II. BOOK REVIEWS.

CASES ON QUASI-CONTRACTS, Edited with notes and references. By James Brown Scott. New York: Baker, Voorhis, and Company. 1905. pp. xvi, 772. 8vo.

Professor Scott's object in making this book was to provide a case book of moderate size for the use of students. The bulk of Judge Keener's case book, including, as it frequently does, many cases reprinted in full, illustrative of the same application of a legal principle, makes it an unsatisfactory book for the use of students in a half course. Professor Woodruff's book, by an odd coincidence, appeared almost simultaneously with the work under review.

By condensation of some cases and by the selection of short cases, wherever this was possible, Professor Scott has adequately covered at least as much ground as Judge Keener did. As the publishers of the new book were the owners of the copyright of the older work and placed it at the disposal of Professor Scott, he might fairly have made much larger use of it than he has done. Though many cases in the two books are identical, the large majority are not, and the new cases are well selected. The notes greatly add to the value of the work, and the editor has used his learning in the Civil Law to furnish the book with illustrations from that source. In this way he has shown not only the antiquity, but the inherent propriety of treating quasi-contracts as a separate department of the law. The syllabus index is an excellent piece of work, the more meritorious because many case books are without such aid to the reader. The book gives rise to a suggestion, not a criticism, which concerns the making of case books generally and which involves a question upon which opinions will doubtless differ. In the division of the law into various topics, it is impossible that each topic should wholly exclude every other. Consequently not only do treatises on one subject in fact deal with many matters which are also dealt with by treatises on other subjects, but completeness of treatment can be obtained in no other way. We wish to raise the question whether it is desirable to make case books upon the same plan. Case books are used only for the instruction of students. They do not and never can take the place in professional use which treatises occupy. The utility of the plan of a case book for instruction in a law school must be the governing consideration. Is it desirable, then, to include such matters as general average and contribution between sureties in a case book on quasi-contracts? Both topics present instances of quasi-contractual obligations, but are not the places for the student to consider them courses on admiralty and suretyship? Professor Scott disclaims any treatment of these topics beyond what is essential to show the quasi-contractual nature of the obligation; but is it possible to take up satisfactorily with students a number of cases on contribution between sureties, without going into the matter at large, in the same way as would be done in a course on suretyship? It may be urged that this may well be done both in a course on suretyship and in one on quasi-contracts, and that the student will gain from approaching the matter on several sides. Doubtless there are some questions of legal theory so fundamental that they must arise in more than one course, but, where possible, does not the great pressure for time in our legal courses require that duplication of work should be avoided? If so, the author of a case book should not endeavor to touch upon every matter logically within its title, but should deal with such matters only as belong to that title exclusively or more naturally than to any other. Such matters as are included should be dealt with thoroughly, for students cannot satisfactorily study from cases a single aspect of a subject or of a decision.

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A related question may be raised in regard to arrangement. Professor Scott follows Judge Keener in making such introductory headings as Wherein quasi-contract differs from a pure contract," and Wherein quasi-contract differs from a tort." These are appropriate headings for a treatise, and under them an author would properly consider one aspect of decisions most of

which would be cited elsewhere in the book for the point primarily decided by them. But teacher and student dealing with cases must generally deal with them once for all. The minute subdivision of a treatise cannot, therefore, be satisfactorily used as a model. The cases must be grouped according to their most general and obvious effect, and subordinate matters must be brought out in passing. The time when the student of Professor Scott's book might fairly be asked wherein a quasi-contract differs from a pure contract or a tort, is at the close of the book, for most of the cases in it in some degree aid in the answer, rather than after reading the sections specifically devoted to these questions.

We have taken the occasion afforded by the appearance of Professor Scott's book to suggest an inquiry we have had for some time in mind. In so doing we fully recognize, and wish to make it clear, that more than one answer to the inquiry will find champions and that even where the views here suggested are accepted, the application of them will give rise to new difference of opinion. Each instructor must to some extent follow his own idiosyncrasies, whatever book he may use. Professor Scott has furnished abundant and well selected material, carefully edited and annotated. This is the one essential requisite, and it is fully satisfied.

S. W.

THE LAW OF BAILMENTS, INCLUDING PLEDGE, INNKEEPERS AND CARRIERS. By James Schouler. Boston Little, Brown, and Company. 1905. pp. xxxii, 415. 8vo.

This book, which is based upon a larger work by Professor Schouler, might better have been named Carriers, including Bailments, for more than two thirds of the work is devoted to a discussion of the peculiar law governing carriers, not only as bailees of goods but as transporters of passengers. The one third concerned with the treatment of the general law of Bailments serves as an introduction enabling the author to give up the balance of the book to a consideration of those features of the law of Carriers which are sui generis.

The principles of the law of Carriers are fairly well settled, and are comparatively simple. The recent decisions seldom give more than the application of the old saws to the modern instances. Beyond question the author has, generally speaking, stated both the principle and the precept; the defects of the book are in the manner of presentation.

Taking the volume as a whole, its dominant characteristic is carelessness. Carelessness marks the index, the heading of paragraphs, the rhetoric, and even the distinctions taken. We are told in the preface that "the main purpose of this volume is to supply students and the professional lawyer alike with an elementary treatise which may serve for study and practical use." Yet its contents are so inadequately and so unscientifically indexed as to reduce the practical value of the book to the professional lawyer to a minimum. For example, one can find "stoppage in transitu" only by turning to the head "CARRIERS, COMMON (or PUBLIC) then to the subhead, "termination of carrier's responsibility" (p. 409); and then to the sixth line under this subhead, which reads, "doubt; care of'; misdirection; stoppage in transitu, 397, 398." And this is but one of many cases of needles in the haystack.

The first few words of the opening sentence of each paragraph are printed in bold-faced type, an expedient which, in many instances, fails altogether to indicate the substance of the paragraph. Thus a paragraph which informs us that canal companies, tug-boats, and log-drivers are not common carriers because they do not control the transporting vehicle is headed, "But here, as elsewhere, the employment to be designated” (p. 152). See also paragraph 261, p. 139. It is in his rhetoric, however, that the author is most remiss. Only a few sentences need be quoted to demonstrate the book's weakness in this respect. At page 128, in discussing the tests for determining the status of guest, the author says, Commonly the guest is a temporary sojourner who puts up at the inn to receive its customary lodging and entertainment; and so long as one keeps this transient character." And at page 133, § 309, "and for all acts of his servants. . . directly occasioning loss or injury, the innkeeper must still re

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spond. . . . But other risks may probably be guarded against, or a special valuation set, if reasonable, upon a closed receptacle." And at p. 151, "Nor is a stockyard company or other mere agistor or warehouseman for a carrier." These are merely conspicuous examples of the loose, careless construction which appears upon every page.

It is, moreover, questionable whether the distinctions taken by the author were all well considered. At page 121, "the three distinguishing characteristics of a public bailment vocation are pointed out to be, first, that a bailee in that vocation must serve all alike; second, that he is an insurer; and third, that, "by way of offset or limitation to these conditions, the bailee may always claim his reasonable recompense in advance." Is it not true, however, that payment in advance can be exacted by all bailees, and that all can, if they desire, serve on credit? Apropos of this it may be mentioned that the author does not specifically advert to what is often spoken of as one of the peculiar elements of the "public bailment vocation," namely, the duty of one in that vocation, within the limits of his public profession, to provide adequate facilities. This duty, however, is in a general way in special instances recognized in the book. See paragraphs 255, 256. In paragraph 232 it is stated that, "A boarding-house or lodging-house keeper, pursuing that means of livelihood, is again to be distinguished from a private householder who only casually or upon special consideration receives a boarder or lodger into the family." But paragraph 252 is to the effect that, "The innkeeper is an ordinary bailee where the vocation is not exercised towards the particular person and his personal property upon the strict innkeeping relation. And thus is it, also, in the usual business of boarding-houses and lodging-houses, by the better opinion, or with mere boarders and lodgers generally." See paragraph 239 for another unilluminating distinction.

It is cause for sincere regret that a writer, who undoubtedly knows his subject well, should have been so lax in his presentation of it.

C. M. O.

THE PRINCIPLES OF THE AMERICAN LAW OF CONTRACTS AT LAW AND IN EQUITY. Second edition. By John D. Lawson. St. Louis: The F. H. Thomas Law Book Company. 1905. pp. xxvi, 688. 8vo.

As the number of decisions multiplies most rapidly each year, and as the law is continually changing and expanding, a new text-book carrying the cases down to date is always welcome. In the law of Contracts it is doubly welcome because of the dearth of recent authoritative works. The old standard, Parsons on Contracts, has gone through so many editions that its unending sequence of editors' notes makes it now almost unusable. Aside from it, there is Professor Harriman's short work, of comparatively recent publication, and Page on Contracts, of the present year. The latter is a large treatise better adapted for exhaustive reference than to serve as a handbook. Professor Lawson's work, of which the first edition appeared in 1893, is a book adapted to the hasty examination of the busy lawyer. In this respect it resembles Professor Harriman's work, although its treatment is somewhat fuller.

As a whole the work is more easily praised than criticised; but attention may be directed to certain defects of statement and treatment. In § 29, under Formation of the Contract, in attempting to explain the rule by which a contract is held to be completed upon the mailing of the acceptance, the author adopts the erroneous suggestion often found in decisions, the fiction of the mail being the agent of the offerer. As a matter of fact, there is no ground of agency at all: the post-office is a governmental function, not the agent of anybody; and if it could be an agent, it would be the agent, not of the offerer, who does not hire it to bring the acceptance, but of the offeree, who pays the postage on the letter. So in § 253 the statement that a waiver does not require a consideration to be binding, seems too strong, as in general a waiver to be binding requires either a consideration or an estoppel. Again, the treatment of the subject of promises for the special benefit of a third person is open to criticism because of the

failure to distinguish between promises for the sole benefit of a third person and those cases where the primary object is to discharge an obligation of the promisee. See 15 HARV. L. REV. 767. So § 460, dealing with anticipatory breach, is objectionable in that it only gives one half the story, namely, the side in favor of the doctrine, when as a matter of fact there is strong support for the opposing view. See the collection of cases 14 HARV. L. REV. 433, note 5. Apart from these defects of substance, a fault of form which detracts from the general excellence of the book, is the number of typographical errors scattered throughout it. A few mistakes of this kind may be overlooked, but a work which displays more than its share suggests an almost unpardonable negligence in proofreading.

On the other hand, to point out some of the salient points of excellence, the author's treatment of the Statute of Frauds is admirably concise and accurate. In §§ 128-160 his dealing with the law of persons in its relation to contracts is clear and thorough. So his discussion of the law as applied to wagering contracts and contracts of insurance is good. The arrangement of the book, which is closely allied to that adopted by Page, makes a commendably logical presentation of the subject, treating first of the various essentials to the formation of a contract, and then of the legal and equitable remedies available when the contract relation has been established. G. H. F., JR.

A MANUAL RELATING TO THE FORMATION AND MANAGEMENT OF MerCANTILE AND MANUFACTURING CORPORATIONS, with Forms. A Book of Massachusetts Law. By George F. Tucker. Second Edition, Revised, including Revised Laws, Statutes of 1903-1905, and Massachusetts Reports, Vol. 187. Boston: Little, Brown, and Company. 1905. pp. xxvii, 401. 8vo.

This book, as its title implies, is not a treatise, but a book for practical, everyday use by the practicing lawyer, the business man, the investor, or the corporation official who desires to know what the law is and how to act in a given situation. It is gratifying to be able to say that there is an adequate index, a convenience which is none too frequently provided, though indispensable in a book intended for constant use. The changes that have come about in corporation law since the appearance of the first edition, in 1887, make apparent the need for this new edition. Like others of Mr. Tucker's works, the present volume is a book of Massachusetts law; and while not so elaborate as Mr. Dill's work on the New Jersey corporation law, it is a book that will be distinctly serviceable to Massachusetts lawyers. The author has very wisely included forms, and wisely, too, has not set them apart in an appendix, but has worked them into their appropriate places in the text. To make the forms readily available, a separate index of them has been made.

The type, paper, and binding are excellent, but it would have been better to have subdivided the text more often, or to have indicated divisions by headings or spacing. There being no variation of type, and no spacing, it is difficult for the eye to find at once the particular reference obtained by use of the index.

S. H. E. F.

THE AMERICAN JUDICIARY. By Simeon E. Baldwin. New York: The Century Co. 1905. pp. xiii, 403. 8vo.

Within the compass of three hundred and eighty-five small pages, Judge Baldwin has succeeded in condensing a treatise upon the American judicial system. As the work was written for the American State Series, the purpose of which is to interest the general public and the elementary student by popular descriptions of our governmental organization, the author has not attempted to do more than state clearly the nature and structure of the judicial branch of the government. For this reason, the book contains little of profit to the advanced student or the lawyer.

AN ESSAY ON THE PRINCIPLES OF CIRCUMSTANTIAL EVIDENCE, illustrated by Numerous Cases. By the late William Wills. Edited by his son, Sir Alfred Wills. Fifth English Edition (1902). With American Notes by George E. Beers and Arthur L. Corbin. Boston, Mass.: The Book Company. 1905. pp. xii, 448. 8vo.

ELEMENTS OF LAW considered with reference to Principles of General Jurisprudence. By Sir William Markby. Sixth Edition. Oxford: At the Clarendon Press. London, New York, and Toronto: Henry Frowde. 1905. pp. xii, 436. 8vo.

FEDERAL SUPERVISION OF Insurance COMPANIES. An Address to the National Convention of State Insurance Commissioners, at Breton Woods,

N. H., Sept. 27, 1905. By Frederick H. Nash. Boston. 1905. pp. 28. HINTS FOR FORENSIC PRACTICE: A Monograph on Certain Rules Appertaining to the Subject of Judicial Proof. By Theodore F. C. Demarest. New York: The Banks Law Publishing Company. 1905. pp. x, 123. 12mo. LECTURES ON THE RELATION BETWEEN LAW AND PUBLIC OPINION IN ENGLAND DURING THE NINETEENTH CENTURY. By A. V. Dicey. London and New York: The Macmillan Company. 1905. pp. xx, 508. 8vo. THE CONSTITUTIONAL DECISIONS OF JOHN MARSHALL. Edited with an Introductory Essay, by Joseph P. Cotton, Jr. In two volumes. New York and London: G. P. Putnam's Sons. pp. xxxvi, 462; v, 464. 1905. 8vo. CONSIDERATIONS IN APPRAISING DAMAGE TO FOREST PROPERTY. By

B. E. Fernow. Reprinted from The Forest Quarterly for May, 1905.
Sewanee, Tennessee: The University Press. pp. 24. 8vo.

A SELECTION OF CASES ON DOMESTIC RELATIONS AND THE Law of Per-
SONS. By Edwin H. Woodruff. Second edition, enlarged. New York:
Baker, Voorhis, and Company. 1905. pp. xv, 620.
8vo.

A HISTORY OF ENGLISH PHILANTHROPY from the Dissolution of the Monasteries to the Taking of the First Census. By B. Kirkman Gray. London: P. S. King & Son. 1905. pp. xv, 302. 8vo.

THE GENERAL PRINCIPLES OF THE LAW OF CORPORATIONS.

(Being the Yorke Prize Essay for the Year 1902.) By C. T. Carr. Cambridge: At the University Press. 1905. pp. xiii, 211. 8vo.

THE PRINCIPLES OF THE AMERICAN LAW OF CONTRACTS at Law and in Equity. Second Edition. By John D. Lawson. St. Louis The F. H. Thomas Law Book Co. 1905. pp. xxvi, 688. 8vo.

THE REMINISCENCES OF SIR HENRY HAWKINS, BARON BRAMPTON. Edited by Richard Harris. London: Edward Arnold. New York: Longmans, Green & Co. 1905. pp. xi, 358. 8vo.

INTERFERENCE IN TRADE. A Collection of Cases on Strikes, Boycotts, etc., with Notes. By Wm. Draper Lewis. Philadelphia: International Printing Co. 1905. pp. 96. 8vo.

THE PRINCIPLES OF THE ADMINISTRATIVE LAW OF THE UNITED STATES. By Frank J. Goodnow. New York and London: G. P. Putnam's Sons. 1905. pp. xxvii, 480. 8vo.

STUDIES IN AUSTRALIAN CONSTITUTIONAL LAW. By H. Inglis Clark. Second Edition. Melbourne Charles F. Maxwell (G. Partridge & Co.). 1905. pp. xv, 447. 8vo.

A TREATISE ON EQUITABLE Remedies, in two volumes. By John Norton Pomeroy, Jr. Volume I. San Francisco: Bancroft Whitney Company. 1905. pp. xxx, 932. 8vo.

JURISPRUDENCE, LAW, AND ETHICS. PROFESSIONAL ETHICS. By Edgar B. Kinkead. New York: The Banks Law Publishing Company. 1905. pp. vii, 381.

NEW YORK STATE LIBRARY. YEARBOOK OF LEGISLATION 1904. Edited by Robert H. Whitten. Albany: New York State Education Department. 1905. 8vo. THE LAW OF FIRE INSURANCE. By George A. Clement. In two volumes. Volume II. New York: Baker, Voorhis, and Company. 1905. pp. cxvii,

807. 8vo.