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recovery was properly refused, but on the ground that a quasi-contractual right is essentially equitable, and so should not be allowed when there is an adequate remedy on the express contract. This conclusion may be sound, but on the view here advanced is inapplicable to the case, since the assignee had no rights under the express contract.2
Self-INTEREST AS THE BASIS FOR THE DEVELOPMENT OF THE Law. – The law's development has been a fertile field of discussion since jurisprudence has been the subject of study and investigation. Whether custom becomes law when recognized by the courts or is binding law before such recognition, it is an acknowledged source of law. Economic changes in the conditions of the times exercise a potent influence on customs and necessarily call forth changes in the law either by direct or by judicial legislation. The forces which accomplish such alterations are discussed in an interesting contribution to recent periodical literature. The Modern Conception of Animus, by Brooks Adams, 19 Green Bag 12 (January, 1907)
The writer takes the position that law is not a science in itself, but expresses a resultant of social forces. He maintains that the law is molded by the dominant class exercising its powers for its own self-interest. It is the animus of the actor, he contends, which controls human actions and therefore limits legal responsibility. Consequently, since rules of evidence and definitions control the proof of animus, the dominant class accomplishes its purpose by shaping the rules of evidence. Abstract principles of justice have had little to do with the development of legal principles or procedure. To illustrate, the writer divides the treatment of crime into four periods. First, the period after the Norman invasion exemplifies the influence of the warlike class. Crimes of violence could be proved only by an eyewitness, and the accused could clear himself by combat or the ordeal. Then, for the better suppression of heresy, the church abolished the ordeal, and the jury trial arose. During this period the upper class had the benefit of clergy, besides great influence over the individual jurymen, to protect it. The next period showed the disappearance of castles and body-guards. As a result, a severe criminal code was made to protect the land-owners from marauders. Lastly, this severity was relaxed when the extension of the police system afforded sufficient protection in itself.
The writer has made out a plausible case against the dominant class. While warfare was constant and the state too decentralized to afford any protection, the fighting class held the upper hand and its might was right. But the last period, when punishment of crime became less severe, hardly supports his position. The extreme stand taken violates most modern ideas of the law. Its ultimate object has been expressed as the highest well-being of society.8 It is the effort of a people to express its idea of right, although that idea may be constantly changing Surely, unless justice is made a mere hypocritical conception of the dominant class to blind itself and others to its real motives, the writer's view cannot be upheld.
AFFIDAVITS IN ATTACHMENT. II. Raymond D. Thurber. 7 Bench & Bar 92. BRUNSWICK SUCCESSION, The.Gordon E. Sherman. Dealing with the importance
of primary treaties between the states of the German Empire in German constitu
tional law. 16 Yale L. J. 176. CAPITAL AND CAPITAL STOCK. Frederick Dwight. A review of the authorities on
the exact meaning of the words as used in statutes. 16 Yale L. J. 161.
1 But see Gilbert, etc., Co. v. Butler, 146 Mass. 82.
? If Mr. Costigan's contention that the plaintiff had rights under the contract is correct, then the defendant's deliberate refusal to pay would be a repudiation of the contract and the plaintiff could sue in indebitatus assumpsit for restitution of value, since repudiation amounts to abandonment. See 7 Colum. L. Rev. 47. Cf. Keener, Quasi-Contracts, 303. 3 Holland, Jurisp., 10 ed., 77.
4 See 18 Harv. L. Rev. 272.
CODE NAPOLEON, How it was MADE AND ITS PLACE IN THE WORLD'S JURIS
U. M. Rose. 40 Am. L. Rev. 833. CONSTITUTIONALITY OF THE JUVENILE Court LAWS OF ILLINOIS. Anon. Dis
cussing adversely a decision that commitment under the laws violates the father's constitutional right to the child's services. 133 Nat. Corp. Rep. 468. See 19
HARV. L. Rev. 374. CONTRACTS OF INDEMNITY. T. F. Martin. Discussing under the English decisions
their effect in the covenants given by purchasers of leaseholds or of lands subject
to restrictive covenants. 4 Commonwealth L. Rev. 13. DOCTRINE Of Boston IcE COMPANY v. POTTER, THE. George P. Costigan, Jr.
7 Colum. L. Rev. 32. See supra. EVOLUTION OF THE LAW BY JUDICIAL DECISION. II. Robert G. Street. 14 Am.
Lawyer 554. INTERNATIONAL COLLECTIONS. W. L. Penfield. 39 Chi. Leg. News 165. INTERNATIONAL CONFERENCE AT RIO DE JANEIRO. Hannis Taylor. Discussing
particularly the making of treaties which shall force submission to arbitration for all claims of a pecuniary nature held by people of one nation against
another. 40 Am. L. Rev. 896. MediÆVAL CAUSE CELEBRE, A. John M. Zane. A detailed description of a
thirteenth century trial at Westminster based on Bracton's Note Book, the case involving the mediæval notion of adoptions, and the legal fiction by which the
judges permitted it. i Ill. L. Rev. 363. MODERN CONCEPTION OF ANIMUS, THE. Brooks Adams. 19 Green Bag 12. See
supra. NON-FEDERAL LAW ADMINISTERED IN FEDERAL COURTS, THE. Wm. Trickett.
40 Am. L. Rev. 819. See 18 Harv. L. Rev. 134. POWER OF MUNICIPAL CORPORATIONS TO MAKE SPECIAL ASSESSMENTS FOR LOCAL
IMPROVEMENTS, THE. Edson B. Valentine. 68 Alb. L. J. 325. PRIORITIES OF DEBENTURES AND GARNISHED DEBTS, THE. Anon. 51 Sol. J. 110. PRIVILEGE OF SILENCE AND IMMUNITY STATUTES, THE. Franklin A. Beecher.
40 Am. L. Rev. 869, 64 Cent. L. J. 3. See 20 Harv. L. Rev. 61. QUESTIONS IN THE LAW OF FRAUDULENT ALIENATIONS, SOME. Anon. Tracing
through the English cases the change in legal meaning undergone by the words “intent to delay, hinder or defraud," and the substitution of external tests of
fraud for internal. 16 Madras L. J. 383. ReformS IN THE LAW OF FUTURE INTERESTS NEEDED IN ILLINOIS. II. Albert
Martin Kales. i Ill. L. Rev. 374. RESCISSION OF EXECUTED CONTRACTS OF SALE FOR BREACH OF WARRANTY.
George A. Lee. 10 L. N. (Northport) 188. See 16 Harv. L. Rev. 465. SEGREGATION OF JAPANESE STUDENTS BY THE SCHOOL AUTHORITIES OF SAN
FRANCISCO. Charles Cheney Hyde. Discussing the question from a legal and
from a political viewpoint. 19 Green Bag 38. See 20 Harv. L. Rev. 337. SUGGESTIONS CONCERNING THE LAW OF FIXTURES, SOME. Joseph W. Bingham.
Attempting to lay down the principles underlying the law of fixtures, and to demonstrate that they form a consistent and easily comprehensible body of rules.
7 Colum. L. Rev. I. TITLES TO COAL LAND IN PENNSYLVANIA AND INCIDENTAL MONOPOLIES CON
NECTED THEREWITH. Alfred Hand. Maintaining that the way to prevent injustice arising from such monopoly is through the exercise of the power vested
in the government to control railway rates. 16 Yale L. J. 167. UNSOUNDNESS OF MIND IN RELATION TO Torts. H. Dean Bamford. Contending,
contrary to American decisions, that total insanity should excuse a defendant from liability for his torts. 4 Commonwealth L. Rev. 3.
COURTS AND PROCEDURE IN ENGLAND AND IN NEW JERSEY. By Charles
H. Hartshorne. Newark, N. J.: Toney & Sage. 1905. pp. xi, 233. The articles contained in this book were published in the New Jersey Law Journal during the discussion of proposed amendments to the constitution making a slight change in the judicial system of the state. Mr. Hartshorne's object was to defeat the proposed plan with the purpose of bringing about a much more radical change, and most of these articles were published for the purpose of showing that the existing system was antiquated, intricate, and inefficient, and also that there were in other states and in England systems that were more simple, more direct, and better adapted to the administration of justice under modern conditions. It is the plans adopted in England, Massachusetts, and Connecticut that are chiefly used as examples for the reform which he insisted should be made in New Jersey.
The courts of New Jersey retain the names and the functions of the old English courts from which they were derived. Equity jurisdiction renains in the Court of Chancery, and common law rights are enforced by several different courts of law. Mr. Hartshorne insists upon the unification of the courts and on doing away with the exclusive division of jurisdiction between district courts, and gives many illustrations from New Jersey cases of delay and failure of justice because a suit begun in one court should have been brought in another or could not be fully determined without resort to another. He makes a tabular comparison of several different judicial systems and gives a clear account of the English courts and their procedure.
To lawyers of New Jersey, familiar with the practical working of their systems, the difficulties stated so earnestly by Mr. Hartshorne appear to be overestimated and his objections theoretical rather than practical. If there are many courts with many ancient names, it is only because the judges in exercising various kinds of jurisdiction are called by the names of the old English courts by which these different jurisdictions were exercised. The bar of New Jersey is not unobservant of the changes that have been made in other states and in England in having one form of procedure and one court for law and equity, but the great majority of its members are firmly convinced by observation of other systems and experience with their own, that both law and equity, so long as the two systems exist with different principles and different remedies, are more safely and more exactly administered by different modes of procedure and by judges specially trained and experienced in the different systems. They do not think it prudent to give the great powers of the chancellor to every county judge. They think it best that counsel should understand the distinction between legal and equitable principles and remedies, and should be careful to know what his rights and remedies are before he brings his suit, and they believe that in practice there is little more delay because of going into the wrong court than because of mistakes in the choice of the remedy.
The proposed amendment to the constitution which Mr. Hartshorne criticised was defeated at the polls, and a new plan has now been suggested by a commission appointed by the governor. The new plan retains the systems of law and equity with separate modes of precedure and trial as heretofore, but it does unify the courts by making one supreme court with several divisions and it does make provision for the transfer of cases from one division to another. By this means it removes the defect in the present system which was the subject of Mr. Hartshorne's most vigorous criticism.
E. Q. K.
A MANUAL OF THE PRINCIPLES OF EQUITY. By John Indermaur. Sixth
Edition. London: Geo. Barber. 1906. pp. xxxii, 597 This manual is divided into three parts. The first tells about the origin of the Court of Chancery and its substitute effected by the Judicature Act of 1873. In an intervening chapter, twelve“ maxims ” of equity are stated and briefly illustrated. Part two deals with matters specially assigned by the Judicature Act to the Chancery Division of the High Court, and forms the bulk of the book. The third part devotes about one hundred and fifty pages to some doctrines which originated in equity and are still classed under its jurisdiction, though not covered specially by the statute of 1873. In an appendix, five important English statutes are printed. The book contains, further, a short preface by the editor of this edition, Charles Thwaites; a table of contents; an index of cases, of statutes, and of the edition of text-books to which any reference is made, and also a full, workable general index.
The book now appears in its sixth edition, — during a life of only twenty years. The present issue differs materially from the fifth only in considerable alterations in three chapters, as also in the insertion of numerous cases and certain statutory changes of the last four years.
Although the author says distinctly that the essence of equity lies in the relief it gives, yet it may be doubted whether the beginner would realize that fact where theory is so briefly handled and so much subordinated to a statement of the English statutory fusion of law and equity in late years. The great merit of the work remains in its excellence as a book of quick reference for the Eng. glish practitioner. Its use in America might well be considerable to students of civil government, in that here one branch of the present English court structure is admirably treated.
W. S. McN.
THE POWER TO REGULATE CORPORATIONS AND COMMERCE: A Discussion
of the Existence, Basis, Nature, and Scope of the Common Law of the United States. By Frank Hendrick. New York and London : G. P. Put
nam's Sons. 1906. pp. Ixxii, 516. 8vo. One is tempted to say more against this book than it deserves; for the author's method is exasperating indeed. His line of thought is so obscure in itself, and it is so obstructed by extraneous learning which seems to have no relation to the conclusion, that the reader loses his patience in every section.
As nearly as the reviewer can apprehend the meaning of the author (and he must confess that in spite of an epitome of the argument in the preface he would not be surprised to learn that the author means the exact opposite), he argues that corporations are created and allowed to engage in commerce by the common law, without the help of legislation ; that the only common law is a law common to the whole United States, and not restricted to any state; that the United States courts have common law jurisdiction to enforce the provisions of this law in the case of all corporations, and that no legislation is required for the regulation by the United States of public service corporations engaged in interstate commerce.
Each one of these assertions is absolutely contrary to law, as every lawyer knows; and a lengthy review of the work or a pointing out of the numerous lesser errors and inconsistencies would be ungracious and useless. The author has gathered a mass of information and has cited many authorities, which he does not use in a very lawyer-like way. The book will be found useful for its collection of authorities, and as a picture of the legal condition of our country if centralization had its perfect work and there were one law extending over the whole United States.
J. H. B.
SUPPLEMENT TO SNYDER'S INTERSTATE COMMERCE ACT AND FEDERAL
Anti-Trust Laws, embracing the Railway Rate Bill approved June 29, 1906, amending the Commerce Act and Elkins Act; with an introduction and full notes of judicial decisions rendered since the publication of the work in July, 1904; with a reference to the anti-trust laws of the several states. Including also the Employers' Liability Bill, Pure Food Bill, Meat Inspection Bill, and Hall-Mark or Jewellers Liability Bill. Containing also an index and table of cases. By William L. Snyder. New York:
Baker, Voorhis & Company, 1906. pp. xl, 178. 8vo. This is a supplement to the work by Mr. Snyder which was reviewed in 18 HARVARD LAW REVIEW 241. It is valuable, like the earlier book, chiefly as a convenient collection of late statutes and decisions bearing upon a most interesting, important, and rapidly developing branch of the law. The reviewer has found the original work useful in dealing with questions of interstate commerce, and the supplement seems a necessary addition in view of the recent legislation upon the subject.
H. LE B. S.
AVING stated i general propositions as to the requisites for
justification, it is now proposed to apply these tests to some hypothetical cases. But it should be premised that the views now to be expressed must to some extent represent simply the ideas of the individual writer rather than a consensus of judicial opinion. Some cases, which might well have turned on the question of justification, have gone off on other issues; and hence there has been less discussion of justification than might have been expected.? In the scarcity of direct authority as to some situations, one cannot feel sure that each of the particular problems has been correctly solved. It may, however, be possible to indicate the lines on which these problems must be worked out.3
1 Ante, p. 361.
? As to possible justification, or necessity to justify, in case of an employer's threat to discharge his employees if they trade with plaintiff, see 18 Harv. L. Rev. 417, 418; and of. 44 Am. L. Reg. (N. S.) 481-484.
8 These hypothetical cases are, of course, discussed on the assumption that the general views previously stated as to prima facie liability are correct, although we do not stop in each case to point out exactly how these views specially apply to that particular case.
Some readers who believe that the defendant should be exonerated in various hypothetical cases where we think him liable, may base their conclusion on the ground that the defendant's conduct needs no justification. Disagreeing with the views previously expressed in this article as to primâ facie liability, they think that in certain cases there is no call upon the defendant to justify his conduct. In some of these instances, if they had thought that the defendant's conduct was prima facie action. able, they might possibly have held the attempted justification insufficient.