a third unnamed species with characteristics of each of the other two; he chooses the first view after elaborately examining the arguments for each. This fundamental question settled, he minutely reviews the formation of this contract of lease, the mutual rights and duties of lessor and lessee, the effects of the contract as to third parties, its duration and the changes that may be caused by events. A well-analyzed table of contents and an index make the use of the little volume very easy, and there is a bibliography of English, French, German, and Italian works on the subject treated.

W. C. G.

THE FIRST YEAR OF ROMAN LAW. By Fernand Bernard. Translated by Charles P. Sherman. New York: Oxford University Press, American Branch. 1906. pp. xiii, 326. 12mo.

THE FOUNDATIONS OF LEGAL LIABILITY. A Presentation of the Theory and Development of the Common Law. By Thomas Atkins Street. In three volumes. Volume I, Theory and Principles of Tort; Volume II, History and Theory of English Contract Law; Volume III, Common Law Actions. Northport, N. Y. : Edward Thompson Company. 1906. pp. xxix, 500; xviii, 559; xi, 572. Svo. MODERN BUSINESS CORPORATIONS, including the Organization and Management of Private Corporations, with Financial Principles and Practices, etc. By William Allen Wood. Forms of Procedure illustrative of the Formation, Organization, Operation and Consolidation of Corporations, written or selected by Louis B. Ewbank. Indianapolis: The Bobbs-Merrill Company. 1906. pp. xi, 358. 8vo.

A DIGEST OF ENGLISH CIVIL LAW. By Edward Jenks, W. M. Geldart, R. W. Lee, W. S. Holdsworth, and J. C. Miles. In five books. Book II, Part I, by R. W. Lee. Boston: The Boston Book Company. 1906. pp.

xxii, 85-158, (25). 8vo. STUDIES IN CONSTITUTIONAL LAW. DUE PROCESS OF LAW UNDER THE FEDERAL CONSTITUTION. By Lucius Polk McGehee. Northport, N. Y. : Edward Thompson Company. 1906. Pp. x, 451. 8vo.

THE GRAND JURY, Considered from an Historical, Political, and Legal Stand. point, and the Law and Practice Relating Thereto. By George J. Edwards, Jr. Philadelphia: George T. Bisel Company. 1906. pp. lxxix, 219. 8vo. THE PUBLICATIONS OF THE SELDEN SOCIETY. Volume XXI. For the year 1906. Borough Customs. Volume II. Edited for the Selden Society by Mary Bateson. London: Bernard Quaritch. 1906. pp. clxx, 242. 4to. PROCEEDINGS OF THE AMERICAN POLITICAL SCIENCE ASSOCIATION, at its Second Annual Meeting, held at Baltimore, Md., December 26 to 29, 1905. Lancaster, Pa.: Wickersham Press. 1906. pp. 232. 8vo. REPORT OF THE TWENTY-EIGHTH ANNUAL MEETING OF THE AMERICAN BAR ASSOCIATION, held at Narragansett Pier, Rhode Island, August 23, 24, and 25, 1905. Philadelphia: Dando Printing and Publishing Company. 1955. pp. 968. 8vo.

REPORT OF THE COMMISSIONER OF EDUCATION for the year ending June 30, 1904. Volume II. Washington: Government Printing Office. 1906.

pp. vii, 1177-2480. 8vo. ROMAN WATER LAW. Translated from the Pandects of Justinian by Eugene F. Ware. St. Paul: West Publishing Company. 1905. pp. 160. 8vo. AMERICAN PUBLIC PROBLEMS. Edited by Ralph Curtis Ringwalt. IMMIGRATION, and its Effects upon the United States. By Prescott F. Hall. New York: Henry Holt and Company. 1906. pp. xiii, 393. 8vo.

IN

N one case only, in the absence of a statute imposing upon the master the duty of affording the servant some particular protection, could the servant, before the passage of the Employers' Liability Act of 1880, recover if he knew of the condition which the master's negligence had created. This was where the servant had complained to the master and had received a promise that the defect should be repaired. Cockburn, C. J., in Clark v. Holmes,2 says: "The danger contemplated on entering into the contract shall not be aggravated by any omission on the part of the master to keep the machinery in the condition in which, from the terms of the contract or the nature of the employment, the servant had a right to expect that it would be kept. There is a sound distinction. between the case of a servant knowingly entering upon a contract to work on defective machinery, and of one who, on a temporary defect arising, is induced by the master to continue to perform his service on a promise that the defect shall be remedied. In the latter case the servant by no means waives his right to hold the master responsible for any injury which may occur from the omission of the master to fulfil his obligation." And Byles, J., says: "The original contract was to work with fenced machinery, and it

1 Continued from 20 HARV. L. REV. 34.

2 7 H. & N. 937. There was, in fact, a statute requiring the machinery to be fenced. Cockburn, C. J., however, thought it unimportant to determine" whether the duty exists by virtue of a statute or at common law." While Bowen, L. J., cites it as author. ity for the proposition that where a statutory duty exists, the plaintiff's mere knowledge of its violation is no bar to recovery, the case had been usually treated as authority only on the point stated in the text.

was his master and not he who violated the condition and in so doing exercised a species of compulsion over the servant." The duty of the master herein stated to take care to prevent the plant from deteriorating from the condition in which it obviously was at the time the servant entered into it was one well recognized in the earlier cases.1

The case of Clark v. Holmes was therefore novel only in this, that it regarded the promise of repair as removing from the servant the bar to recovery which his knowledge would otherwise have presented. While this case has been followed with practical unanimity by all American jurisdictions, it was disregarded in Scotland in Crichton v. Keir,2 where it was decided that a servant having been induced to continue in an employment by a promise of a young and efficient horse in the place of an old and inefficient one, could not recover for injuries received by continuing to work with the old horse, pending the performance of the master's promise. "A servant who in the face of manifest danger chooses to go on with his work, does so at his own risk and not at the risk of his master.' "3

On the whole the decision of the Scottish court would seem to be in absolute conformity with the spirit of the earlier English cases. It would seem to be impossible to distinguish on principle between the case where a servant with knowledge that the master had permitted the plant to get out of repair had continued to serve after complaint in fear of dismissal, and the case where he had been induced to continue serving because of a promise to repair. It is quite clear that the servant does not seek to recover upon the theory that the master's promise to repair amounts to a contract to do so, nor in Clark v. Holmes is the action founded upon the breach of such a contract. The same effect is given to a promise to repair whether made by the master himself, and therefore one which would bind him, or made by a subordinate who has no such authority; nor is it necessary that the promise has been made to the plaintiff himself if he actually knows that such promise has been made. The theory upon which the servant is debarred from recovery if he continues to work with obviously defective

1 And it is stated by Lord Cranworth in Bartonshill Co. v. Reid, 3 Macq. H. L. Cas. 266, and is recognized by Kelly, C. B., in Murphy v. Phillips, 35 L. T. (N. s.) 477. 2 McPh. 407.

3 Lord Justice Clark Inglis. This case was followed in Frazer v. Hood, 15 Rettie 158, and in Wilson v. Boyle, 17 Rettie 62.

4 216 Ill. 624.

tools is that, he being free to remain or leave, his relation to the master is purely voluntary, and therefore one which he has no legal right to continue in. The master therefore can annex to its continuance, as he could to its creation, whatever conditions he pleases. The master's promise neither coerces him into remaining in the position nor deceives him as to the conditions under which the work is to be performed. He knows that the tool is dangerously defective. He is willing to work with it temporarily and until it can be repaired; but whether there is a promise of repair or not, he is fully cognizant of the risks of an existing defect, and is willing to undergo them rather than lose his place. The fact that the risk is temporary and not permanent may render his act more prudent, but it cannot make it any the less voluntary. It may be perhaps true that a servant may be willing to run a temporary risk rather than lose a permanent job, but in the end the inducing cause which leads him to accept the risk is the desire to retain his employment. The quantity of pressure therefore may be less, but the pressure is of the same sort, and is not one proceeding from the master, but from the servant's own necessities and desires. If, on the contrary, the contract of employment is regarded as giving the servant a right as against his master to remain in his employment, it would follow that even though the master did not promise to repair he should not be allowed to put the servant to the alternative of abandoning his right to serve, or running a risk therein due to the master's failure to perform his obligation. The case in reality represents a reaction against the rigor of the rule that a servant takes the risk of all known defects. The master has intended the servant to remain; that he offered inducements to do so shows that it was to his advantage; it would seem repugnant to natural justice to regard the servant as acting of his own independent volition and at his own risk because he yielded to the master's request. It would seem, therefore, that the conception of the court that the servant shall not thereby assume the risk incident to such action is, on the whole, just and fair, though perhaps not to be justified by any strict analysis of the principles applicable to this class of cases.

Save when such promise to repair was given, the servant's knowledge of the defect negatived at common law the existence of any duty on the master's part in relation to it. So, in Griffith v. St. Katharine's Docks, the action, though brought after the

1 13 Q. B. D. 259 (1884).

Employers' Liability Act of 1880, was not founded upon it. It was decided that a declaration which failed to allege not merely that the master was negligent, but that the servant was ignorant of the danger thereby created, was fatally defective.

Upon the passage of the Employers' Liability Act of 18802 the question at once arose whether it had made the master liable to the workman for injuries received by reason of defective conditions in the machinery and plant which were known or obvious to the workman.3

1 Brett, M. R., and Bowen and Fry, L.JJ., affirmed the decision of Day and A. L. Smith, JJ., in 12 Q. B. D. 493, Brett, M. R., saying that this was decided many years ago in Priestly v. Fowler. The same principle had been uniformly announced in the intervening cases; so in Williams v. Clough, 3 H. & N. 258, it was decided that the declaration must allege the ignorance of the servant of the defect which injured him, and that the declaration in question did sufficiently allege this by stating that the plaintiff, "believing the ladder to be in good condition and not knowing the contrary," used it and was hurt. Lord Bramwell differed to the extent of holding that the declaration should have shown that the plaintiff had no means of discovering the defect. It is clear, however, that while the servant may be bound to take notice of plainly inherent risks in obvious physical conditions, he is not bound to notice those defects which only an inspection would disclose. R. R. Co. v. Swearingen, 196 U. S. 551; R. R. Co. v. McDade, 191 U. S. 564. In Vose v. R. R., 2 H. & N. 728, in the course of the argument (p. 732), the opinion of the court is plainly indicated that it must appear that the servant's ignorance of the defect is plainly alleged, or that the defect as described in the declaration must be one which indicates that the plaintiff could not have known of its condition, explaining Roberts v. Smith, 2 H. & N. 213, upon this ground. See also, to the same effect, Bramwell, B., in Dynen v. Leach, 26 L. J. Exch. 221.

2 The sections material to the present discussion are: section 1, providing in substance that "where personal injury is caused to a workman; by reason of any defect in the ways, works, machinery, or plant (subsection 1) . . . the workman shall have the same right of compensation and remedies against the employer as if the workman had not been a workman nor in the service of the employer "; subsection 5 and subsection 3 of section 2, "A workman shall not be entitled to compensation . . . where the workman knew of the defect . . . and failed within a reasonable time to give... information thereof to the employer . . . unless he knew that the employer. already knew of the said defect."

8 It would seem that the question of the servant's assumption of risk is about to be of great importance in the federal courts of the United States in consequence of the passage by Congress of the Act of June 11, 1906, Statutes of the 59th Congress, p. 232, which not only destroys the defense of fellow employment in suits by employees against railroads engaged in interstate commerce, but provides that the plaintiff's contributory negligence shall in all cases be left to the jury. However, since the servant's assumption of risk is recognized with practical unanimity as quite distinct from the defense of contributory negligence (Day, J., Choctaw R. R. v. McDade, 191 U. S. 64), it would appear that the servant may still be barred from recovery by knowledge, real or constructive, of the defective condition of the railroad's plant or premises to the same extent and in the same manner as before the passage of this act, which otherwise, but