LIMITATIONS UPON THE POWER OF ONE STATE TO EXCLUDE THE CORPORATIONS OF ANOTHER. Eugene F. Ware. 17 Green Bag 699. See NOTES, p. 291. OBLIGATION OF CONTRACT IN ITS RELATION TO THE U. S. CONSTITUTION.

Theodore F. C. Demarest. Discussing U. S. Const., Art. I. sec. 10, as a ground for the decision in Muhler v. New York, etc., R. R. Co., 197 U. S. 544. 67 Alb. L. J. 315. PACIFIC ISLAND LABORERS ACT, 1901 (No. 16 of 1901). B. A. Ross. Questioning the right of a country to deport laborers. 3 Commonwealth L. Rev. 3. POSITION OF A TRUSTEE IN BANKRUPTCY WITH REFERENCE TO INVALID TRANSFERS OR LIENS, THE. Ellicott D. Curtis. 5 Columbia L. Rev. 584.

REMARKS UPON CHARGING THE JURY IN A TRIAL FOR MURDER, SOME. Robert Ralston. Read before Pennsylvania Bar Association, 1905. 53 Am. L. Reg. 658.

109.

STATUTE OF USES AND THE Modern Deed, THE. John R. Rood. 4 Mich. L. Rev. STATUTES REGULATING MEDICAL PRACTICE. Lewis Hochheimer. Collecting the cases that discuss what constitutes the practice of medicine. 61 Cent. L. J. 424. WAR, ARBITRATION, AND PEACE. W. P. Rogers. Advocating international arbitration. 4 Mich. L. Rev. 91.

WAR IN THE ORIENT IN THE LIGHT OF INTERNATIONAL LAW, THE. Theodore J. Grayson. Discussing various novel questions in international law brought up by the recent war. 53 Am. L. Reg. 672.

II. BOOK REVIEWS.

THE LAW OF CONTRACTS. By William Herbert Page. In three volumes. Cincinnati: The W. H. Anderson Company. 1905. pp. cccclxv, 1-848; 851-1930; 1933-3083. 8vo.

This work is a disappointment. it might have been. It is neither a first-class digest nor a first-class treatise. Neither does it satisfactorily collect the cases under appropriate sections, nor does it discuss principles so as to throw real light on the matter in hand. Of historical investigation it shows little or none. It is simply another bulky treatise which deals with its subject in an uncritical way, retaining many old fallacies and, it is to be feared, giving succor to more than one that is new. On the other hand it must be given credit for rejecting many common errors and for having cited, though often without careful discrimination, most of the recent cases on the subject. It is only proper that these criticisms should be supported by some reference to the work itself.

It is of value, but it falls far short of what

In § 274 the common definition of consideration as "a benefit to the promisor, or a detriment to the promisee" is adopted. While this definition persists in the books, it is certain that the number of cases in which a benefit to the promisor has been held sufficient are few indeed. Of those that Professor Page cites, not one is a decision in point. Referred to in one of the cases cited by him, however, is a decision (Burruss v. Smith, 75 Ga. 710) which might be thought to be in point. But why was not Scotson v. Pegg (6 H. & N. 295) included among the references? It is a leading case. The court go expressly upon the notion that a benefit is sufficient and it is only by adopting their argument that the case can be made to square with the ordinary statement that doing or promising what you are already bound to do is not a consideration. And other cases similar to Scotson v. Pegg could have been added. Williston, Cases on Contracts, I, 248. Professor Langdell (Summary of Contracts, § 64) long since pointed out that benefit to the promisor, while necessary to create a common-law debt, is neither necessary nor sufficient to make a promise binding. Indeed, to create a debt a detriment also is required, so that even there benefit though necessary is not a sufficient consideration. Most writers on contracts have agreed with Professor Langdell. Pollock, 6th ed., 164; Anson, Huffcut's ed., 88; Harriman, 1st ed., 56-7; Ames, 2 HARV. L. REV. I; Williston, 8 ibid. 33; Holmes, Com. Law, 290. Every case, and they are numerous in America (Williston, Cases on Contracts, Í, 252, note), holding that a promise

to a new party to do what you are already bound to do is not a consideration is an authority against Professor Page's statement. One is constrained to think

that he has not familiarized himself with either the best discussions of the matter or with the cases really bearing on it.

In § 276 it is stated that a consideration from A will support a promise to B. This must be considered an open question on the authorities. But only one or two of Mr. Page's citations bear on the question. Some of them are cases permitting beneficiaries to sue. These might have been multiplied almost indefinitely. That they have nothing to do with the question was clearly pointed out by Professor Williston in 15 HARV. L. REV. 771. Indeed, Professor Page recognizes this himself, Vol. I, p. 408. Professor Williston, at the place just cited, collects other cases bearing upon the question. These, one excepted, are not noted in the present work. The cases cited on page 409 as contra, with the exception of Thomas v. Thomas (2 Q. B. 851), have no bearing on the present question.

In § 578 we find the statement that "a written contract which is not required by law to be proved by writing, or to be in writing, is of no effect unless it is delivered, unless there is a valid oral contract between the parties, intended by the parties to be effective before delivery.' What does this mean? Probably simply that the oral contract is valid. Do all written contracts then require delivery? This is not usually stated as one of the requisites of a simple contract. Of the cases cited by Mr. Page it may be said that in two of them the parties evidently made delivery a condition precedent to the contract taking effect, one was the case of a note and mortgage obviously distinguishable, one held that preliminary negotiations were merged in a written contract, and the other was at most but the uncommunicated offer of a note or due-bill in satisfaction of a precedent debt. In Professor Lawson's article on Contracts in 9 Cyc. 302, one will find several more cases stating that delivery is necessary. But on examination it appears that these statements were not required for the decisions and that they were made without any real consideration of the question. There is one sort of case that tests the matter. Suppose the parties to have put their agreement into writing and to have intended it to take effect as a contract, but that there has been no delivery. Would it be decided that there was no contract? The writer has not seen a case so holding. But Brogden v. Metropolitan Ry. Co. (2 App. Cas. 666) and Amer. Pub. Co. v. Walker (87 Mo. App. 503) seem to require the contrary view. See also Mildren v. Steel Co., 90 Pa. St. 317. It should be added that memoranda to satisfy the Statute of Frauds do not require delivery. 29 A. & E. Ency. Law 855-6; Clark, Contracts, 2d ed., 91.

In

If space permitted, much more evidence of a similar character could be produced. One is surprised to find Xenos v. Wickham cited (p. 64) for the view that a sealed offer is irrevocable. McMillan v. Ames (33 Minn. 257), the only other authority cited on the point, is also a case of a covenant, not an offer. § 1256 we are told that, when the assignee was permitted to sue at law in the assignor's name, the rule that choses in action could not be assigned at law degenerated into a mere rule of pleading. This seems misleading. The truth is that the assignee's substantive rights remained the same as before. The change was merely one as to the forum in which they were to be enforced. Now he could sue at law in his assignor's name instead of seeking a court of equity. But his right was still an equitable one for all other purposes. For example, if the debtor paid the assignor without notice of the assignment he was still protected. That could not be if by the change the assignment became effective to pass the legal title to the chose. Then the assignee would be in the position of the transferee of a negotiable instrument. Payment to a prior holder would not affect him. In § 1258 we are told that now choses in action may be assigned as well at common law as in equity and that this is largely due to statute. The statutes Professor Page refers to merely permit the assignee to sue in his own name. They do not change his substantial rights. Do they make choses in action assignable at law? Not at all. They simply affect a rule of procedure. Finally the whole discussion of beneficiaries is

surely capable of improvement in the light of Professor Williston's article in 15 HARV. L. REV. 767.

On the other hand, as has already been said, many common errors are avoided. The usual statement that a seal creates a presumption of consideration is properly discarded (§ 561). Contracts implied in fact are distinguished from quasi-contracts (§ 771). The difference between failure of consideration, in the sense of breach by the plaintiff, and lack of consideration is clearly indicated (§ 274). Mistake as to parties or terms of the contract which may prevent its creation, and mistake as to other matters which at most may render it voidable, are well discriminated (§ 60). These instances might be multiplied. Many matters are capitally explained. The adding of duplicate citations to unofficial reports is commendable. No doubt the work will prove useful.

C. B. W.

JURISDICTION AND PROCEDURE OF THE SUPREME COURT OF THE UNITED STATES. By Hannis Taylor. Rochester: The Lawyer's Co-operative Publishing Company. 1905. pp. lxvi, 1007. 8vo.

The publication of a text-book of over a thousand pages, dealing solely with the jurisdiction and procedure of the United States Supreme Court, marks an epoch in the literature on this subject. Practice in the Supreme Court has been dealt with at some length in a volume by Heber J. May, Esq., published by John Byrne and Company in 1899; but this volume was more like a volume of annotated court rules than a well-rounded treatise. Aside from Mr. May's book, the text-book sources to which the practising lawyer had to go for light on the subject were the chapters in books on the general subject of Federal Procedure. There was therefore a distinct call for the present work. Professor Taylor seems to have met this call with great success. He does not content himself, as do so many text-book writers of the day, with a mere statement of head-notes or extracts from opinions -- although there are many passages, some of them quite long, from the opinions of the court. Such extracts, however, and the brief digests of cases are admirably handled and so well blended with the comments of the author that, were it not for quotation marks, it would often be difficult to distinguish between the two. Nor does the author confine himself to a statement of the exact extent of the present jurisdiction and the method of procedure. He has followed the course which so distinguished Professor Thayer's methods that of treating the entire subject from an historical and philosophical point of view. The subject is, of course, one especially adapted to such treatment.

The plan of the book is well arranged. In a preliminary chapter which, although entitled "Preface," contains much in excess of the usual prefatory remarks, there is "an outline of leading cases from the organization of the court to the present time," which illustrates in an interesting fashion not merely the development of the jurisdiction of the court, but its treatment of the various subjects of law which have come before it. The chief changes in the personnel of the court are also here noted. In an introductory chapter the origin and development of the court is treated at some length. There is an admirable disquisition upon the unique place occupied by the Supreme Court and the causes which brought it into its present position, wherein the scientific treatment of his subject by the author is especially noticeable. The chapter contains brief statements with regard to the effect upon the course of the court caused by the changes in the justices sitting.

The body of the work is divided into six main heads. Part I deals with the original jurisdiction of the court; Parts II, III, and IV deal with the appellate jurisdiction of the court over, respectively, the ordinary federal courts, the special federal courts, and the state courts; Part V discusses "The Great Writs," and Part VI deals with procedure. In two appendices are the rules of the Supreme Court and a collection of practical forms. Then follows an index and a table of cases cited, which shows a collection of some three thousand decisions.

Of the main divisions of the work, those which are most valuable to the ordinary practitioner are of course Parts II, IV, and VI, and they naturally take up the greater part of the text of the book, covering respectively 150, 125, and 165 pages. The arrangement of the topics under the main heads is good, and, while the text is rich in citations and in quotations, the author does not hesitate to give his own explanation and interpretation of the points discussed. In addition to citations of cases there are in numerous instances references to notes or exhaustive collections of cases made by others. The difficult task of stating one after another the leading cases decided by the Supreme Court, which is undertaken in the preface, is likewise skillfully handled.

The portions of the book dealing with the history of the court, and the sections dealing with the court's original jurisdiction, especially the boundary cases, make interesting reading even for a layman. The influence of Marshall, both in extending the jurisdiction of the court and in establishing it in its high place, is well set forth.

The mechanical part of the work is in general well done. The table of cases is not nearly so valuable as it would have been, however, had the names of the defendants been indexed as well as those of the plaintiff, for it not infrequently happens that the name of one of the parties only is recalled by the reader seeking the comment upon a case. The index also is open to the criticism that its list of main heads is altogether too small. It is hard to understand, for instance, why so often used a phrase as "full faith and credit" should not have a place in the alphabetical headings of the index. These, however, are very minor points of criticism.

The text-book is a welcome addition to the hitherto scant literature dealing with the Supreme Court, and will be helpful to every lawyer whose practice takes him before that important body. It will also well repay the study of the law student who wants to become familiar with the jurisdiction and practice of the highest court in the land.

E. E. F.

A TREATISE ON THE LAW OF AGENCY, including Special Classes of Agents, Attorneys, Brokers, and Factors, Auctioneers, Masters of Vessels, etc. By William Lawrence Clark and Henry H. Skyles. In two volumes. St. Paul, Minn.: Keefe-Davidson Co. 1905. pp. liv, 1-1146; 11472178. 8vo.

Although the usual preface in which the writer of a new law-book commonly sets forth his aims is wanting in this work, it is easily to be guessed from a slight study of it that the object of our joint authors is the production of a more comprehensive treatise on the subject of Agency than any previously published. To a great extent they have succeeded. The book, in its nineteen hundred and more pages of text, besides stating general principles, treats of the finer points of the subject in detail, and substantiates its conclusions by citations far more exhaustive than those of any other work upon the subject. Add to these merits clearness of treatment, a convenient division and subdivision of topics plainly set forth in a satisfactory table of contents, and a reasonably complete index, all of which are provided by the writers, and we have a book most useful to the attorney seeking for information as to the state of the law.

Nevertheless it is not without its defects. Although it is by no means a mere collection of cases, yet its explanation of the difficult underlying theories of the relation of principal and agent is not so final as the student of the law might wish. For instance, it is certain that the relation of principal and agent, though consensual in its nature, is not strictly a contractual one. This is recognized on page 109, where it is stated: A contract between principal and agent, as distinguished from mere consent of the principal, is not necessary to authority on the part of the agent. As we have seen, a person who has no capacity to make a binding contract may nevertheless be an agent." But in that section of chapter ii. entitled "Who May Be Principals" there is some tendency to

treat the relation as dependent on contract. Thus on page 47 we read: "At common law a married woman . . . is incapable of entering into a binding contract... and she is incapable of appointing an agent or attorney. Except, therefore, in so far as her common law disabilities have been removed by statute, all contracts of agency or appointments of an attorney by a married woman, and all contracts or acts which she undertakes to make or do through the intervention of an agent or attorney are absolutely void." Later, on page 523, is found a discussion of Freeman's Appeal (68 Conn. 533), a case in which the court held the guaranty of a married woman delivered in Illinois by her agent to be void, on the ground that by the law of her domicile, Connecticut, where the appointment of an agent was made, she had no capacity to contract, and therefore no power to appoint an agent, and consequently could not be bound by the act in Illinois, whatever might be the law of that state as to her capacity. Our authors remark " this case was really not a construction of the agent's authority, but a construction of the power possessed by the married woman under the laws of Connecticut"; and they quote the language of the court: "The underlying question is, ' Was it, as to her, ever delivered at all? It was not so delivered unless delivered by her authority, and by the laws of Connecticut, where she assumed to give such authority, she could not give it." It is submitted that the case may be more readily explained as based upon a misconception of the principles of agency, and opposed to the authority of Baum v. Birchall (150 Pa. St. 164), not cited by the

authors.

Another instance of failure to explain a troublesome principle as clearly as might be wished, is found in the discussion of the nature and extent of the agent's authority. A principal may be liable to a third person for acts of his agent done contrary to his wishes or even his express directions in two cases: first, if he has in some form represented to the third person that the agent has authority to do the acts, and the third person has changed his position in reliance upon those representations, the principal is estopped, upon grounds not in any way peculiar to the subject of Agency, to deny the authority; second, if the principal has given the agent authority to conduct certain matters, but has without notice to the third party given private instructions reducing the agent's discretion below that ordinarily exercised by agents engaged in similar enterprises, the third person is not bound by such instructions, even though on account of lack of representations made directly from the principal to the third party the elements of estoppel do not exist. Whether an estoppel is made out is a matter of no great difficulty; but the determination of the line at which instructions of the principal cease to be effective limitations upon authority and become unimportant so far as the rights of third parties intervene, is probably the most perplexing problem in the subject of Agency. The authors have so confused this topic of "apparent authority" with estoppel in chapter viii. on the "Nature and Extent of Agent's Authority" as to impair seriously the value of the book as a trustworthy statement of the law. It is to be hoped that in a second edition, which the work on its merits should command, this chapter may be rewritten more clearly.

H. LE B. S.

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

A previous work by Dr. Goodnow, under the title of Comparative Administrative Law, received such praise from competent critics that the present volume was looked forward to with keen expectation. Nor will critical scholars be disappointed with its contents. It is conceived in a thoroughly scientific spirit, and the subject has been worked out with a clearness of expression, an orderliness of arrangement, and a depth of knowledge that will rank the work as a valuable contribution to political science. The magnitude of the task undertaken by the author may be appreciated when it is said that over six hundred