law, may be put thus. Let us suppose, first, that the common law imposes liability for a certain act. A statute is passed changing this liability if the actor comply with a specified condition. It follows that the old common law liability persists if he do not so comply. We will suppose, again, that the common law negatives liability for a certain act under all circumstances. A statute is passed declaring this non-liability only in case the actor comply with a certain condition. By necessary inference he would seem to incur that liability if he failed so to comply. A recent writer has applied the first of these problems in interpreting a troublesome section of the Negotiable Instruments Law. Liability of an Agent under the Negotiable Instruments Law, by L. P. M., 10 Law Notes (Northport) 104 (Sept., 1906). In brief the argument is this. To be negoti able commercial paper must show on its face who is bound, principal or agent. Where this did not clearly appear, judges construed very harshly against the agent until "to escape liability the agent must exclude it." 1 At common law, then, authorized or unauthorized, the agent was bound unless the instrument revealed to the point of self-exclusion that he signed for another. The Negotiable Instruments Law 2 imposes a different test, that of fair interpretation, but on one condition only. If the agent be duly authorized, the instrument need now only fairly show the representative capacity; but if unauthorized, the writer argues, it must still conform to the canon of the common law which permits escape from liability on the part of the agent if he practically excludes himself.

If the writer's statement of the common law be accepted as accurate, his conclusion cannot be disputed. With his premise, however, issue can be taken. Lord Ellenborough's remark, one not to be taken too seriously, has seemingly blinded him to the current of American decisions. True, never did mere descriptio personae excuse an agent; but the Negotiable Instruments Law as distinctly enacts the same, -"the mere adoption of words describing him as an agent without disclosing his principal, does not exempt him from personal liability." Our courts have consistently construed these instruments as a reasonable business man would construe them in the light of mercantile usages.* Lord Ellenborough's rule has not found favor. So far as matter of construction well may, the American rule seems admirably codified, — "words indicating that he signs for or on behalf of a principal or in a representative capacity." The statute expresses, not a partial change, as the writer insists, but a partial declaration of the common law. Our first formula has no application to the facts; it is the second that applies. Thus, authorized or unauthorized, the agent was not bound on the instrument at common law if it fairly showed that he signed for his disclosed principal. By the statute he is still not bound if duly authorized. If unauthorized, is he not by necessary implication bound on the instrument, even though he express enough to exclude him at common law? would so seem, and this view, the writer admits, has been unanimously taken by the draftsman of the act, its critics, its defenders and expositors. Ballou v. Talbot is pro tanto no longer law.

It

Against this "negative intendment" the writer also invokes the dogma that all statutes in derogation of the common law are to be strictly construed. His dogma is happily obsolescent. In view of a century's statutory efforts to subvert it, the common law is no longer the something sacred that Coke pronounced it.7 "Parrot-like repetition of a false and outworn maxim only hampers benign legislation.' The merits of the doctrine under discussion are quite apart from its existence; those who acknowledge it may most regret it. A new remedy

1 Lord Ellenborough in Leadbitter v. Farrow, 5 M. & S. 345.

See The Warkworth, L. R. 9 P. D. 21; Chamberlain v. Western Transportation Co., 44 N. Y. 305; Sedgwick, Stat. and Const. Law, 267 n., and cases cited.

7 See INST. 282 b, l. 3, § 485.

can hardly be said to be necessary in view of the unauthorized agent's liability for deceit and implied warranty.í Nor does parol evidence of authority as a prerequisite to deciding whether any one is bound on the instrument seem in aid of negotiability.2

ACT OF CONgress KnowN AS THE EMPLOYERS' LIABILITY ACT AFFECTING COMMON CARRIERS IS UNCONSTITUTIONAL AND Void, The. Garrard B. Winston and Blackburn Esterline. 63 Cent. L. J. 278.

CAN THE ACCUMULATION OF GREAT WEALTH BE REGULATED BY TAXATION? Affirmative: Aaron A. Ferris. Negative: Alexander Hadden. 4 Oh. L. Rep. 260. CODE OF LEGAL ETHICS, A. Adopted by the Colorado Bar Association for the guidance of its members. Giving rules for the conduct of attorneys in their relations with the bench, jury, clients and witnesses, both in and out of court, and suggestions as to the proper conduct of cases and amount of fees. 6 Brief 212. CONSEQUENCES OF A TRUSTEE'S FAILURE to Convert AS BETWEEN TENANT FOR LIFE AND REMAINDERMAN, THE. Walter G. Hart. Laying down four rules as governing the distribution of property in English courts in this case. 22 L. Quar. Rev. 285.

COPYRIGHT BILL, THE. Charles Porterfield. Arguing against the bill in its present form. 10 L. N. (Northport) 85, 107.

EFFECT OF REMARRIAGE IN VIOLATION OF THE ACT OF 1905, THE. Anon. A concise but full discussion of the effect of the Illinois Statute prohibiting remarriage of divorced parties within one year of the decree upon remarriage in another state. 33 Nat. Corp. Rep. 37.

EFFECT OF CORPORATE GREED UPON THE Trend of RECENT DECISIONS INVOLVING SO-CALLED " VESTED" RIGHTS OF CORPORATIONS, THE. Anon. Stating that the trend of such decisions has been inimical to "vested rights," especially in federal courts and as to public service corporations. 33 Nat. Corp. Rep. 5.

FEDERAL JURISPRUDENCE IN RELATION TO IRREGULAR MUNICIPAL BONDS, THE. Anon. Calling attention to the greater tendency of federal over state courts to hold municipalities to their irregular bond issues, when some legislative authority is recited. 31 Nat. Corp. Rep. 97.

FUTURE INTERESTS IN LAND. I. Albert Martin Kales. Applying a classification of future interests as limited by way of succession and by way of interruption. 22 L. Quar. Rev. 250.

GOVERNMENT OF LAW AS Distinguished from a GoveRNMENT OF FUNCTIONARIES, A. Hannis Taylor. 18 Green Bag 489.

INDEMNITY BONDS UPON PAYMENT OF LOST INSTRUMENTS. Anon. Legislation advocated in place of the discretion of the court. 23 Banking L. J. 525. INDEPENDENCE of the FEDERAL JUDICIARY. Hannis Taylor. 40 Am. L. Rev. 481. INDEPENDENCE of the JudiciARY. Judson Harmon. A brief survey of the struggle by which the judges of England (Coke the first) won independence of the king, how the judiciary was made separate in the United States, and the need of keeping it free from political influence. 14 Am. Lawyer 391.

IS OUR JURISPRUDENCE GROWING BETTER OR WORSE? I. W. Foltz. Commenting upon the inexactitude and instability of the common law and arguing in favor of a system of jurisprudence founded on definite maxims. 23 Chi. L. J. 185. LANDLORD'S RIGHT TO RECOVER FOR INJURY TO USE AND OCCUPATION BY TEMPORARY NUISANCE. Anon. Criticising the doctrine that after a tenant has recovered for damage to his use and occupation caused by a temporary nuisance the landlord cannot recover for damage to rental values. 13 Case & Comment 34. LANGDELL, CHRISTOPHER C. Samuel F. Batchelder. A sketch of the life of Professor Langdell and the early history of the case system. 18 Green Bag 437. LANGDELL, CHRISTOPHER COLUMBUS. Ralph Wardlaw Gloag. A brief review of Professor Langdell's life, and a criticism of the case system for the study of law. 68 Alb. L. J. 231.

LATEST CHAPTER OF THE AMERICAN LAW Of Prize and CAPTURE, THE. Charles Chauncey Binney. 54 Am. L. Rev. 537

LEGAL COMPLICATIONS ARISING FROM GRAND JURY PROCEEDINGS. F. Beecher. Discussing how far witnesses are immune from prosecution for slanderous statements made before the grand jury. 63 Cent. L. J. 67.

1 See Polhill v. Walter, 3 B. & Ad. 114; Collen v. Wright, 8 E. & B. 647.

2 See 14 HARV. L. REV. 247.

LEGITIMATE FUNCTIONS OF JUDGE-MADE LAW, THE. Hannis Taylor. Suggesting that the elasticity necessary to meet advancing conditions has been, and must be, supplied by the judges. 14 Am. Lawyer 400.

LIABILITY OF AN AGENT UNDER THE NEGOTIABLE INSTRUMENTS LAW. L. P. M. 10 L. N. (Northport) 104. See supra.

LIMITATION OF ACTIONS BROUGHT BY CREDITORS AGAINST CORPORATION STOCKHOLDERS. George P. Costigan, Jr. 18 Green Bag 550.

LORD MANSFIELD AND HIS RELATION TO OUR LAWS. William L. Royall. Dealing with Lord Mansfield's relation to his time and his relation to English jurisprudence. 14 Am. Lawyer 297, 355.

MONSTROUS REGIMENT OF THE RULE AGAINST PERPETUITIES, THE. Charles Sweet. Maintaining, in a review of Gray's Rule against Perpetuities, that the rule does not apply to common-law future interests. 18 Jurid. Rev. 132.

MUNICIPAL Codes in the Middle West. J. A. Fairlie. A criticism of municipal government as organized under the codes in Illinois, Ohio, and Indiana. 21 Pol. Sci. Q. 434.

NECESSITY FOR NATIONAL LEGISLATION ON BILLS OF LADING, THE. Thomas B. Paton. Discussing the desirability, from a banker's point of view, of such legislation. 23 Banking L. J. 571.

NEEDED IMPROVEMENTS IN THE LAWS AFFECTING THE BANKING BUSINESS. Thomas B. Paton. An address before the American Bankers' Association, 1906. 23 Banking L. J. 529.

NEGOTIABLE VOUCHER CHECKS. George C. Sinclair. Setting forth the advantages and legal status of voucher checks containing an itemized account stated on the reverse side. 23 Banking L. J. 609.

NON-DISCLOSURE, UPON THE Sale of Land, of a Latent DEFECT KNOWN TO THE VENDOR. T. C. Williams. Discussing Carlisle v. Salt, 1906, 1 Ch. 335; admitting that a contract for land may be set aside when the defect affects title, but not when it affects quality or quantity. 50 Sol. J. 611.

PAYMENT BY A BANKER OF FRAUDULENTLY ALTERED Cheques. Anon. Maintaining that, without negligence on the part of the drawer, the banker and not the drawer is liable for payment of an altered cheque. 50 Sol. J. 713. QUALITY OF JURORS, THE. Jackson Guy. Protesting against the increasing statutory exemptions from jury service of the most intelligent classes of citizens. Reg. 430.

12 Va. L. QUEST FOR ERROR AND THE DOING OF JUSTICE, THE. Charles F. Amidon. Advocating the adoption of the English practice in appellate courts to reverse only for errors which go to the substance of the case. 5 Can. L. Rev. 364. QUESTIONS OF INTERNATIONAL LAW IN THE DEPORTATION OF ALIENS. Charles Noble Gregory. 18 Jurid. Rev. 121.

REBIRTH OF THE CORPORATION, THE. Peter S. Grosscup. Deploring the ownership of corporations by the few, and suggesting a remedy. 31 Nat. Corp. Rep. 104, 127. SHOULD THE GRAND JURY SYSTEM BE ABOLISHED? George Lawyer. Contending that it should be abolished. 23 Chi. L. J. 195.

STATE VERSUS CORPORATION. C. T. Carr. Popular review of the trust situation, with special reference to America. 18 Jurid. Rev. 159.

USE OF MEDICAL BOOKS IN THE EXAMINATION OF EXPERTS, THE. Joseph H. Taulane. Containing arguments favoring the admission of views expressed in standard medical works, and a review of the rules adopted in different jurisdictions. 4 Crim. L. J. of India 33.

VALIDITY AND EFFECT OF CONDITIONS ATTACHED TO LEGACIES AND DEVISES AGAINST CONTESTING WILL. B. B. C. Collating the law of the various jurisdictions. 10 L. N. (Northport) 128. VENDOR'S RIGHT OF RESCISSION, A. Anon. An interesting summary of the cases holding that upon the condition of sale enabling the vendor to rescind upon an ejection or requisition being made which he is "unable or unwilling to comply with "should be placed the restriction that the unwillingness shall not be capricious or arbitrary. 50 Sol. J. 493.

WHEN LAND IS SOLD FOR DELINQUENT TAXES, AND PURCHASER FAILS TO HAVE DEED EXECUTED WITHIN THE STATUTORY PERIOD, WHAT IS THE CONDITION OF THE TITLE? J. F. Bouchelle. A discussion of the question as it arises under statute, concluding that the original owner retains title and the purchaser holds only a lien for the amount of taxes. 12 Va. L. Reg. 279.

YEAR BOOKS, THE. I. W. S. Holdsworth. Their history and human side. 22 L. Quar. Rev. 266.

II. BOOK REVIEWS.

NEW ENGLAND TOWN LAW: a Digest of Statutes and Decisions concerning Towns and Town Officers. By James S. Garland. Boston: The Boston Book Co.

1906.

This interesting book on New England town law is of wider interest than its title would seem to indicate. As the author says (p. 83), speaking of the town: "A scheme of local autonomy which has proved itself so well suited to the genius of a great nation, and is so easily adapted to the changing needs of its people, deserves not only the highest praise as an instrument of government, but as an object of study challenges the best thought of students of political institutions.'

Examination of the book will show that it is full of materials for the student of our political institutions. It is, so far as the writer knows, the first attempt to gather into one book the town laws of all the New England states, laws copied or imitated throughout the country wherever the town system has been adopted. It is therefore a source book on town laws. An introduction of 83 pages treats of the subject generally, giving an account of the formation of the first settlements in New England towns, townships, or more properly speaking, separate little colonies, by the union of which, under charters subsequently obtained from England, the New England colonies, afterwards states, were the result. In view of the prevailing tendencies of our courts of law to minimize the sphere of town power, it cannot be too strongly impressed upon all that these towns came first and the chartered colony came afterwards. There is no instance in New England of immigration of settlers bringing with them a charter with the intention of forming a colony in the sense of a state, but everywhere the immigrants formed separate little colonies or towns that by coalescence under some charter subsequently obtained from England formed, respectively, the colonies that later became the New England states.

In the history and the political development of these New England towns there is therefore sound historical foundation for the claim that within their own limited sphere, the towns enjoyed a certain limited sovereignty that has disappeared in the limited sovereignty assumed and accorded by the courts to the united colony that afterwards became the state. Mr. Garland does not profess to follow the steps by which the towns have lost their original inherent powers, and indeed the material for such a study does not exist in print. For the process was about completed when the success of the American Revolution gave to the states a legal prestige they had never had before. This process of loss of town power and of gain of colonial legislative power was going on from the beginning of the settlement of the country until the end of the Revolution, but no reports of the decisions of the courts on these questions are in print until the process was about completed at the time when the state constitutions and the United States Constitution were adopted. He who would study this subject must go back of th. printed reports of decided cases, and if they are still preserved he must study the records of the unreported cases from 1620 to about 1790.

The work under review treats only of town law as it exists in print, in the revised and general statutes of the New England States. After a general introduction, the work is divided into sections treating of the town laws of each New England state, prefacing each with introductory matter. The section on Massachusetts consists of 158 pages, divided into consideration of laws relating to Assessors of Taxes, Caucuses and Primaries, Collector of Taxes, etc. A section on the town laws of Maine of 151 pages, one on those of New Hampshire of 116 pages, one on those of Vermont of 140 pages, one on those of Rhode Island of 127 pages, and one on those of Connecticut of 119 pages, all similarly subdivided under appropriate heads, complete the volume of nearly 900 pages. For some reason not apparent or explained, the book is not consecutively paged, and there is no table of cases, although many are appropriately cited under the topics discussed. Nor is there any statement of "contents," its place being supplied by an index.

52

The book will prove to be of value to the practical man and also to the philosophical student of New England town law. The author states both sides of questions that are disputed, leaving the person using the book to come to his own conclusion. This is in accord with the prevalent view that it is no part of the duty of a writer on law topics to point out what he thinks the law should be. There is room, however, for a difference of opinion on this subject.

A. M. E.

THE ELEMENTS OF JURISPRUDENCE. By Thomas Erskine Holland. Tenth Edition. Oxford University Press: New York and London. 1906. pp.

XXV, 443.

The two preceding editions of this classical treatise have already been reviewed in the HARVARD LAW REVIEW, and little need be added as to the general excellence of the treatise. We may say that Professor Holland's general analysis of the law is rather dictated by historical accidents of growth in the English law than by fundamental legal principle; that his chief division into public and private law is neither required by theory nor useful in practice, being in substance a division between all normal and most abnormal law, on the one hand, and a single branch of abnormal law on the other; and that his use of foreign law for comparison is not of the underlying principles of such law, but of the definitions of speculative writers. But with all said which can fairly be said in criticism of the work, it is easily the clearest, the soundest, and the best of all works on jurisprudence in the English language; and that lawyers and students of law appreciate it as such is shown by its rapidly issued new editions.

In this edition not much has been added to the discussions in the text, but many recent cases have been added to the notes. Important and fundamental questions have been at issue since the last edition. The right to one's livelihood, as threatened by trade combinations (Allen v. Flood and Quinn v. Leatham) is rather non-committally discussed (p. 180); the quasi-corporate trades union (Taff Vale Ry. v. Amalgamated Society) is noticed (p. 333); the tendency of Cape Colony to break away from the strict Roman-Dutch law as to 66 cause or consideration for a contract is stated (p. 275). This phenomenon might be recognized as common where the common law and the civil law come into juxtaposition, as in Louisiana and Quebec.

On one point the reviewer wishes to make his protest. Professor Holland mentions the common law as a species of customary law (p. 51). This it seems not to be. The common law took its origin almost, one might say, at a single historical moment-when Henry II, having actually gained general jurisdiction for his judges, instructed them in exercising this new jurisdiction, to apply as law a system of justice which should be based not only upon the general principles of the customary law, but also on equity and justice. The common law from its inception has been based upon principles, not upon custom. It is to be compared in its nature not with the ordinary Germanic folk-law, but to the law administered in the middle ages by the Royal Court of Bohemia, described in Sigel's Slavic Law, pp. 72-83. "We remark only in England and Bohemia," that author writes (though he might perhaps have added to the number of examples), "an eager study of legal precedents and the application of scientific methods, worked out by the glossators and commentators, to home law practice.' Customary law, properly so called, is of historic interest, but is hardly a fit field for legal science.

J. H. B.

LIMITATIONS OF THE TAXING POWER. By James M. Gray. San Francisco: Bancroft-Whitney Co. 1906. pp. lx, 1316.

The scope of this book is indicated fully by its secondary title: "A Treatise upon the Constitutional Law governing Taxation and the Incurrence of Public Debt in the United States, in the Several States, and in the Territories." The treatment is full and minute; and, as is necessary in dealing exhaustively with a