Obrázky stránek

the fact that, if the mistake were known, no claim of title would be made, and too little upon the fact that in truth the claim is made. A convincing statement of the correct view may be found in French v. Pearce, 8 Conn. 439, and Seymour v. Carli, 31 Minn. 81.

PROPERTY TACKING OF ADVERSE POSSESSIONS. — Held, that where one encloses and occupies more land than is covered by the description in his deed, and sells by the same description to another, who enters into possession of all the land enclosed, the successive possessions may be tacked to make up the period required by the Statute of Limitations. Davock v. Nealon, 32 Atl. Rep. 675 (N. J.). See NOTES.

QUASI CONTRACTS-FALSE REPRESENTATIONS-SURVIVAL OF ACTION AGAINST EXECUTOR. Where a woman induces a man to marry her by falsely representing herself as a single woman, his only remedy is an action of tort for the personal injury, and no action will lie against her executor on the theory of a quasi contract. In re Payne's Appeal, 32 Atl. Rep. 948 (Conn.).

It is well settled that where a man falsely represents himself as unmarried, and thereby induces a woman to marry him, an action for deceit will not survive against his personal representative. Price v. Price, 75 N. Y. 244; Grimm v. Carr, 31 Pa. St. 533. Whether an action for services will survive on account of the unjust enrichment of the estate of the wrongdoer must be considered an open question. The Supreme Court of Massachusetts, influenced perhaps by the analogy of those cases in which it has been laid down that a disseisee cannot maintain a suit in assumpsit for mesne profits against a disseisor until he recovers the real estate by ejectment, has decided that a woman cannot sue an administrator to recover the value of services rendered to her husband's estate under the belief that she was his lawful wife, although this belief is solely induced by the husband's fraudulent misrepresentations. Cooper v. Cooper, 147 Mass. 370. The Connecticut court accepts this line of reasoning. The contrary view is maintained in Higgins v. Breen, 9 Mo. 497, and Fox v. Dawson, 8 Martin, 94. There would seem to be small difficulty on principle in allowing a recovery to the extent to which the estate of the tortfeasor has been benefited. The fraud of the deceased has caused the ignorance of the facts, and if the injured party chooses to ignore the personal injury and sue for the unjust enrichment, he should be allowed to do so. Keener on Quasi Contracts, p. 321 et seq.

SALES FACTORS ACTS.- Held, that the word "sale" in Massachusetts Factors Act does not include a completed sale, and that where there is larceny there can be no "intrusting" within the meaning of the act. Prentice Co. v. Page, 41 N, E. Rep. 279 (Mass.). See NOTES.

SALES-WHEN TITLE PASSES.-C., a hotel proprietor, ordered of plaintiff two settees to be manufactured by the latter; when finished plaintiff delivered them to C. There was no agreement as to the time of payment. C. before paying plaintiff sold to defendant, and plaintiff brought replevin against defendant. The presiding justice in his instructions practically directed a verdict for plaintiff. Defendant brings exceptions. Held, sustaining exceptions, that the presumption is that the parties intended to make payment and delivery concurrent conditions. If vendor waives the condition of payment, title vests in the vendee; delivery without payment is evidence of a waiver, and it should be left to he jury whether there was such a waiver. Geo. W. Merrill Furniture Co. v. Hill, 32 Atl. Rep. 712 (Me.).

The decision itself is undoubtedly correct, but the language of the court is, to say the least, loose. The error is in regarding the payment as presumably a condition precedent to the passing of title, when it is only a condition precedent to delivery, and a waiver of it has no effect on title. In case of goods to be manufactured, presumably title passes upon appropriation and acceptance. Wilkins v. Bromhead, 6 M. & G. 963; Smith v. Edwards, 156 Mass. 221. Some authorities seem to say that title passes as soon as the things is finished. Goddard v. Binney, 115 Mass. 450; 2 Kent's Comm. *504. A condition may go either to title or to delivery, but even where it goes to title, if the goods are put into the hands of the buyer, it seems a sound doctrine that there is presumably a waiver of the condition, Upton v. Sturbridge Cotton Mills, 111 Mass. 446; Haskins v. Warren, 115 Mass. 514; Comer v. Cunningham, 77 N. Y. 391. The doctrine that in a cash sale presumably title does not pass till cash is paid, Paul v. Reed, 52 N. H. 136. (a doctrine denied by Blackburn so far as mercantile transactions go,) is generally applied where the contract is for the sale of specific goods, rather than of goods to be manufactured.

TORIS DEATH BY WRONGFUL ACT-CONTRIBUTORY NEGLIGENCE OF SOLE BENEFICIARY.- Held, that where a father sues as administrator to recover for death

of child, and he is sole beneficiary, his contributory_negligence is a good defence. Bamberger v. Citizens' St. R.Co., 31 S. W. Rep. 163 (Tenn.). See NOTES.

TORTS UNFAIR COMPETITION - FRAUDULENT SIMULATION.- Declaration that defendant in adopting a particular style of wrapper and in labelling his wares "Thedford & Co.'s Black Draught, "intended to and did trick the public into buying defendant's medicine in the belief that they were purchasing a medicine of plaintiff's manufacture which was put on the market in similar wrappers, and labelled "Thedford's Black Draught. Defendant demurred. Held, overruling the demurrer, a plaintiff has a right of action against a defendant who intentionally tricks plaintiff's customers into buying defendant's wares in the belief that they are of plaintiff's manufacture. Thedford Medicine Co. v. Curry, 22 S. E. Rep. 661 (Ga. ).

The principle here applied is not a new one, nor even a new application of an old principle. It is the same principle and the same application of it by virtue of which the common law protected the use of trademarks before their use was protected by statute. Lord Blackburn in Manufacturing Co. v. Loog, Appeal Cases, 15, at 29, 30. Plaintiff's right which defendant has violated is not a right to the exclusive use of a particular name or a particular kind of wrapper for his wares; "his right is to be protected against fraud, and fraud may be practised against him by means of a name, though the person practising it may have a perfect right to use that name provided he does not accompany the use of it with such other circumstances as to effect a fraud upon others. Lord Langdale in Croft v. Day, 7 Beav. 84, at 88. This principle and its application to cases not distinguishable from the principal case are well established in England and America. Perry v. Truefett, 6 Beav. 66; Blofield v. Payne, 4 Barn, & Ad. 410; Sykes v. Sykes, 3 B. & C. 541; Lee v. Haley, 5 Ch. Appeals, 155; Stone v. Carlan, 13 Law Reporter, 360; Nail Co. v. Bennett, 43 Fed. Rep. 800; Manufacturing Co. v. Manufacturing Co., 138 U. S. 537, at 549. See also 4 HARVARD LAW REVIEW, 321; 5 HARVARD LAW REVIEW, 139.

[ocr errors]


THE MIRROR OF JUSTICES. Edited for the Selden Society by William Joseph Whittaker, with an Introduction by Frederic William Maitland. London, 1895.

The chief value of this publication is the proof it gives that the "Mirror" is valueless. This book had been freely cited by Coke and other lawyers of the sixteenth and seventeenth centuries; and Judge Gray not long ago considered at length an extract from it in the very important case of Briggs v. Light Boats, 11 All. 157. It is therefore well worth while to have its unreliability established; and that this is done will appear from the following statements in the Introduction: "Our author's hand is free, and he is quite able to do his lying for himself, without any aid from Geoffrey of Monmouth or any other liar. He will not merely invent laws, but he will invent legislators also; for who else has told us of the statutes of Thurmod and Leuthfred? The right to lie he exercises unblushingly. . . . Religion, morality, law, these are for him all one; they are for him law. . . . That he deliberately stated as law what he knew was not law, if by law we mean the settled doctrines of the King's court, will be sufficiently obvious to any one who knows anything of the plea rolls of the thirteenth century. . . . One word is wanted to make this true; the word 'not.' Our author knows that as well as we know it." All this is as true as it is vigorous, and it is evident that a book of which such things can be said is not one to be rashly used as authority.

It is not true, however, that the whole book is false. The greater part of it probably is sound, and some important statements of law for which there is no other direct authority are no doubt true. But it would require more labor to separate true from false than the result would be worth. With most of the old rolls and the Year Books for the whole reign of Richard II. yet to be published, students of legal history can devote their time to more profitable studies than that of the Mirror.

Professor Maitland gives much space to a consideration of the authorship of the treatise, and is inclined on the whole to acquit Andrew Horn, though not without grave doubt. His conjecture is that some young man, at a time when a great judicial scandal had just come to light, wrote this as a serio-comic attack on judges in general, and laughed in his sleeve at the result. "We guess that he wanted his readers to believe some things that he said. We can hardly suppose him hoping that they would believe all. We feel sure that in Paradise, or wherever else he may be, he was pleasantly surprised when Coke repeated his fictions as gospel truth, and erudite men spoke of him in the same breath with Glanvill and Bracton. That is just what he wished. "

One more guess will do no harm; and though not so diverting as this, and more commonplace, it is at least possible. The great unevenness of the book is apparent; part is true, part is grossly false. Professor Maitland points out also the contradiction between different passages. Now the author writes as a cleric, now as a layman; now as a supporter of the King, now of the nobles; now as a Londoner, now as one opposed to the franchises of the city. May it not be that some young man of more zeal than knowledge got together from all possible sources such scraps of law as he could, and pieced them together? We may assume that such a youth had two or three notions, held with all the tenacity of ignorance, which appear as the two or three "leading motives" of the book. At this time, during the prosecution of the judges, all sorts of stories were of course flying about, such as nowadays would get into the newspapers; and the singular notions of law now often found among intelligent laymen must have been more common and more singular. These stories and notions would be grist for our young man's mill.

[ocr errors]

Whether we insist on our own guess or not, we must all agree that Professor Maitland's Introduction is a gem, as perfect in its way as his Introduction to Bracton's Note Book, and its way is most diverting. One reader, at least, thinks the want of value in the Mirror itself much more than compensated by the clever comments to which it has given rise. We could better spare a much better book than the Mirror with this bright appurtenance.

J. H. B.

THE CONSTITUTION OF THE UNITED STATES AT THE END OF THE FIRST CENTURY. By George S. Boutwell. Boston, U. S. A.: D. C. Heath & Co. 1895. pp. xviii, 412. Small 8vo. cloth, $3.50. "An examination of the authorities," says Governor Boutwell, "justifies and renders unavoidable the conclusion that the Constitution of the United States in its principles and in its main features is no longer the subject of controversy, of debate, or of doubt. " "This is the only book," say his publishers in their accompanying circular, "in which the line between State sovereignty and the national supremacy of the government is marked distinctly.' These two quotations show better the tone

of the work than more extended criticism could. The contents consist of three parts. The first third of the book contains annotated texts from the Declaration of Independence through to a thoroughly indexed text of the Constitution, with the references to decisions inserted immediately after each clause. Next follows a short essay on the "Origin and Progress of Independence," the general texts for which are perhaps found in the statements on page 148, that "for one hundred and thirty years" up to 1763"the supremacy of Parliament had been denied whenever the claim was presented," and on page 149, that in this state of affairs "the only ground of hope was in negotiation, and that appears not to have been thought of" by England. Then a digest of decisions and comment completes the book. It is printed in the ordinary type of the text, instead of in the irritatingly fine print usually found in digests. It is also very conveniently arranged for reference under the Articles and clauses of the Constitution and other texts. This should make the book of service in hasty search for decisions upon special phrases of the Constitution.

R. W. H.

THE RELIGION OF THE REPUBLIC AND LAWS OF RELIGIOUS CORPORATIONS. By Alpha J. Kynett, D.D., LL.D. Cincinnati: Cranston & Curts. New York: Hunt & Eaton. 1895. 8vo, pp. xxiii, 852. The first part of the book is contributed directly by the author, and deals principally with the "American Civil Structure" and "Religion in the Republic." One might complain of the tendency in places to pulpit rhetoric in the treatment of these topics. At times, too, the discussion is marked by defects characteristic of most attempts to deal with large subjects in outline. One fails, for instance, from the summary of the colonial history of Virginia (page 32) to grasp the author's idea of the character of the Virginian colonists. This portion of the book is, however, an interesting contribution toward solving the somewhat perplexing relation of church and religion to our political forms of government. As a matter of law, exception may be taken to the inadequate definition of corporation (page 110) as a creature of law having certain of the rights, powers, and duties of a natural person"; and according to the index, there is no allusion to the question of the enforceability of voluntary subscriptions for religious purposes. A collection of statutes of every State dealing with religious corporations forms the second part of the book, and has been prepared by the author's legal assistants. It is of value to all who have to do with church property. The work is carefully revised from the edition of 1886, and brought thoroughly up to date. Notes of judicial decisions interpreting the statutes are given wherever it is possible.


E. R. C.

THE AMERICAN DIGEST. ANNUAL. 1895. (Sept. 1, 1894, to Aug. 31, 1895). Prepared by the Editorial Staff of the National Reporter System. St. Paul, Minn.: West Publishing Co. 1895.

All the American cases of the past year are included in this volume, and they are some twenty thousand in number. The work is admirably indexed, and has the good quality of being a little less bulky than some of its predecessors, while accomplishing equally good results.

R. G. D.

THE RIGHT TO TAKE WATER FROM STREAMS AND LAKES FOR PUBLIC WATER SUPPLY. By R. G. Brown of the Minneapolis Bar. Pres of F. W. Shepherd, New York. 1895. pp. 15.

This is a paper which was read before the last convention of the American Water Works Association. It is not an argument, but simply a statement of established principles, with the reasons which gave rise to them. The writer deduces a general rule, which is amply supported by his citations of all the leading cases on the subject in the United States. The essay is in fact a handy digest of the subject.

H. C. L.

« PředchozíPokračovat »