purpose to be accurate, rather than original. In respect to avoiding originality he has been completely successful, and the result is that the book is better adapted for the uses of the practitioner than the student. It follows substantially the lines and classifications of Mechem's work, published in 1889, but it is more compact and readable, and a very much more handy volume, being about three-fourths of the size of the earlier work; and, of course, it has an advantage in being thirteen years younger, although we cannot agree with the suggestion of the author that the Law of Agency is undergoing more rapid development and modification than any other branch of the substantive law. True to his purpose of avoiding originality, the author has not undertaken to throw any new light on the subjects of Undisclosed Principal or Ratification, the topics which involve, more than others, what is peculiar to the Law of Agency. The case of Watteau v. Fenwick, 1 involving an entirely new doctrine in the law of Undisclosed Principal, is cited in connection with Higgins v. Senior, with which it has nothing to do. The recent and important case of Keighley v. Durant”, involving a most interesting question in the law of ratification, is not referred to at all, nor is there any discussion of the question itself.
The author states that his desire to be accurate, rather than original, results from “his experience at the bar, on the bench and in the
(1893] 1 Q. B. 346. ?  A. C., 240.
class-room, that the profession wants books to aid in the search for the law as it is.” Assuming that by the phrase "the law as it is the author means the decisions of the courts and judicial opinions, it is undoubtedly true that a busy lawyer needs all the aid he can get to find the actual decisions upon the precise point in issue, for in the lower courts a case "on all fours,” and, perhaps, an analogous case, will decide the issue in his favor, and even in the appellate tribunals, where there is still some chance for discussion of the question on principle, such cases may have a very important, if not a controlling, influence. But we must not lose sight of the fact that judicial decisions and opinions are not “the law as it is" in the true sense of the term. They are in fact what they are in name, that is, opinions merely as to what the law is, and what the student needs and should strive to discover are the underlying principles and fundamental reasons which do not lie on the surface and can be extracted from the cases only by close study and analysis. Hence a text-book, which aims to be not merely accurate, but also original in the sense of presenting in a new and clearer light these principles and reasons, is a better and more practical one for the student than the text-book which is simply a fairly accurate summary of the substance of judicial decisions and judicial opinions. So far as the Law of Agency is concerned, there is more need at the present time of the former than of the latter kind of textbook.
A TREATISE ON THE LAW OF BANKS AND BANKING. By John T. Morse. Jr. Fourth Edition. By Frank Parsons. Boston: Little, Brown & Co., 1903. Two volumes. pp. cv., 1490.
Morse on Banking has long enjoyed an excellent and well-deserved reputation, not only with bankers, but with the legal profession as well. It gained this reputation while confined to the modest dimensions of a single volume. Even if its authority has not increased as rapidly as its bulk has expanded, that expansion has made the two volumes of the present edition far more serviceable to the practicing lawyer than the original work. Many subjects are discussed more fully, and the number of cited cases has been quadrupled.
The scope of this treatise is described by Mr. Parsons with much care in his preliminary chapter. It is not confined to such part of the law as owes its existence to the business of banking. On the other hand it does not attempt to deal with every legal question which affects bankers. Its aim is to group in a single treatise “the law peculiar to banks, and such further matter as is of frequent application in or has a very important bearing upon their business.” Accordingly, the principal topics are: The Organization and Business of Banks: Their Officers and Agents; Deposits; Checks; Bills and Stock; National Banking Laws.
Some of these topics are discussed with very great fulness—with such fulness, in fact, as to give to parts of the work an encyclopædic character, which the editor in his preface declared his intention to avoid. For example, in the chapters on Officers and Agents we find a discussion of the tort liability of a master to a servant, for the misconduct of a fellow-servant, and a reference to the archaic distinction between misfeasance and nonfeasance, as a ground of the
personal liability of an agent. 1 Clearly such doctrines are not "of frequent application in,” nor have they “a very important bearing upon” the business of banks. Digressions of this sort are not frequent, however, and, as a rule, the discussion of every topic is well proportioned and very satisfactory. At times, the editor betrays, if not intolerance, at least an inclination to rather savage criticism of judicial decisions which he believes to be erroneous. Pussibly a more judicial attitude on many controverted points would inspire the reader with greater confidence in the editor's conclusions. It must be admitted, however, that his method of treatment and his glowing eloquence arrest attention and arouse interest. Occasionally, his love of metaphor seems to be unduly indulged, as at the beginning of $ 276, where we find this statement: “If we try to stand off and take a comprehensive view of this much trodden ground, and endeavor to distinguish the footsteps of justice from those of other things that have the power of leaving their impressions on the sands of time.” Later in this section we read: “Now if the evil and the good were found chemically pure, if there were no gold with the dirt, if a man of imprudence had never any beneficial quality mingled with his evil dispositions, the problem would be simple, the blood of society could be purified quickly and easily by exterminating all individuals exhibiting detrimental qualities.” Again, in $ 491: “In many States have learning and eloquence been drawn up in battle array to decide the issue, and with sadly varying results.”
A very valuable feature of the work is the full and careful analysis at the opening of each chapter. It is more than a table of the chapter's contents. It is a clear and helpful abstract of the discussion which follows. It adds greatly to the usefulness of the work as a book of reference. Of the general appearance of these volumes we cannot speak too highly. They are most admirable specimens of the law-book maker's art.
The Law of SURETYSHIP. By Arthur Adelbert Stearns. Cincinnati: The W. H. Anderson Co. 1903. pp. xvii., 747.
The need of a good text-book on this subject for the use of students has been sorely felt. When this volume was placed in our hands, we indulged the hope that now the need was to be satisfied. Unfortunately, it is a case of hope deferred. And yet we hasten to say, the book is far from bad. In some respects, it is excellent. The practitioner will find it very helpful, for it deals most fully with those t pics which supply the great bulk of modern litigation connected with suretyship. How very modern one branch of the subject is, may quickly be discovered by glancing at the notes to chapter nine, devoted to surety companies. Nearly all the cited cases belong to the last five years. Scarcely one goes back a decade.
Even the practitioner, however, needs to be on his guard against the statements of the text and the authorities cited in their support. For example, the author declares ($ 106): “The law requires good faith on the part of the beneficiary of the contract, and it is the duty of the creditor to disclose information which he has concerning the principal, which, if known to the promisor, would prevent him
from See 3 COLUMBIA LAW REVIEW, 116.
entering into the contract.
It is not necessary to show that the concealment or failure to disclose facts material for the surety to know is wilful, or with intent to deceive. It is sufficient if the non-disclosure is constructively fraudulent. And the preponderance of authority establishes such fraud from the mere failure to disclose material facts." The authorities cited for this statement, and especially for the clause which we have italicized, do not support it. In nearly every case, there was abundant evidence of an actual fraud; in some cases there was express misrepresentation. Several cases involved the liability of sureties for agents, whose employers knew they were defaulters when bonds for faithful conduct were called for; and yet these employers deliberately withheld this knowledge from the sureties. In such cases, there is evidence of intentional deceit by a false representation that the employee is honest and worthy of confidence. In other words, there is evidence of actual fraud (See Lord Blackburn's opinion in Lee v. Jones'). The harm possible from the inaccuracy of the author's statement is minimized by his frank citation of authorities which, he admits, are opposed to it.
In the main, however, the author's views appear to be sound, and his statements of doctrine well supported by leading cases; some topics are presented in an admirable manner. We have in mind especially that of “notice to guarantor of acceptance of the guaranty.
The author's analysis of the federal cases on this subject shows a careful study of the decisions, and strong grasp of the principles upon which such decisions should be based.
While the work is not an ideal one for the law student, it is better adapted to his needs than any other publication with which we are familiar.
INSURANCE AND CRIME. By Alexander Colin Campbell New York and London: G. P. Putnam's Sons. 1902. pp. xiv, 404.
In calling attention to the defects and abuses which co-exist with many sound and beneficent principles in our system of insurance, Mr. Campbell treats a subject which has hitherto been comparatively neglected. Economic writers have long employed their energies in the discussion of many unjust burdens which honest and well-behaved people are obliged to endure, because of the misdeeds and dishonesty of others. Taxes and the credit system have been fruitful sources of indignant protests and innumerable suggestions from such writers for centuries. In the meantime, the great system of protection, which we call insurance, has grown up, and with it certain attendant evils, which hamper its usefulness and throw unnecessary and unjust burdens upon honest people who are obliged to take advantage of the guaranty of indemnity which it affords. It is the object of the author to present a study of the true nature of insurance, to point out the baleful influences and practices which grew out of the present methods, and to suggest some remedies to correct these evils. Many of the facts and illustrations presented by Mr. Campbell are matters of common knowledge, but perhaps the application of the effect of the conditions outlined on the welfare of every individual has never before been so clearly demonstrated. The common error is to suppose that the insurance companies are the ones solely interested from
(1864) 17 C. B. N. S. 482.