sistently urge that the principal is estopped to deny its truth. To this the reply is made that in such an action the principal is estopped to assert, not that the representation is untrue, but that the agent did not act as his agent in making it.

The article closes by calling attention to a well drawn distinction made by the author in his book between the cases where the principal is bound, where the agent acts within what appears to be his authority, and where he appears to act within what is really his authority.

NOVEMBER. Federal Supervision of Insurance.-CARMAN F. RANDOLPH. This article, written as a professional opinion at the request of several insurance companies, carefully discusses the power, or lack of power of Congress under the constitution to regulate the insurance business and the management of insurance companies, and the advantages and disadvantages which would result to the companies from federal control.

Whatever power Congress should exercise in this field must be derived from the inter-state commerce clause of the constitution. Federal jurisdiction over national banks will not cover the matter, for the banks are chartered by virtue of the fiscal power. But the Supreme Court has several times expressly decided that the insurance business is not inter-state commerce (Paul v. Virginia, 8 Wall. 168; Hooper v. California, 155 U. S. 648; N. Y. Ins. Co. v. Cravens, 178 U. S. 389). The expressions of opinion in these cases, Mr. Randolph believes, are not mere dicta, but are the gist of the decisions, and he is strongly of the opinion that the Court will not reverse itself. Moreover, he believes the decisions are right on principle. The national importance of the undertakings of life insurance companies is not sufficient of itself, under our constitution, to bring the matter within the national control, and the transaction of forwarding the policies and the premiums from one state to another is merely an incident of the business, too slight even in the Lottery Case (188 U. S. 321) to ground federal action.

The possibility of a reversal of former decisions, however, and the importance of the subject, warrant examination of the results. Among the great advantages to the companies would be the avoidance of the state regulations, which are now so numerous and varying as to be exceedingly troublesome and expensive. Another advantage would be that no state could forbid the entrance of a foreign insurance company. An invidious discrimination must disappear. Insurance, when inter-state commerce, of course could not be taxed

by the states. But Mr. Randolph doubts whether the companies would gain in this respect, as Congress may well be eager to seize upon the new source of revenue. Moreover, there is a possibility that Congress may be willing and able to leave to the states, by consent, considerable powers of supervision and taxation (see In re Ealvrer, 140 U. S. 545; Owensborough Nat. Bank v. Owensborough, 173 U. S. 664, 668), and the representatives of the states may demand some such arrangement before voting to deprive their constituencies of their present powers. A distinct disadvantage to the insurance companies would consist in the subjection of their rate making agreement to the operation of the federal anti-trust laws.

As a method of improving present conditions, independently of federal control, the author suggests urging upon Congress model insurance regulations for the District of Columbia. Such standards "should obtain a reputation of substantial value" and "could be adopted by any state without loss of dignity."

A well-managed federal investigation bureau would "leave the states without an excuse to duplicate important parts of its work." R. McC. M.

MICHIGAN LAW REVIEW.

JUNE. The Examination of the Medical Expert.-H. B. HUTCHINS. This is a continuation of the article in the May Review, which we discussed in the last number of THE BRIEF. The opinion for which the expert is asked, usually involves the very issue that the jury are to determine. This is not, however, generally regarded as an invasion of the function of the jury, but the expert's opinion becomes a fact to be considered in connection with all the testimony received. This exception to the general rule forbidding witnesses to give their opinions is justified by the necessity of the situation. It is therefore important to observe carefully its limitations and qualifications. Questions calling for vague and speculative answers should be avoided as tending to confusion and to the introduction of immaterial issues. The expert should also be able to speak with a certain degree of definiteness. While in many cases, especially those involving the chances of recovery or the probable effect of an injury on the future health of a party, all that any expert could say would be that the probabilities were so and so, any question that would be purely speculative in character should be excluded. The admission in evidence of scientific books is dealt with at some length. While experts may refer to such books in support of their opinion, 'Kent.-Dean of the Michigan Law School.

and while counsel may use such books in cross-examination of the expert, it is not proper for counsel to read from them in support of their argument, nor should such books or even extracts from them be admitted in evidence. The reason for this is said to be that new discoveries in science, particularly in medicine, are constantly bringing about a change of view, so that a medical work which was a standard authority last year, may through new discoveries be obsolete this year. The citation of cases in this article is very complete and the subject is handled in a thoroughly scholarly manner.

Freedom of Contract.-JEROME C. KNOWLTON.1 This is an interesting discussion of the cases dealing with the constitutional guaranty of freedom of contract. The attempt of legislatures to regulate the hours of labor have been the occasion of a number of important decisions on this subject. In Atkins v. Kansas, 191 U. S. 207, the United States Supreme Court made a distinction between a statute made applicable only to persons engaged in the performance of work for the state or some municipality of the state, and a similar statute applied to laborers in purely private work. The former was held constitutional upon the ground that "the work being of a public character, absolutely under the control of the state and its municipal agents acting by its authority, it is for the state to prescribe the conditions under which it will permit work of that kind to be done." The New York case of People v. Grout, 179 N. Y. 417, and the Michigan case of Kuhn v. Detroit, 70 Mich. 534, are referred to as opposed to this decision. On the question of contracts between individuals, we find a long line of decisions upholding the freedom of contracts. Statutes providing for weekly payment of wages by corporations, prohibiting the imposing of a fine by an employer upon his employee for an imperfection in work, or providing for payment of wages in lawful money and prohibiting the truck system, have all been declared unconstitutional. It is fundamental, however, that the right of contract is subject to the police power of the state. Acts forming examining boards for horse-shoers, boards of examiners for barbers, and the like, have met with varying fate. Mr. Knowlton is of the opinion that neither of these acts can be upheld as a valid exercise of the police power. Perhaps the most important decision of late years is the Lochner case involving the constitutionality of an act regulating hours of labor in bakeries and confectionery establishments. The law was upheld by the New York Court 1 Kent.-Professor in the Michigan Law School.

of Appeals (People v. Lochner, 177 N. Y. 145) on the ground that it was enacted to protect the health and safety of the public by regulating the sanitary condition of bakeries in the state. This was reversed by the United States Supreme Court (Lochner v. New York, 198 U. S. 45), on the ground that there was no reasonable foundation for holding this to be necessary or appropriate as a health law to safeguard the public health, or the health of the individuals who are following the trade of a baker. Mr. Justice Peckham in the prevailing opinion said: "It might be safely affirmed that almost all occupations more or less affect the health. There must be more than the mere fact of the possible existence of some small amount of unhealthiness to warrant legislative interference with liberty."

Mandamus Against a Governor.-EDWARD J. MYERS. The two lines of decisions dealing with the question whether the courts have the power to issue a writ of mandamus against the chief executive of a state to compel the performance of a duty imposed upon him by law, are reviewed in this article and the reasons advanced in support of the two views discussed. The weight of authority is opposed to the issuance of the writ in such cases. In at least ten states, however, it has been held that insofar as the Governor is required to perform some ministerial act in regard to which he has no discretionary power, a writ of mandamus will be granted. The objections to such a course are that the independent and distinctive features of the three departments of government forbid the interference of one with the other; that the writ if granted could not be enforced; and that the Governor's accountability to the people at the polls and his liability to impeachment afford adequate remedies for his failure to perform ministerial duties.

NOVEMBER. The Territorial Expansion of the Common Law Ideal.-JOHN F. SIMMONS. This is an enthusiastic panegyric on the expansion of the Anglo-Saxon power. Prepared as an address delivered before the Bar Association of the State of Indiana, the article is calculated rather to arouse enthusiasm in an audience than to impress the quiet reader. The westward movement of the Aryan people is traced and some account given of the development of the Anglo-Saxon race. The term common law, as employed by Mr. Simmons, means little more than the fundamental principle of individual liberty and moral right. "To find the beginning of the common law," says he, "is to search the history of the human family back to the dawn of moral consciousness in man. To trace thence

66

its history, is to follow the growth of human ideas through the ages to the present. To depict its influence is to paint in detail upon the canvas of time the tides of civilization as they have ebbed and flowed over the ocean of recognized history." The common law, as he defines it, is largely responsible for the awakening of Japan, and it is the common law principle which is tearing Russian aristocracy with its false doctrines into shreds and tatters. Government for the people," he predicts, "is coming in Russia as it has come to an ever-widening extent around the world, and the Anglo-Saxon common law is about to come into its own. With prophetic outlook we can forsee the whole planet, enlightened and beautified by its beneficent beams, transformed into a union of brotherhood and realizing the dream of Tennyson in the Parliament of Man, the Federation of the World.'"

66

66

Consideration v. Causa in Roman-American Law. JOSEPH H. DRAKE. The influence of the common law upon the Roman law where the two have come in close contact, is strikingly shown in the modification of the Roman causa and its gradual development into the common law consideration. This result has practically been accomplished in Cape Colony, where the Supreme Court, in the case of Mtembre v. Webster (1904), says that, "The causa of RomanDutch law has become for all practical purposes equivalent to the valuable consideration of the common law." Professor Drake's article is given over largely to the review of the cases in Louisiana, which discuss or attempt to define the terms, "motive," cause," "consideration," and "object." The term causa," as used in the Code Napoléon, is in one respect broader than the English "consideration," and in another respect it is narrower. A gratuitous contract-" le contrat de bienfaisance "—has a sufficient causa, although no consideration. On the other hand, where one stipulates for the benefit of another without having any personal interest that it shall be done, the contract has no causa, although based on a good consideration. The Louisiana code, as early as 1825, gave recognition to those contracts in which the promisor is not benefited, and the courts have shown more and more tendency to adopt the common law idea of consideration as a substitute for the Roman The situation in Louisiana is therefore similar to that announced by the court of Cape Colony. Professor Drake predicts that the same question will arise in Porto Rico. The Porto Rico code repeats the essential provisions of the Louisiana code in regard to the distinction between gifts and contracts, but it also copies the

causa.