ciple or authority, and moreover, the reasoning is inapplicable to the facts of the principal case, where the negligent protest of the note and not the violation of the agreement to deliver it for cancellation was the basis of the plaintiff's claim. A possible ground for recovery exists in the theory that liability should be attached to any negligent misstatement which causes damage. See 14 HARV. L. REV. 184. But this theory has not yet been accorded general recognition. The facts, however, though they negative actual malice, show a negligent misstatement which injures the plaintiff's credit, and this according to the better view is a sufficient basis for an action of libel. See Shepheard v. Whitaker, 32 L. T. 402. See also 15 HARV. L. Rev. 757.

BOOKS AND PERIODICALS.

LIABILITY OF CONQUERING NATION ON OBLIGATIONS OF Conquered. The responsibility of a conquering nation for the obligations of the vanquished state is ably discussed in a late article. The Liabilities of a Conqueror, by H. Erle Richards, 28 L. Mag. and Rev. 129 (Feb., 1903). The author recognizes that there is no generally accepted principle upon which to determine the extent of these liabilities. He argues that two theories founded on analogies from private law are each defective. One, that the conqueror simply takes possession of the conquered country in defiance of all pre-existing claims in much the same manner as a disseisor, he says is inadequate because it leaves out of account the rights of neutral powers; and the other, that the conqueror is a universal successor like an administrator, he rejects because it affords no way of avoiding responsibility on certain obligations which no conqueror can be expected to assume, such as the debt incurred by the conquered state in prosecuting the war resulting in its downfall.

Though the theory that the conqueror's rights and liabilities are merely those of a possessor has distinguished support (3 FILLIMORE, INTERNAT. LAW, $$ 545-555), the author's criticism of it appears just. It does not seem to be doubted that a debt owed by a debtor outside the conquered territory can be recovered. See U. S. v. McRae, L. R. 8 Eq. 69. Yet this clearly cannot be explained on a theory based on possession only. The objection to the theory of universal succession, that there are some debts which no conqueror will assume, seems equally valid.

Mr. Richards proposes to determine the liabilities to be assumed by an application of the principle that prevails as to the assumption of treaty obligations. A successor is admittedly bound only by treaties having reference to the soil, such, for instance, as those concerning the navigation of rivers or the cession of territory, while treaties in their nature personal, such as treaties of commerce or alliance, are extinguished. Mr. Richards contends that the obligations owed to a neutral subject are as extensive as those owed to a neutral nation, but submits that they cannot in any event be more extensive. According to his view, the determining question would simply be whether a given obligation is attached to or charged on the assets taken over by the conqueror. Two objections to this theory may be offered. The first is that the analogy between a treaty and an obligation owed to a private person is not strong. A treaty is a contract between sovereign states, and affects each of the parties in its relation to the whole family of nations. If one considers the disturbance in political or commercial relations which would follow from attempting to combine the treaties of alliance or commerce of the conquered with those of the conquering nation, it is seen at once why such treaties cannot be assumed. Private obligations, on the other hand, might well be assumed without such a disturbing effect on foreign policy. The second objection is that the proposed test, which requires the obligation to be attached to the assets, would exclude a most important obligation which it is generally supposed ought to be assumed, namely, the gen

The author,

But

eral debt of the conquered state existing previously to the war. it is true, regards this general debt as "impliedly "attached to the assets. it is hard to see why an obligation to pay money is in its nature any more attached to the assets than an obligation to permit X to trade, or to buy supplies from Y, and yet the author concedes that these would not be so attached. In private law, a debt is clearly not in general attached to the debtor's assets. On the whole, it would seem a more satisfactory rule that the conquering state, since it takes possession of the assets of the vanquished state, should assume all its obligations toward private persons unless peculiar reasons for their repudiation exist in special cases. Such reasons would exist, as the author points out, with regard to the debt incurred by the conquered state in the war resulting in conquest, and with regard to certain liabilities peculiarly personal to the conquered state, such as a contract to buy army uniforms during a period of years, and other executory contracts which from their nature depend on the continued existence of the conquered state, and possibly a tort liability. To these exceptions might be added obligations likely to disturb the relations of the conqueror with other nations.

GIFT OVER OF REALTY UNDISPOSED OF at Death OF FIRST TAKER. - Chancellor Kent remarked in 1813 that "a valid executory devise of real or personal estate cannot be defeated at the will or pleasure of the first taker," — in other words, that an executory devise which may be defeated by the taker of the prior estate is invalid; and thereafter the law of real property in the United States was formulated with due regard to this doctrine. The facts of the case calling forth the proposition were these: A devise of realty was made to A and his heirs, but if A died without issue the "said property he should die possessed of" was to go over to X. Obviously by the clause quoted the power to dispose of the property in fee by deed and thus defeat the gift over was impliedly given to A, and the Chancellor accordingly declared that the executory devise to X was void. Jackson v. Bull, 10 John. (N. Y.) 19. Modern criticism has shown that the holding was not sustainable on its authorities, the principal case cited in support being a most ill-founded Massachusetts decision. Ide v. Ide, 5 Mass. 499; see GRAY, RESTR. ALIEN. § 68. On theoretical grounds, also, Jackson v. Bull has been subjected to severe adverse comment, an illustration of which appears in a recent article. Effect of Power to Alienate on Executory Devise, by B. M. Thompson, 1 Mich. L. Rev. 427 (Mar., 1903).

This article denies Kent's assertion that an executory devise is invalid if the prior taker has the power to defeat it, and adopts the following test: Is the contingency on which the executory devise is to take effect the "refusal or failure to exercise a power incident to the prior estate devised"? If so, the condition is said to be void and to render the executory devise ineffective. But the estate given to A under the limitation "to A and his heirs, but if A die without issue then over," is, the author says, a conditional fee, of which the power of alienation in fee is not an incident. Cf. 32 Am. L. Reg. N. S. 1045. In Jackson v. Bull, to be sure, such power of disposal was given to the tenant of the conditional fee, but this did not enlarge the conditional fee any more than the power of disposal given to a life-tenant enlarges the life-estate. Hence, says Mr. Thompson, when the gift over was made to comprise such of the property devised as A should die possessed of and was thus in effect limited on the failure to alienate, it was not limited on the failure to exercise a power incident to the prior estate devised, and therefore should have been held valid.

The author's reasoning is technical. The result reached thereby would differ from that of Chancellor Kent at most only in those cases where a conditional fee could be established. Suppose that an absolute fee were given to A with a limitation over to X of the property undisposed of at A's death. According to the author's view the executory devise to X would be bad, since it depends upon the non-exercise of the power of alienation, a power incident to the abso

lute fee granted. Thus in a large class of cases where the influence of Chancellor Kent's decision is greatly to be deplored the author's view would furnish no relief. Yet in this class of cases no reason exists in the nature of things why the executory devise should not be upheld. The reason urged against an executory devise of undisposed of personalty, namely, that the limitation is too indefinite since it is generally impossible to determine the exact property so left, does not apply to devises of realty, which are here under consideration. Moreover, as was pointed out by counsel in early cases in England, if the limitation were to A for life, with power of appointment by deed or will. and in default of appointment over to X, the devise to X would be valid. See Ross v. Ross, 1 Jac. & W. 154, 156. This admittedly valid limitation, however, produces a result identical with that where the fee is given to A with an executory devise over to X of property undisposed of. If, then, there are any valid objections to the latter limitation, they cannot rest on grounds of policy and substantial justice. But the technical objection raised by Mr. Thompson seems equally unavailing. His basic proposition, as his authorities indicate, is but a special expression of the supposed objection of "repugnancy" or "incongruity," an objection which declares that no estate can be granted deprived of its ordinary incidents, but which has been characterized by one judge as "a notion which savors of metaphysical refinement rather than anything substantial." Truro, L. C., in Watkins v. Williams, 3 Macn. & G. 622, 629. Moreover, the recognized possibility of having a conditional fee, which ex vi termini is a fee with some of its ordinary incidents subtracted, is proof positive that no such general rule exists. An executory devise of realty undisposed of at the death of the taker of an absolute fee should accordingly be sustained, and the author's conclusion, in so far as it denies the validity of such a devise, seems incorrect.

Every effort should be made to sustain executory devises of realty undisposed of at the death of the first taker and thus effectuate the testator's intention. It is submitted that they should be upheld except in those cases where to allow them would impose an illegal restraint on alienation. When a tenant in fee is given full power of alienation both by deed and by will, with a gift over only on his failure to exercise that power, certainly no restraint on alienation exists and the executory devise should be upheld. GRAY, Restr. ALIEN. $$ 57-74 g. In Jackson v. Bull, it is to be noted, alienation by will is restrained if A dies without issue. Possibly such conditional restraint might be held to render the gift over inoperative. The actual decision in Jackson v. Bull, therefore, may be sustainable. See GRAY, RESTR. ALIEN. § 56 c. Chancellor Kent's ratio decidendi in that case, however, as Mr. Thompson well points out, is erroneous.

MENT

STATUS OF CORPORATIONS ON DISSOLUTION OF CHARTERING GOVERN- The change of sovereignty in South Africa has given rise to an interesting question concerning the present status of corporations chartered by the old Transvaal government. Although the point is one that rarely arises owing to the fact that the contingency on which it depends is now of infrequent occurrence, it has grown with the wide extension of corporate interests to be one of no small importance. Direct authority on it is very meager, and hence a discussion of it in a late issue of an English magazine deserves remark. The International Status of Modern Companies, by D. F. Pennant, 28 L. Mag. and Rev. 161 (Feb., 1903). The author draws a distinction between municipal and private corporations, and concludes that the former, being mere subdivisions of the central government, cannot survive it, but that the latter are sufficiently independent of it to be unaffected by its dissolution. It is at once obvious that if all corporate charters were ipso facto annulled when the government which granted them ceases to exist, great confusion would result in business circles. In the interim between the death of the old and the proper organization of the

new government, corporate interests would be completely stagnated. Mr. Pen nant's conclusion that private corporations continue to exist is, therefore, in keeping with sound business policy. It is also supported by what authority there is on the point. Kansas Pac. R R. Co. v. Atchison T. & S. F. R. R. Co., 112 U. S. 414; Importing and Exp. Co. of Ga. v. Locke, 50 Ala 332. The ground of this view is that notwithstanding a change of sovereignty all the laws of a country continue as before until the new sovereign takes active steps to change them, a principle well established in the law. Commonwealth v. Chapman, 13 Met. (Mass.) 68. The change is merely in the sovereign itself, while the entire legal system remains undisturbed. The new government simply assumes control of an already existing system. The old sovereignty has passed statutes and granted charters, and all of them are equally the laws and ordinances of that sovereignty, and should continue in effect until the new government sees fit to change them.

The above considerations should be equally conclusive of the status of municipal corporations. Mr. Pennant's premise that municipal corporations are commonly regarded as subdivisions of the central government cannot be disputed, but it would seem that his conclusion does not necessarily follow. Although the municipalities do exercise functions delegated to them by the old sovereign, those functions are of a purely local and non-political nature, entirely unconnected with national affairs. The sovereign in all nations having systems of local self-government remains in active control only of national and political affairs, and only those should be affected by a change of sovereignty. No decisions in point have been found, but it is a matter of history that municipal charters granted by one government have remained in effect under succeeding governments without re-enactment. For example, the city of New York was governed until 1830 under a charter that was granted in 1730. NEW YORK CITY CHARTERS, KENT'S NOTES, p. 71.

CASES ON CRIMINAL LAW. A Selection of Reported Cases on Criminal Law. By William E. Mikell, Assistant Professor of Law in the University of Pennsylvania. Philadelphia: International Printing Co. In two volumes. Vol. I. 1902. pp. 504. 8vo.

The first volume of a new collection of cases on criminal law by William E. Mikell, Assistant Professor of Law in the University of Pennsylvania, intended primarily for use by the students in the University of Pennsylvania Law School, is well worth a careful examination by any one who is interested in the modern methods of teaching law. The book is divided into two parts on the principle which Mr. Bishop and other modern writers have found expedient, the present volume treating of the general elements of crime and the second volume now in preparation covering cases on specific crimes. In theory of treatment this collection of cases is not unlike the "Cases on Criminal Law" of Professor Beale. The introductory cases indicating the sources of criminal law, the chapters on the nature of the criminal act, on criminal intent, on criminal intent as affected by peculiar conditions, and on justification for crime, and finally the chapter on parties to crime, follow very closely the scheme of Professor Beale's book. The noticeable features distinguishing the present work are the more refined subdivision of the subject-matter, the tendency to introduce decisions in which the opinions are long and the arguments pro and con elaborately discussed, and finally the addition of a group of American cases decided since the publication of Mr. Beale's book.

This close subdivision of topics merits distinct approval. The placing of each case under a specific head suggests to the student the principle of law for which it is inserted, and enables the discussion of it in the class-room to be focused upon that principle. The book moreover is thus made far more serviceable to the practitioner, who usually desires to know the law upon a certain specific point and who can turn at once in Mr. Mikell's book to an apt illustra

tion of the general doctrine upon that point and also find appended to it a footnote containing excellent examples of contrary or modified views adopted in other jurisdictions.

The introduction of long opinions seems much more valuable in a book that is to be used for private study than in one that is intended to be used for classroom discussion. The most satisfactory cases for use under the "case system of teaching law are those short, terse decisions which contain a few essential facts and a brief statement by the court of its opinion, but which leave the student to determine the grounds of the court's action and the validity of its position. Decisions which contain elaborate arguments dissecting the varying doctrines upon a questionable point of law leave little opportunity for original thought by a class. At most a student can say only that the decision is right or that a certain objection is not answered convincingly. To the student who does not have the benefit of class discussion the well chosen elaborate opinion is, of course, valuable, as it presents to him just what the discussion by the class and the summary by the teacher ought to put before him.

The recent American cases included in the volume are happily chosen and illustrate effectively the present tendency of the American courts. Under this head one may refer in particular to the cases on criminal conspiracy. The wisdom of introducing the subject of conspiracy into a discussion of the elements of crime may well be doubted; for conspiracy is in fact a specific crime and should be taken up in the volume considering other specific crimes and should not be treated as if it were mere partial performance of a further criminal act like the attempt or solicitation to commit a criminal act. Yet if it be granted that the subject is treated in a suitable place the cases which are chosen from a legion of modern decisions are particularly appropriate.

The publishers are to be congratulated on the make-up of the book. The type is clear and large, and the broad margins give excellent opportunities for additional notes and citations by the student.

W. R. P.

REPORT OF THE MASSACHUSETTS COMMITTEE ON CORPORATION LAWS, created by Acts of 1902, chapter 335. Boston: Wright & Potter Printing Co. 1993 pp. 306. 8vo.

Under the provisions of an act of the Massachusetts Legislature of 1902, a committee of three leading members of the bar was appointed to consider the laws of the state relating to the formation, taxation, and conduct of manufacturing and trading corporations. This act was the product of a growing conviction that the present laws have become unsuited to existing industrial and financial conditions. The committee has now completed its labors and submitted its report to the legislature.

The report contains a criticism of the existing statutes with reference to their theory and practical effect, a suggestion as to the true theory which should govern such legislation, and a draft of a Business Corporation Law, the adoption of which is recommended in place of the existing laws. The committee disapproves of many of the burdensome conditions now imposed on Massachusetts corporations, such as the restrictions on capitalization and the payment of stock and the requirements as to the liability of officers and stockholders, as arbitrary and unsuited to modern business methods. Freedom of organization and capitalization, freedom of self-regulation, and liberality towards foreign corporations, subject only to reasonable supervision and control, are regarded as the guiding principles. The subject of taxation is treated with especial thoroughness. The history of the legislation on this topic is clearly outlined, its burdensome or prohibitive effects on some classes of corporations are carefully analyzed, and its inadequacy under modern conditions is plainly established.

The act recommended by the committee is a conservative revision of present legislation, drawn on liberal lines. It does not change the machinery of the existing laws, yet it considerably increases corporate freedom along the lines