State Transportation.

I. That a State, in the matter of intrastate traffic, retains power of control over the same, unless said control has been bargained away by express grant.

2. That the presumption always is against such grant.

3. That a State, in the exercise of its power of control, is prohibited by the Constitution of the United States from reducing fares or freights below reasonable rates, and that the Federal courts, and not the State legislatures, are to be the final judges of what is reasonable.

The result is, therefore, that a very large measure of protection is afforded to the railroads through the medium of the Federal Constitution. So far as interstate commerce is concerned, no State can interfere with that, for it lies exclusively within the national domain; while, so far as relates to State commerce, that is subject to the limitation that no State, under cover of legislation, can deprive a railroad of its property without due process of law, or deny it the equal protection of the laws. As has been seen, the Supreme Court did not arrive at this conclusion at once, or without something of hesitation. When, in 1876, the Granger Cases were decided, there was not that disposition to give the clauses of the Constitution the ample breadth of construction which they have since received. The propriety of the change in the Court's atti tude, however, cannot be doubted. Possibly nothing has done more to sustain the value of American railroad securities, or to create greater confidence therein, than the knowledge that beyond and above the sovereign power of the State there is the supreme authority of the nation over interstate as well as foreign commerce; while beyond and above that is the ultimate, final doctrine of vested rights, which neither State nor nation, jointly or separately, can invade or impair. Constitution, Art. I., section 8, clause 3; Amdt. XIV., clause 1; Amdt. V.

William F. Dana.

HARVARD LAW REVIEW.

Published monthly, during the Academic Year, by Harvard Law Students.

For

It is good news, and authentic, that the printing of the Year Books is to be resumed. The work of supplementing and filling the gaps in the old Year Books had been carried on as far as the 15th Edw. III. in 1891. some unexplained reason nothing has appeared since. But now Mr. Pike is to be allowed to resume his admirable work of editing; and it may be hoped that it will not be stopped again until we have not only the gaps all filled in the old books, but an edition of the black-letter volumes themselves which is worthy of their new companions.

ON November 27 last, a local historical society in Boston celebrated by an address at the Old South Church the six hundredth anniversary of the British Parliament summoned by Edward I. It is strange that the anniversary of an event of such importance in the history of popular government should have been so little recognized. The oration in Boston was by A. C. Goodell, Jr., the learned editor of the Province Laws. One hazards little in guessing that the chairman of the committee of arrangements for the Boston celebration, Prof. M. M. Bigelow, distinguished for many contributions to historical and legal knowledge, was the moving cause in this event. The exercises were introduced by a neat and appreciative short address by him.

THE address on Legal Education by the Lord Chief Justice of England, delivered in Lincoln's Inn Hall at the request of the Council of Legal Education on October 28 last, is a paper of first rate importance. It confesses to the full, with illustrations, the extremely poor condition of English legal education, as contrasted with what is found on the Continent and in this country, and urges the establishing of a great and worthy school of law. "Is it," asks Lord Russell in his closing words, "an idle dream to hope that even in our day and generation there may here arise a great school of law worthy of our time, worthy of one of the first and noblest of human

sciences, to which, attracted by the fame of its teaching, students from all parts of the world may flock, and from which shall go forth men to practise, to teach, and to administer the law with a true and high ideal of the dignity of their mission?" Admirable words! To many of the lovers of England and English law, it has long been a wonder that this consummation is so long delayed. It is devoutly to be wished that Lord Russell may now press the matter to a conclusion; nothing would bring more benefit to the law of his country, or more honor to himself and the great office which he holds.

Lord Russell's specific proposition is the establishing by royal charter of "The Inns of Court School of Law." The governing body is to consist of thirty members, ten named by the Inns, ten by the Crown, one each by the Lord Chancellor, the Lord Chief Justice, and the Master of the Rolls, one each by the four Universities of Oxford, Cambridge, London, and Victoria, and three by the Incorporated Law Society. "I should confer on such a body the granting of academic distinctions, and I should commit to it in fullest confidence the settling of a scheme of preliminary examination, of systematic instruction, and of final tests of fitness for the profession of the law. . . . To the Inns of Court, I need hardly say, we must mainly look for the funds to carry on the work in worthy fashion. . . . In the existing system the annual expenditure amounts to some £7,000. If the lectures and classes are made attractive, I doubt whether any larger sum, or, at all events, any substantially larger sum, would be required to work the scheme which I advocate."

This is suggesting what would be equivalent here to an endowment of say $1,000,000. The existing permanent endowment of the Harvard Law School is a little under $250,000.

THE SELDEN SOCIETY. The Selden Society has shown commendable energy in overcoming past delays in its publications, and the issue of the selection of Coroner's Rolls, edited by Dr. Gross of Harvard University, will bring them up to date. Advance sheets of this last are now at hand. From these it appears that the volume will be an interesting one, and a great aid to the study of the functions of the Coroner, and of the history of the decay of his office from the time that it was held only by landed knights elected by the shire (furnishing perhaps the machinery for sending later such knights to Parliament) up to the early falling into disrepute of the crowner's quest law and the recent rather ridiculous position of the office.

The subjects of inquests afford peculiar scope for dramatic effects, to which the style of the verdicts lends itself. For example, one reads that Margaret went with a certain jug of the value of one penny to draw water from the said well in the said close and by chance slipped and fell into the said well and sank, and ill is thought of no man for the death of the said Margaret." Any one interested in the old crimes and the old modes of trial will find much that is new in these Rolls. The Selden Society deserve all praise and support for their services to the history of the common law.

REFORM IN LAW REPORTING.

If Coke in his day lamented the existence of so many as fifteen volumes of reported decisions, what is to be said

of the present state of affairs, when these volumes are to be counted by tens of thousands, and this vast number is being yearly augmented? It is a full recognition of the evil of this multiplicity of reports that has led the American Bar Association to constitute a permanent "Committee on Law Reporting and Digesting." Systematic efforts are henceforth to be made by the Committee toward preventing the duplication of State and Federal reports, and toward securing, too, more uniformity among reporters in the construction of both the index and the case syllabus. The Committee, as stated in their report submitted at the meeting of the Bar Association held at Detroit last August, sent a circular letter to the various official court reportsixty-five in all. The answers, besides furnishing valuable data as to the defects in the present varying systems of reporting, reveal a nearly unanimous desire on the part of the writers for a convention of official reporters. In such a convention under the auspices of the Committee, there is a strong likelihood of inaugurating far-reaching and uniform remedial measures.

ers,

THE TORRENS LAND TRANSFER SYSTEM ON TRIAL. At the recent election in Cook County, Illinois, it was voted to adopt the provisions of the Land Transfer Act passed by the last legislature. This brings the city of Chicago within the operation of the act. Although several States have at different times appointed commissioners to investigate the so-called "Torrens" land transfer system, that is, a system of transfer of land by record of title, it is now for the first time to be given a trial in this country. The merits and demerits of the system have been pretty well threshed out, and the consensus of opinion is strongly in its favor as an original question. As a powerful plea, however, against introducing it, it is urged that the conditions that have secured its success in a new country like Australia are lacking here; chiefly because the land, in our older States at least, is not under government ownership, which would permit the government to inaugurate without inconvenience such a system of transfer, but is parcelled out among a multitude of private landholders; and it is repugnant to them, long accustomed to our system of deed registration, to risk their land titles by a radical change in the methods of transfer. A demonstration, however, by actual test, that the transfer by record of title is capable of successfully supplanting our present methods will go a long way toward answering these conservative objections. The success of the Illinois experiment therefore probably insures like action in other States. In this lies its importance.

The act, while modelled upon the Torrens system as it exists in Australia, differs in one important respect. The first registration does not give absolute title; it confers possessory title merely; but as a result of a short period of limitation provided for in the same act, this possessory title becomes absolute, in the absence of adverse claims filed in the mean time, at the end of five years. Thus, by a little postponement of the time when the full benefit of the act is to be realized, the title is made absolute in a manner already familiar in this country; and there is no danger that the true owner's title may be summarily divested. As a result, too, the expense of an exhaustive examination of title, which necessarily precedes any registration conferring absolute title, is avoided.

The act has the merit also of excluding unnecessary detail. It leaves to the administrative officers the main burden of working out the details for carrying its provisions into effect. It was the heaping of detail on detail

that contributed to make the majority report of the Massachusetts Commission in 1892 objectionable. It may be questioned, however, if the act in its failure to make registration compulsory does not stop short of effecting the best results. The option given to landholders to transfer by deed as heretofore, or by record of title, is in effect the establishment of a dual system of transfer. Such a system was emphatically pronounced "unworkable" by an English Commission in 1868. Even though the dual system be not unworkable, compulsory registration of title possesses marked advantages. It certainly hastens the time when all land titles shall be conclusively evidenced by registration. Information as to the working of the Illinois act will be eagerly awaited.

In a recent note on Greenwood Ice & Coal Co. v. Georgia Home Ins. Co., 17 So. Rep. 83 (Miss.), 9 HARVARD LAW REVIEW, 218, the case of New York Central Ins. Co. v. National Protection Ins. Co., 14 N. Y. 85, was cited, but the following recent New York decisions which have kindly been furnished by the Hon. William M. Ross of the Onondaga County bench were overlooked: Pratt v. The Insurance Co., 130 N. Y. 206; Empire State Ins. Co. v. American Central Ins. Co., 138 N. Y. 446; Knaus v. Gottfried Krueger Brewing Cc, 142 N. Y. 70; Bank of New York Ass'n. v. American Dock & Trust Co., 143 N. Y. 559.

An examination of these cases shows that the test now applied by the New York courts as to whether an agent may represent both parties is whether or not he is invested with discretion. No other jurisdictions seem to have recognized this distinction. Contracts made by the agent as representing both parties are held voidable, regardless of lack of discretion in the agent, and the agent is not allowed to recover commission from either party in absence of their knowledge of the dual agency. _Connel v. Smith, 142 Pa. St. 25; Rice v. Wood, 113 Mass. 133; Berlin v. Farwell, 31 Pac. Rep. 527 (Cal.); Bell v. McConnell, 37 Ohio St. 396; Kronenberger v. Fricke, 22 Ill. App. 550; Salomons v. Pender, 34 L. J. Ex. 95. But see Hammond v. Bookwalter, 39 N. E. Rep. 872 (Ind.). The test of discretion is distinctly repudiated in Porter v. Woodruff, 36 N. J. Eq. 174, and Jansen v. Williams, 55 N. W. Rep. 279 (Neb.).

As to the agent's right to commission from both parties where he simply introduces them and they make their own contract, see Montraso v. Eddy, 94 Mich. 100; Green v. Robertson, 64 Cal. 75.

ISSUE LIVING-CHILD EN VENTRE SA MÈRE. In re Burrows, [1895] 2 Ch. 497, a recent English case, raises a point of interest and significance. The case turned upon the construction of a will, which devised property to A for life, and upon her death to B, for her absolute use and benefit in case she have issue living at the death of A; "but in case she has no issue then living," then over. At the time of A's death, B was enceinte, and the following day gave birth to a living child. The question thus sharply presented on the facts was, whether the child en ventre sa mère was issue living " within the meaning of the will. Chitty, J., who sat as judge, refusing to distinguish between "child" and "issue as an over-refinement, held that the child was to be deemed living at the death of A, for the benefit, not of the child, but of B.

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