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Manx LAND TENURE. Reginald D. Farrant. 22 L. Quar. Rev. 136.
Green Bag 269.
Bench & Bar 10. NATIONAL BANK AS STOCKHOLDER IN OTHER CORPORATIONS. Anon. 23 Bank
ing L. J. 357 ObservatiONS CONCERNING CAUTIONARY INSTRUCTIONS TO JURIES, SOME. Eugene
McQuillin. Collecting the cases and summarizing the holdings upon this subject.
63 Cent. L. J. 5. Part PAYMENT OF CLAIM AS ACCORD AND SATISFACTION. Raymond D. Thurber.
5 Bench & Bar 90. PARTITION OF A VESSEL IN ADMIRALTY. James D. Dewell, Jr. 15 Yale L. J. 394. POINT IN THE INTERPRETATION OF STATUTES, A. H. B. Higgins. Stating the case
where Act B defines the meaning of words in Act A, and is later repealed. 3
Commonwealth L. Rev. 155. PRINCIPLES OF CHINESE LAW AND EQUITY, THE. Edward H. Parker. 22 L. Quar. PROPOSED Act RELATING TO INTERSTATE BILLS OF LADING, THE. Thomas B.
Paton. An address before the New Jersey Bankers' Association, 1906. 23 Bank
ing L. J. 401. RECENT CHAPTER OF THE ENGLISH CONSTITUTION, A. D. H. Chamberlain. A
discussion of Mr. Balfour's refusal to resign or to dissolve Parliament in July,
1905. 15 Yale L. J. 315. REFORM IN CRIMINAL LAW OF GERMANY. Ernest Bruncken. 68 Alb. L. J. u. RESULTING TRUSTS AND THE STATUTE OF FRAUDS. Harlan F. Stone. Contending
that in the case of a conveyance on an oral trust for the grantor there should be a
resulting trust in his favor. 6 Columbia L. Rev. 326. RIGHT OF JURY TRIAL IN THE DEPENDENCIES, THE. James Wilford Garner.
Commenting on four recent United States Supreme Court decisions. 40 Am. L. RIGHTS OF CREDITORS OF A MUNICIPAL CORPORATION WHEN THE STATE HAS
PASSED A LAW TO ABOLISH OR ALTER IT, THE. Richard W. Flournoy.
Va. L. Reg. 175. See supra. RIGHTS AND LIABILITIES OF FOREIGN INSURANCE COMPANIES IN CANADA. E.
Lafleur. 5 Can. L. Rev. 249. SOUL OF THE PROFESSION, THE. Charles F. Chamberlayne. Advocating the teach
ing of legal ethics in law schools. 18 Green Bag 396. SPECIAL LEGISLATION AS DEFINED IN THE ILLINOIS CASES. Albert M. Kales.
Ill. L. Rev. 63. STATE REGULATION OF RAILROAD RATES AND CHARGES. Andrew Alexander
Bruce. A discussion of the underlying theory and its practical application. 62
Cent. L. J. 458. STATUTORY REGULATION OF EMPLOYER AND EMPLOYEE. O. H. Myrick. 63 Cent. TOBACCO 'řRUST DECISIONS, The. Henry W. Taft. Upholding the recent decisions
that a corporation could not refuse to produce its books at the instance of the
state. 6 Columbia L. Rev. 375. Two RECENT CASES ON INTERSTATE MARITAL RELATIONS. H. A. Bigelow. Com
paring Haddock v. Haddock with Atherton v. Atherton. 18 Green Bag 348. VALIDITY OF CONTRACTS BETWEEN CORPORATIONS HAVING COMMON DIRECTORS,
The. Harold M. Bowman. 4. Mich. L. Rev. 577. VALIDITY OF MUNICIPAL ORDINANCES REGULATING THE INSPECTION AND SALE
OF MilK AND CREAM. Eugene McQuillin. Collecting the authorities. 62
Cent. L. J. 439. VALIDITY OF STATE STATUTES PROHIBITING CONTRACTS OF EXEMPTION BY CAR
RIERS CONCERNING INTERSTATE COMMERCE, THE. 7. R. Tucker. An argument in favor of their constitutionality. 12 Va. L. Reg. 1.
L. J. 43
II. BOOK REVIEWS.
JURISPRUDENCE, LAW, AND ETHICS. PROFESSIONAL ETHICS. By Edgar B.
Kinkead. New York: The Banks Law Publishing Company. 1905. pp. vii, 381. 8vo. This is largely a book of quotations, of familiar quotations, from the current treatises on jurisprudence. The learned author has confined himself to books in English. The passages cited are naturally of very different merit; some are wise, some are silly, many are vapid. Mr. Kinkead gives them all with perfect impartiality. They form a jumble of contradictions. Mr. Austin, for instance, has little in common with Professor Lorimer. The reader perusing them all would certainly have food for thought, but for rather perplexed thought. Nor would the author, we are afraid, mu help him out of his perplexity. Professor Kinkead has often given the different views of a problem without seeking to solve it.
The main thesis of the treatise is that law has something to do with morals, but exactly what is not made clear. Indeed the book is not free from faults common to many of its class, a failure in precision and definition, an unwillingness to grapple closely with facts, and a disposition to slip off into profitless generalities.
Thus, p. 98. “Opinions differ, some regarding the Roman law as clumsy, bombastic in language, while others regard it as a model.” Is the Roman law clumsy and bombastic in language? Is the Roman law a model, and if yea, for what is it a model ?
P. 152. ^ Transcendental ethical theories may be found on paper, but are not present when lawyers and judges are called upon to act.'
What are transcendental ethics? How do they differ from other ethics? Why are they not present as alleged ?
P. 167. “But Ethics diverges from Psychology, because the science of human duty is to be determined by the outward acts of men, though they may parallel in so far as it may be necessary to resort to well-settled theories."
By what is psychology determined unless by the outward acts of men ? How far is it necessary to resort to well-settled theories? What theories are well settled ?
P. 205. “A flatly absurd rule or unjust decision within the jurisdiction, for practical purposes, must be acknowledged to be both the source and the evidence of the law, until overruled or changed.”
Is there any different acknowledgment to be made for theoretical purposes ? If so, how and why?
P. 205. “ If it is not in harmony with the moral principle, it may not be regarded as sound law, but nevertheless it will operate as law until overruled or modified by the legislature.”
Is it to be regarded as sound law? Does sound law mean law as it is or law as it ought to be? What is the difference between “ being ”law and “ operating as " law? We might go on indefinitely.
Yet one cannot but be glad that the learned author has confined himself mainly to generalities, however vague and contradictory, when one sees how he deals with a special case, in accepting the Maybrick legend.
He tells us that Mrs. Maybrick was “a beautiful, cultured, highly connected lady"; that her conviction seems to have been brought about by the tyranny of an English judge who “was seized with a frenzy because he thought this American woman had been untrue to her marriage vows"; that “ the suspicion of Mrs. Maybrick's complicity consisted of the fact that arsenic had been found in his [her husband's] body, that arsenic was found in his medicines, in his victuals"; that “it was not shown in the trial that Mrs. Maybrick ever anywhere purchased any arsenic”; and that “this once beautiful American lady, who was related to a Chief Justice of the United States and to other prominent American people, remained for years in a solitary English prison."
Would any one suppose from this that the fact of the woman's being an adulteress rested not on the “ thought" of a judge " seized with a frenzy," but on her confession in open court; that it was proved and had to be admitted by her counsel and herself that she did buy fly-papers for the purpose of preparing a solution of arsenic, and did prepare such a solution; and that she put a white powder into a bottle of liquid food in which arsenic was detected. Her excuse was that she wanted the solution of arsenic as a cosmetic, and that her husband told her to put in the powder. The jury did not believe her, and in view of the fact that on a Wednesday when the doctor considered that her husband was recovering from an attack of nervous dyspepsia she wrote to her paramour that her husband was “ sick unto death," and that her husband did die on Friday, it would have been strange if they had believed her.
On p. 138, Professor Kinkead says, "inspired by a spirit of patriotism, if for no other reason, Americans should lay claims of superiority to [sic] its governmental and legal systems." This is an odd bit of chauvinism to find in a treatise on jurisprudence. Yet the English can doubtless learn many things from us to their advantage. But we are afraid a steady and unhysterical administration of criminal law is not among them.
It is the just boast of the English courts that on the trial of an indictment even-handed justice is dealt out without regard to looks or education or station. The judge holds the jury up to the law and the facts. " A beautiful, cultured, highly connected lady” related to a Chief Justice and other prominent people, who murders by poison, runs as good a chance of conviction as an ugly, igno rant, friendless man who is cousin
to nobody. We regret to say that might not be universally true in this country.
Mr. Kinkead's treatment of the Maybrick case is an odd sequel to a discussion on the identity of law and ethics.
It is only fair to say, however, that we have observed nothing else so had in the book.
J. C. G.
AN ESSAY ON THE PRINCIPLES OF CIRCUMSTANTIAL EVIDENCE, illustrated
by Numerous Cases. By William Wills. Fifth English Edition of 1902, edited by Sir Alfred Wills, with American Notes by George E. Beers and Arthur L. Corbin. Boston: Boston Book Co. 1905. pp. xiii, 448, and
about 150 extra lettered pages with the American Notes. 8vo. It is good to have this book renewed in life. It now enters on its third generation, and the English editor has carefully preserved its freshness by adding new illustrations drawn chiefly from the reports in the Old Bailey Papers and the London Times during the last forty years. First published in 1838, it became famous abroad as well as at home, and has long served as an arsenal for countless forensic arguments and as a vade mecum for criminal practitioners. There is a sentimental touch in the circumstance that this English edition comes from the hand of the author's son, now a judge, and that two of his grandsons, one a medical man and the other a barrister, have assisted in the work.
We are glad to notice that in the preface the English editor properly pillories the flagrant literary looting done in 1896 by an American treatise entitled “A Treatise on the Law of Circumstantial Evidence, by Arthur P. Will, of the Chicago Bar.” It was remarkable enough that a person of that name should be drawn to write a book on the same subject and under the same title as this already famous book by the author Wills. We thought so at the time, and have more than once publicly commented on the moral aspect of such a course. But it now further appears, from Justice Wills' preface, that this American book of 1896, out of 315 pages in the English Book of 1862, appropriated bodily all but 6 pages of a statutory tenor and 365 lines of the remainder. We trust that every library which contains the American piracy will now throw it into the waste-basket, mark out the title in the catalogue, and put the present work
in its place. There are two or three other works which ought to be similarly excommunicated, -- but that is another story:
The English editor has well perpetuated the spirit of the original by his illustrations from modern trials. The footprints, the bloodstains, the laundry numbers on the linen, the arsenic in the tarts, the water-mark on the paper, and the ballad in the bullet-wad, – these familiar stage-accessories of crime and detection reappear in new varieties to illustrate and to convince. Of course, we are opposed to the plan here followed of interpolating additions to a classical treatise without printers' marks to attribute suum cuique; but that is a minor matter The usefulness of the book has been preserved as well as though it were just written.
The American Notes, which are placed at the end of each chapter and make about one-fourth of the book, have collated a large number of American decisions ranging over the whole subject, how many cannot be told, for by some oddity there is no table of cases. It would seem that they have not been adequately worked over to form a real commentary on the text, and they also seem scrappy; for example, at p. 32 the author says that Coke's old distinction of presumption as “violent or necessary, probable or grave, and slight,” is * specious and fanciful, rather than practical and real”; and yet at p. 422 a the American note quotes in full, from an old opinion of Walworth, in New York, somewhere back in 1840, an elaborate statement of the same worn-out distinction, without comment or cross-reference. Moreover, the reader should not be left ignorant of the modern repudiation of the prevailing use of “presumption " as meaning “inference" in the author's day.
But the chief disappointment is that the American Notes do not fit the spirit of the original book. Apart from the Molineux case, and a few others, the Notes consist merely of citations of decisions on abstract rules of law. Now the main virtue of the book has always lain in its copious illustrations of the probative force of different circumstances of inference, regardless of the rules of evidence. In the American annals there is a vast wealth of such illustrations. Some day a book founded on a thorough search of this material will do for us the same service which the original book has done for England.
J. H. W.
A TREATISE ON THE PRINCIPLES AND PRACTICE OF THE ACTION OF EJECT
MENT AND STATUTORY SUBSTITUTES. By Geo. W. Warvelle. Chicago :
T. H. Flood and Company. 1905. pp. lviii, 679. 8vo. As the scope of this excellent work is much broader than its title suggests (since it treats adequately the entire subject of trial of disputed land titles), it will unquestionably be found of great assistance to members of the legal profession engaged in any kind of litigation involving this branch of the law, especially in the preparation of their cases for trial. Examination of the book, we are pleased to say, shows it to be a clearly written and intelligent piece of work, bearing evidence of painstaking research and careful study on the part of the author, and confirms the statement of the author in his preface, that “ the work is essentially a treatise, not a digest." In this latter respect, happily, it differs from many recent so-called text-books, which appear to be mere compilations of headnotes and digest paragraphs, thrown together with some attempt, though often very slight, — at topical arrangement.
A few of the author's statements of law call for comment. Thus the statement on p. 440 that “even at common law a bastard might inherit from his mother” we think is not supported by the authorities. See Com. Dig., Bastard (E), Descent (C) 12; 1 Bl. COM., Bk. I., ch. 16, *459; 4 KENT COM. *413. Again at p. 368, as we understand the text, the author says that if a will has once been admitted to probate and is thereafter lost or destroyed, its contents may be proved by parol evidence; but “if the will had not been admitted to probate, no testimony concerning it should be received." It is well settled
that the contents of a lost or destroyed will may be established by parol testimony, and when so established may be admitted to probate as the will of the deceased. See, in addition to the well-known cases of Davis v. Sigourney, 8 Met. 487, and Sugden v. St. Leonards, i P. D. 154, the recent and interesting case of Tarbell v. Forbes, 177 Mass. 238.
The citation of cases is, professedly, not exhaustive (Preface, p. vi). It would nevertheless seem that all leading cases, such for example as those just cited, require notice. It also seems surprising that in his discussion of proof of heirship by the records and decrees of probate courts, the author makes no reference whatever to so important a case as Shores v. Hooper (153 Mass. 228). Moreover, while on the subject of citation, the author's lack of uniformity in his mode of citing cases should be referred to. Some attempt is made at giving, in addition to the reference to the official reports, parallel references to the National Reporter System, the American State Reports, etc. Such parallel references, however, are not habitually, or even frequently, given. Often they are wholly omitted ; sometimes they are given when a case is first cited and not given when the same case is again cited on a later page. Again, in his citation of decisions of the United States Supreme Court, this same lack of uniformity appears. Thus Cincinnati v. White is cited on pp. 43 and 44 as reported in 31 U. S. 431 ; on p. 267, as in 6 Peters 431. Other instances of the same sort could be given. Personally we prefer the latter form of citation, since we believe it is in more general use among the profession, and that the employment of a different form of citation simply confuses, annoys, and delays the practitioner. But at all events we feel certain that one form or other should be adopted by an author and consistently adhered to throughout his work.
The faults of this work, however, are small when compared with its real merits and practical value ; and we have no desire to obscure the latter by a prolonged discussion of the former. A few misprints have been noticed, for the most part unimportant (see pp. 43, 391, 392; Arnold v. Cheeseborough, cited on p. 413 as in 85 Fed., is reported in 58 Fed.) We have also noticed that neither Stein v. Bowman, cited on p. 428, nor De Lane v. Moore, cited on p. 417, is listed in the table of cases.
S. H. H.
A SUMMARY OF TORTS. By Frank A. Erwin, Second Edition, revised
and enlarged. New York: Leslie J. Tompkins. 1906. pp. viii, 225.
8vo. This book presents in brief and excellent form the general principles of the law of Torts. The industry and judgment of the author are apparent, not in the matter of the work, which is almost wholly non-original, but in the choice and arrangement of the material. Almost every statement is quoted verbatim, with appropriate quotation-marks and references, from decisions in leading cases or the commentaries of well-known authors. One might expect to find the effect thus produced fragmentary, and to be impressed by the absence of coherence and logical sequence; but so skillfully has Professor Erwin done his work as weaver and so aptly has he supplied the necessary links of connective and explanatory sentences, that the book is not only an orderly treatment of the leading topics in the law, but it is distinctly readable as well. The analysis follows that which has been commonly adopted in larger and more pretentious text-books : treating first the general considerations involved in all cases of tort, and taking up then the specific classes of wrongs ex delicto for which the law gives redress. The general discussion includes a statement of principles which might be grouped with equal or greater logic under other headings in the law, such as the rules governing the liability of a principal for acts of his agent, the fellow servant rule, the liability of corporations for torts intra and ultra vires, and the survivorship of actions for personal injuries ; but these rules, though dependent upon principles not inherent in any theories of tort, are of such