A Question of Ratification in Insurance Law, 19 Green Bag 93 (February, 1907). If an agent without authorization effects insurance on property for the benefit of the owner, can such owner, if he first hears of the transaction after the loss has occurred, ratify the act and recover on the policy? Mr. Case answers in the negative.

From the standpoint of insurance law the question offers little difficulty. It is true that the quasi-agent has not what is commonly termed "an insurable interest." But the fact that he acted in expectation that the insured, who has an insurable interest, would ratify, must be enough to prevent the contract from being void; for otherwise ratification at any time would be useless, since it could not make a void contract valid. As such a transaction is in no way wagering, it would seem not to come under the ban of the law.

But we are confronted with more difficult questions in the law of agency. The maxim that ratification is equivalent to an antecedent command leaves still unsettled when ratification will be permitted. If this subsequent assent with its fictitious relation back were allowed in our supposititious case, the principal could clearly recover. It is often stated, however, that a man cannot ratify a contract at a time when he cannot make it. This principle would seem to support Mr. Case's answer, since a man cannot insure property after it has been destroyed. Again, ratification with its fictitious relation is barred in general when it would work inequitable results. To the argument for Mr. Case that it is inequitable to permit the insured to decide whether or not he will adopt the contract after his opportunity to consider the intervening circumstances, there is the answer that the insurer can recover from the quasi-agent in an action on implied warranty whatever he suffers by the insured's disaffirmance, and that a contrary holding would kill the doctrine of ratification, since this is the situation in every instance. Against him it is urged that since the insurer has received the premium, and since the contingency upon which he conditioned his liability has occurred, it is not inequitable to make him pay as he stipulated. But there is a fallacy in this. If the insured disaffirmed, inasmuch as the quasi-agent would have no ground upon which to recover the premium he paid, the insurer could keep the money without risk of loss, and so refusing to allow the insured to ratify would not give the insurer an enrichment he otherwise would not have. It is suggested that the best theory on which to base the doctrine of ratification is that the assent of the third party at the time of the original transaction is considered as continuing until withdrawn, and this is met by the assent of the other contracting party when the principal later ratifies. According to this, our problem must be answered in the negative, since the insurer's assent cannot be considered as continuing after the occurrence of the loss, for the contract can then no longer be made.

The text-writers lay down the law contrary to Mr. Case's view, and the language of the cases they commonly cite in accord supports them. But, as the writer points out, in all these cases the quasi-agent is part-owner or bailee of the property insured, or has some interest in it. He insists that this actually and logically distinguishes these cases from the problem he puts. The validity of this distinction is uncertain, but thanks are due to him for his exposition of the exact state of the authorities. Mr. Case cites, as in effect supporting his solution of the problem, several cases involving analogous situations, and his deductions from these seem logical.

ABUSE OF THE CORPORATION CHARTER, THE. Don E. Mowry. Analyzing the incorporation law of several states, and urging the necessity of a federal law to govern incorporation. 64 Cent. L. J. 49.

1 Milford Borough v. Water Co., 124 Pa. St. 610.

2 Cook v. Tullis, 18 Wall. (U. S.) 332.

3 Williams v. North China Ins. Co., 1 C. P. D. 757, 766, per Jessel, M. R.

4 Pollock v. Cohen, 32 Oh. St. 514; see 9 HARV. L. REV. 60, 62.

5 See Hagedorn v. Oliverson, 2 M. & S. 485; Story, Agency, § 248.

See A Problem as to Ratification, by Prof. Eugene Wambaugh, 9 HARV. L. REV. 60.

ADMISSIBILITY, IN A CRIMINAL TRIAL, OF THE FORMER TESTIMONY OF A WITNESS, SINCE DEAD. Walter R. Staples. Contending that the rule should be uniform for civil and criminal actions, and that such evidence is admissible. 12 Va. L. Reg. 755. See 13 HARV. L. REV. 687.

ASSIGNMENTS For the BenefiT OF CREDITORS. George A. Macdonald. Discussing the present unsatisfactory status of deeds of assignment in England. 122 L. T. 238. "COMMON LAW LIEN." Anon. Pointing out the inaccurate use of the word "lien" by English courts in so naming the right of auctioneers to retain the price until paid their fees. 26 L. N. (London) 18.

CONSTITUTIONAL ASPECTS OF EMPLOYERS' LIABILITY LEGISLATION. Ernst Freund. Criticizing the proposed Employers' Liability Act in Massachusetts as being too radical a step in the right direction. 19 Green Bag 80.

DEFENSE OF "FAIR COMMENT" IN ACTIONS FOR DEFAMATION, THE. Francis R. Y. Radcliffe. 23 L. Quar. Rev. 97. See 20 HARV. L. REV. 152.

EVIDENCE TO SHOW INTENT. Ernest E. Williams. 23 L. Quar. Rev. 28.

HOW TO STOP PERJURY IN OUR COURTS. W. J. Gaynor. Discussing the summary power conferred by statute in New York on trial judges to punish witnesses who seem to be guilty of perjury. 8 Bench and Bar 15.

INCIDENCE OF ESTATE DUTY IN REGARD TO PERSONALTY, THE.

W. Strachan.

Criticizing the English system of paying estate duty on personalty out of the residuary estate alone. 23 L. Quar. Rev. 88.

INTERSTATE Commerce CLAUSE AND STATE CONTROL OF Foreign CorporATIONS. Frank E. Robson. Pointing out the present diversity in the state laws controlling foreign corporations. 5 Mich. L. Rev. 250.

JAPANESE CODE AND THE FAMILY, THE. Munroe Smith. 23 L. Quar. Rev. 42. JUDICIAL DISPENSATION FROM CONGRESSIONAL STATUTES. William Trickett. Maintaining that the authority to pass on the constitutionality of statutes was not intended to be given to courts by the Constitution. 41 Am. L. Rev. 65. LIABILITY FOR ACTS OF PUBLIC SERVANTS. W. Harrison Moore. Considering how far the shield of the crown should be extended to protect public officers in England from liability. 23 L. Quar. Rev. 12. Cf. 20 HARV. L. REV. 245. MONROE DOCTRINE: ITS STATUS. John F. Simmons. 5 Mich. L. Rev. 236. "MORTGAGE CHARGE" OF THE LAND TRANSFER ACTS, THE. James Edward Hogg. Giving a detailed study of the right embraced in the “charge,” as distinguished from the common law mortgage. 23 L. Quar. Rev. 68.

PAR VALUE OF STOCK, THE. Frederick Dwight. Condemning the present system of fixing the par value of stock irrespective of the real value of the corporation's assets. 16 Yale L. J. 247.

POSSIBLE FEDERAL TRUST LEGISLATION. Walter C. Noyes. Pointing out that Congress can constitutionally regulate our producing trusts by treating them as instrumentalities of interstate commerce. 7 Colum. L. Rev. 93.

W. C. Rodgers.

PRIVILEGED COMMUNICATIONS BETWEEN ATTORNEY And Client. Collecting authorities. 64 Cent. L. J. 66. PROPOSED SPECIAL JURY ACT, THE. Howard O. Sprogle. Briefly stating the purpose and operation of the proposed plan for a preliminary examination of veniremen by jury commissioners. I Ill. L. Rev. 446.

QUESTION OF RATIFICATION IN INSURANCE LAW, A. Frederick T. Case.

Bag 93. See supra.

19 Green

REASONABLE CARE IN THE PAYMENT OF SAVINGS DEPOSITS AND CONSTRUCTION OF PROTECTIVE BY-LAWS. Anon. 24 Banking L. J. 49.

SCHOOLING RIGHTS UNDER OUR TREATY WITH JAPAN. Simeon E. Baldwin. 7 Colum. L. Rev. 85. See 20 HARV. L. REV. 337.

STATE TAX ON ILLINOIS CENTRAL GROSS RECEIPTS ANd the Commerce Power of CONGRESS. Henry Schofield. I Ill. L. Rev. 440. See supra.

STUDY OF ROMAN AND CIVIL LAW, THE. William Wirt Howe. 41 Am. L. Rev. 47.

II. BOOK REVIEWS.

FOUNDATIONS OF LEGAL LIABILITY. By Thomas Atkins Street. In three volumes. Northport, N. Y.: Edward Thompson Co. 1906. pp. xxix, 500; xviii, 559; xi, 572. 8vo. The present work, in its main features, constitutes a general text-book on the subjects of tort and contract. As indicated by the title, however, the author

treats his subjects in a more historical and more scientific manner than is usually found in treatises on those subjects. Mr. Street goes back to the infancy of the common law and discusses the foundations of legal liability in the light of modern thought. While the work necessarily deals with fundamental questions, it is not rudimentary. The most advanced student of the genesis of our law will find food for thought in these three volumes. The main defects of the work are those which always result from an attempt to deal with a broad subject in limited space. The author is too often compelled to give general conclusions without advising the reader of the method by which they were reached.

The first volume embraces the subject of tort. The author traces the affinity of various wrongs from the early violent trespass down to the latest development of injuries. In taking "violent trespass as a starting-point, Mr. Street has adopted a sequence much more in keeping with historical revelation than that followed by many other writers. The author is to be highly commended in treating negligence, not as a specific wrong, but, like fraud or malice, as a mere factor playing an important part in large groups of wrongs. This has compelled the adoption of new nomenclature in the division of the so-called "torts of negligence." The author meets this difficulty very satisfactorily by dividing them into "primary and secondary trespass formations." While this may be thought to be a mere matter of terms, it represents an advance in legal knowledge, in that it makes possible the assignment of the conception of negligence to its proper place in legal theory. The principles of "intervening cause and "successive negligent acts are not well handled and are even more inadequate than any limitation in space should have made necessary. The brevity of the general treatment is apparent when it is observed that only about two pages are devoted respectively to such subjects as "res ipsa loquitur" and " proximate cause." 66 Assumption of risk "and the "fellow servant doctrine together cover only ten pages. In the preface Mr. Street claims to have "somewhat happily hit upon the term 'disseisin of chattels’" as expressive of the fundamental idea in conversion. This claim of the author is somewhat surprising in view of the fact that "Disseisin of Chattels " was the subject of three articles by Dean Ames in 3 HARVARD LAW REVIEW (1889), in which the propriety and advantage of the use of this expression were conclusively demonstrated. The value of the first volume is increased by the citation in the text of many concrete cases, which unfortunately are found wanting in the other volumes. These cases are well selected, and are readily distinguishable from the text by being printed in smaller type.

In the second volume the author discusses the subject of contract. While we do not agree with many of the views expressed, for example, in regard to the nature of the bilateral contract, still it must be said that the book presents an up-to-date exposition of fundamental principles. In an appendix is found the text of the Negotiable Instruments Law, with some comments by the author, and an incomplete collection of the cases decided under the law. This appendix, occupying some fifty pages, is somewhat out of keeping with the spirit of the balance of the work, and is inferior in practical value to the various special books on the subject.

The third volume embraces an essay on the natural history of remedial law and brief discussions of the various common law actions. The author has not attempted to give the whole law, or even an imposing part of the law, pertaining to those subjects, but does present a consistent account of the origin, evolution and ultimate scope of the various remedies.

The work carries within it conclusive evidence of thorough investigation on the part of the author. Much of it shows original thought. The author has had the courage to overstep the traditional jealousy of the law as to many forms of expression. The vocabulary takes a freer range than is usually found in legal books, adding to the interest and often to the accuracy of the work. To the busy lawyer, immersed in exhaustive treatises on special subjects, who finds himself losing his grasp upon the true relationship existing between those subjects, this work will give entertainment and stimulus in the study of the law. In the citations there will be found to be a dearth of modern decisions, espe

cially from the courts of this country. This is unfortunate, for the work could have been made more practical in this respect, without in any way changing its spirit or scope. The indexing is fair, and the work of the publishers is

excellent.

J. M. B., JR.

STUDIES IN AMERICAN JURISPRUDENCE. By T. F. C. Demarest. New York: The Banks Law Publishing Company. 1906. pp. iv, 414. 8vo. The essays in this volume are mainly reprints of occasional articles contributed to legal periodicals. They represent two distinct classes. Those of one kind, which relate to historical or philosophical questions, are written in a form so broken by parenthetical clauses and so full of self-conscious phrasing that only the most careful reading will disclose the meaning. Once reached, the ideas are interesting because they show that at least one point of view has been consistently and independently examined. The other and more readable class of the articles, though these also demand close attention, is composed of monographs comparing important legal decisions in their bearing on certain narrow points of law. Three of the essays, occupying nearly two-thirds of the text, relate to the legal problems arising from the use of city streets by railroads. These are perhaps the clearest in the book, showing a commendable freshness of treatment and ability to discard immaterial details. The work suffers, however, from the author's failure to make clear to the reader, as he progresses, the outline or plan of argument.

From its broad and general title one might expect in the volume a comparison of co-ordinate parts of our law or a discussion of salient institutions or fundamental principles. That expectation will be disappointed. The book deserves its title just as much—and as little — as would a collection of opinions on various points in American law. The principal reason for using so general a title seems to be that nothing less inclusive would apply to the extremely diverse subjects which have been brought together. By reason of this scattering character of the topics the present collection seems no more likely to suit the convenience of any one group of readers - except perhaps those interested in the rights of abutting owners in street railway cases than the periodicals in which they may already be found.

R. N. M.

THE ACT TO REGULATE COMMERCE (as Amended), and Acts Supplementary thereto Indexed, Digested and Annotated, including the Carriers' Liability Act, Safety Appliance Acts, Act Requiring Reports of Accidents, Arbitration Act, Sherman Anti-Trust Act, and others. By C. S. Hamlin. Boston: Little, Brown and Company. 1907. pp. 480. Svo.

Of the making of books on the interstate commerce laws there is no end. Mr. Hamlin's book provides a mechanical convenience for time-pressed lawyers, at least, we are inclined to think that will be its only utility. The first part of the book prints the full text of the various statutes that form the body of the interstate commerce legislation, using, so far as available, the text of the Interstate Commerce Commission compilation of June 30, 1906, and indicating by brackets and marginal annotations the various textual changes. The second half, which forms the bulk of the book, contains an index-digest of the following acts of "special interest and importance to shippers and carriers": the Interstate Commerce Act of 1887 and its amendments, including the Rate Bill of 1906: the act relating to testimony before the Interstate Commerce Commission; the immunity statute of 1906 called forth by Judge Humphrey's decision in the Armour case; the Elkins Act; the act to expedite hearings, and the Joint Resolution of June 30, 1906, postponing the operation of the Rate Bill. This index-digest consists of an alphabetical list of the "leading" words and phrases found in the foregoing acts, with a "concise digest of the text relating to the respective words and phrases," and a reference, by page and line, where the words may be found. The same method is pursued with the various other acts.

By a cross-reference to all the digests a word may thus be traced, and its use compared in all these laws which are, more or less, in pari materia. Use alone can establish the accuracy and exhaustiveness of this compendium, but the surface indications sufficiently invite confidence. So far as it goes, the book is worth while as a handy collection of much-thumbed laws. Had it been supplemented, however, by the judicial construction thus far placed on the leading words and phrases, the book would have been much more serviceable.

F. F.

ELEMENTS OF LAW, considered with reference to Principles of General
Jurisprudence. By William Markby. Sixth Edition.
Sixth Edition. Oxford: At the
Clarendon Press. 1905. pp. xii, 436. 8vo.

In the preface to the fifth edition of his classic treatise on the Elements of Law, Sir William Markby wrote: "English lawyers have always preferred authority to principles; and they seem to regard principles with something like suspicion. Still I would advise students to make some attempt to discover principles: and this book is an imperfect endeavor to assist them in doing so." It is needless to say at this date that the learned author has given great assistance to students. The fact that six editions of this work have been called for is proof in itself of its worth. It would be of great advantage in the development of English law if more works of this character would be written to influence English and American lawyers to appreciate the value of principles in the making of sound authority.

This work has been in practically the same form since the third edition. The section numbers are the same, and the book has not expanded in size. As the author himself states, this edition is largely identical with the last. Some slight changes have been made in the sections dealing with the subject of "sovereignty.' Section 16 of the fifth edition is omitted, and section 16a of that edition becomes section 16 of this; section 176 of the fifth edition becomes section 17e of this edition, and sections 176, 17c, 17d are new matter. In these new sections, Sir William Markby points out that in international law the word "sovereignty" is not used in the precise sense attributed to it by Austin, nor has Austin's conception of sovereignty anything to do with politics. "It sometimes suits politicians," he says, "to use language of a very vague kind, as when they speak of sovereignty of the people.' Such a phrase has no legal significance.'

The changes in this edition are so slight that those who possess copies of the next earlier edition will not need to add this to their library; but the work itself is, of course, of such great intrinsic merit that it is well worth possession by those who do not already own it.

S. H. E. F.

HISTORY OF ROMAN PRIVATE Law.

By E. C. Clark. Part I. Sources. Cambridge: At the University Press. New York: G. P. Putnam's Sons. 1906. pp. 168.

12mo.

POLITICS AND DISEASE. By A. Goff and J. H. Levy. London: P. S. King & Son. 1906. pp. 291. 8vo.

12mo.

ART OF ADVOCATES AND PUBLIC SPEAKING. By J. W. Donovan. Rochester,
N. Y. Williamson Law Book Company. 1905. pp. 145.
:
THE PHILOSOPHY OF PROOF. By J. R. Gulson. London: George Routledge &
Sons. New York: E. P. Dutton & Company. 1905. pp. xv, 496. 8vo.
THE PRISONER AT THE BAR. By Arthur Train. New York: Charles
Scribner's Sons. 1906. pp. xiv, 349. 8vo.

REPORT OF THE TWENTY-NINTH ANNUAL MEETING OF THE AMERICAN BAR ASSOCIATION. Philadelphia: Dando Printing and Publishing Company. 1906. pp. 836. 8vo.

FOIBLES OF THE BAR. By Henry S. Wilcox. Chicago: Legal Literature Company. 1906. pp. 163. 【2mo.