as brakes and cog-wheels in delaying the triumph of the latest popular fallacy; and it often happens that, during the delay so occasioned, the bubble is pricked and the danger disappears.

He be

It must not be supposed that the effect of centralization is the only topic discussed in these pages. Professor Bigelow earnestly argues that the education of the lawyer should not be confined to the study of law stricto sensu. lieves, and rightly, that a man who knows nothing but law cannot, at the present day, be a successful legal practitioner. (See especially his very forcible remarks, pp. 203-206; and also Professor Harriman's lecture on "Law as an Applied Science," pp. 208-230.)

Furthermore, there are what may be called incidental nuggets of wisdom scattered up and down the pages of this book. See, for instance, Professor Bigelow's extremely valuable observations on the making of definitions (p. 163); and his warning as to the dangers of logic (p. 183). See also Mr. Adams' statement on p. 51: "Perfection in thought consists in the elimination of the immaterial"; and on p. 46 “. . . You can no more reason from highway precedents to railway problems than you can reason from the ox to the electric battery."

J. S.

A TREATISE ON THE LAW OF FIXTURES. By Marshall D. Ewell. Second Edition, edited and annotated by Frank Hall Childs. Chicago: Callaghan & Co. 1905. pp. cviii, 784. 8vo.

The first edition of this standard treatise was published in 1876. It might be expected, therefore, that a second edition, published in 1905, would show both a large increase in the amount of material included and a recasting of the treatment of several branches of the subject. As to the first requirement, the new edition leaves little to be desired. The number of cases cited has been more than doubled and now amounts to nearly five thousand. Furthermore, the citations cover a range seldom equalled; many references are given to decisions in Canada, Australia, and other parts of the British Empire, as well as to cases in various minor American courts, such as the lower courts of Pennsylvania and Ohio.

On the other hand, the editor's method of bringing the first edition down to date is hardly to be commended. No changes have been made in the text, other than the omission of a number of passages regarded as obsolete, the editor's additions being wholly in the form of bracketed notes. This arrangement may be justifiable in handling a text which has become in some sense a classic, though it inevitably causes inconvenience; but it cannot well be contended that the first edition of the present work, admirable as it was, had attained such a position as to make improper a revision of the text, especially at a time when the author is still living, and, as shown by the prefatory note, able to supervise the new edition. Moreover, the editor's notes are peculiarly unsatisfactory, in that they consist almost entirely of summaries of recent decisions, in the nature of short headnotes, with little or no independent discussion. The result is better than might be supposed, partly because of the good quality of the original work, and partly because of the comparatively slight changes in the principles of this branch of the law. The recent cases have been so largely devoted to the application of well-established doctrines to new states of fact that a treatment of them necessarily partakes somewhat of the character of a digest. But the arrangement is, at best, confusing, and greatly impairs the utility of the book. This is especially so in topics in the treatment of which the editor has made large additions, such as “Taxation"; here a note of more than seven closely printed pages is attached to a third of a page of text, with no sub-headings or other guides through the wilderness of citations. So, as a note to the proposition that "all fixtures, whether actually or constructively attached to the realty, pass by a conveyance or mortgage of the freehold," there are nearly thirteen pages of undiluted abstracts and citations.

The arrangement is also unfortunate because it results in leaving unchanged several parts of the text which call for revision. These are not many, to be

sure, but they are worth noting. For example, the principle is recognized in the text that the question of whether an article annexed to the realty becomes a part of the realty is a question of what has been called the "objective intention" of the person making the annexation, the actual intention being material only as bearing on the right of severance. Nevertheless, the author often loses sight of this principle, and falls into the common but inexact practice of treating the character of such an article as dependent on the intention or agreement of the parties. It is to be regretted that the editor has missed his opportunity to correct this inaccuracy. To take another illustration, the text states without qualification the harsh doctrine of Watriss v. First Bank of Cambridge (124 Mass. 157), as to the effect of a surrender and acceptance of a new lease on a tenant's right to remove fixtures. Surely some discussion of the contrary doctrine might be expected, other than the mere statement that "a few states have repudiated the rule stated in the text," followed by a quotation from the opinion in Kerr v. Kingsbury (39 Mich. 150). Yet again, the important subject of the rights of a mortgagee of fixtures as against a mortgagee of the land is split in two, some of the authorities being examined in the chapter on "Grantor and Grantee," and others in the chapter on Registry Acts." The subject has, of course, these two aspects, but they are so interwoven that an attempt to treat them separately can only result in repetition and confusion, so that a remodeling of the whole treatment was in order.

66

Thus the chief feeling with which one closes the book is one of regret that the editor's painstaking efforts have not been differently directed, that he should have devoted himself so largely to searching out cases in New Zealand and the Straits Settlements, rather than to producing a well-digested statement of the law of fixtures as it exists in the United States to-day.

H. S. D.

THE LAW OF INTERSTATE COMMERCE AND ITS FEDERAL REGULATION. BY Frederick N. Judson. Chicago: T. H. Flood & Co. 1905. pp. xix, 509. 8vo. Those who are familiar with Mr. Judson's work on Taxation will welcome his new venture in the field of legal literature. He has again selected a live subject and one in which the harvest is plenty although the workers are few. Besides the present book, the treatise by Mr. Snyder, of the New York Bar, published in 1904, is the only other up-to-date work on the subject of Interstate Commerce. The main portion of the present work, some two hundred pages, is given up to a detailed discussion of the Interstate Commerce Act and the Amendment of 1903. This is by far the most important feature of the volume. The author takes up the Act, section by section, and collects under each section the appropriate decisions. This is not done by the usual and unfortunate method of merely collecting the citations in footnotes; but the precise point decided in each case is stated clearly in the text. There is not a footnote in these entire two hundred pages. In later passages other congressional acts are discussed, among them the Anti-Trust Act of 1890, the Safety Act of 1893, with its amendments of 1896 and 1903, the Expedition Act, the Accident Law of 1901, the National Arbitration Act, the National Trade Union Incorporation Act, and the Act creating the Department of Commerce and Labor. Under each of these enactments Mr. Judson collects exhaustively the illustrative decisions; those of the Interstate Commerce Commission he states at length.

The first one hundred and fifty pages of the work are devoted to a general discussion of Interstate Commerce and the conflict between federal and state control. Here is provided an admirable summary of the law in its present state; but there is lacking the theoretical presentation necessary to a complete grasp of the subject. Especially is this true of the discussion of the effect of state"Police Power" on Interstate Commerce. Though in few other subjects is it so necessary to understand the growth of the law, the treatment of this phase of the Interstate Commerce law is inadequate; and to secure a thorough understanding thereof the student will still be compelled to look to the special

works on the subject, especially to the admirable and scholarly treatise by Mr. Hastings, published in the Proceedings of the American Philosophical Society, September, 1900. Again, the discussion of the decisions under the Wilson Act is hardly complete. For example, the author fails to note the cases dealing with the effect of licensing ordinances under the Wilson Act, a phase of the subject upon which the law was in some doubt until the recent decision by the Supreme Court of the United States in the case of Pabst Brewing Co. v. Crenshaw (25 Sup. Ct. Rep. 552). The last-mentioned case was decided after the publication of Mr. Judson's work, but he should have noticed such decisions as Pabst Brewing Co. v. City of Terre Haute (98 Fed. Rep. 330). Possibly, these matters may be regarded as somewhat collateral to the main purpose of the book, and the limitations in space may be offered as an excuse for the inadequacy of treatment.

The most serious general criticism that suggests itself to the reviewer is that Mr. Judson has not sufficiently expressed his own opinion upon mooted questions, nor given a sufficient discussion of the dissenting views on certain important cases, especially those which the Supreme Court has decided by bare majorities. For example, the Northern Securities case would seem to merit more than half a page, and one would expect at least to secure references to authorities where elaborate discussions of so weighty a decision could be found. On the other hand, the author has produced a thorough and eminently practical compilation of the decisions upon the subject of Interstate Commerce. His is probably the most useful work that has appeared upon the subject. It is well edited, the arrangement is clear and concise, and the index is complete. Of interest and value is the table of decisions of the Interstate Commerce Commission on the question of reasonableness of rates, showing the cases in which the order of the Commission was complied with by the railroads, wholly or partially, and the instances in which the enforcement of the order of the Commission was compelled or refused by the federal courts. J. M. B., JR.

THE LAW OF FIRE INSURANCE. By George A. Clement. In two Volumes. Volume II. New York: Baker, Voorhis & Company. 1905. pp. cxvii, 807. 8vo.

A notice of the first volume of this work appeared in 17 HARV. L. REV. 370. This volume, the second, purports to treat the subject of fire insurance, "taking as a basis the conditions of the standard forms or of the contract specifically declaring the agreement to be void." The statements of law are reduced to " rules," so called, so that the text takes much the form of a brief. The book is not a treatise, nor does it pretend to be. It furnishes, however, a ready means of reference to a large number of cases and to the principles gov. erning this branch of the law of fire insurance. Especially is the work to be commended for giving under each topic the provisions of the various standard forms of policies, and pointing out wherein they are similar and wherein they differ.

As

The New York standard form has been made the basis of the work. this form is in such general use, the fact does not, perhaps, lessen the value of the book in the hands of one familiar with the general principles of insurance. It does, however, greatly detract from its value as a book to be used either by students or by any persons not already well acquainted with the subject, in that, by laying stress on the terms of the standard form, it is likely to mislead such persons as to the nature of some of the fundamental doctrines underlying every contract of insurance and the reasons for such doctrines.

For instance, such persons might well be misled as to the real nature of the defense of concealment, by what is said on p. 2, where, after giving the "rule as to concealment as imposed by contract" by stating the language of the New York standard form on this point, the author adds in a note: "It would seem that concealment by the insured as to any material matter relating to the insurance may void the policy independent of any specific

provision therein." A similar note is added on p. 15, after the rule as to misrepresentation.

Rule 15, on p. 157, appears to contradict itself. The opening sentence states that "there is a distinction between interest and title," while the last sentence closes with the statement that "interest may be construed as synonymous with title."

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not infre

In other respects the book is open to criticism. In the first place it can hardly be said to be a scholarly piece of work; the style is poor,quently incoherent and occasionally positively ungrammatical (e. g., pp. 5, 7, 127, 176). The statements of law are not always clear and free from ambiguity. A sentence taken from p. 176 will serve as an example. The subject under discussion is as to what constitutes sole and unconditional ownership within the terms of an insurance policy; and as an illustration, the author says: "An owner of an estate in fee upon a condition subsequent and in possession with no condition broken, and a deed has been deposited in escrow to be delivered upon performance of the condition, is a sole and unconditional owner." Again, in the manner of citing authorities there is room for improvement. The cases cited are grouped apparently without any attempt at uniformity, either in arrangement of jurisdictions (alphabetically or otherwise), or in placing together all cases cited from one jurisdiction. Where a few cases only are cited, this matter is perhaps not serious; but where, as on pp. 42, 49, 107, 448, and elsewhere, we find solid pages of citations, the lack of arrangement becomes a defect which will cause those using the book much loss of time and annoyance. Incidentally we may remark on a lack of uniformity in citing the Massachusetts Reports. For example, Daniels v. Hudson River Ins. Co. is cited on pp. 3 and 15 as in 66 Mass. 416; while on p. 78 the reference is to 12 Cush. 416, which we believe is the correct form of citation. We also believe that 95 U. S. is preferable to 5 Otto (p. 135).

S. H. H.

A SHORT HISTORY OF ROMAN LAW. By Paul Frédéric Girard. Being the First Part of his Manuel Elémentaire de Droit Romain. Translated by Augustus Henry Frazer Lefroy and John Home Cameron. Toronto: Canada Law Book Company. 1906. pp. v, 220. I 2mo.

A TREATISE ON THE PRINCIPLES AND PRACTICE OF THE ACTION OF EJECTMENT and Statutory Substitutes. By Geo. W. Warvelle. Chicago: T. H. Flood and Company. 1905. pp. lviii, 679. 8vo.

THE RULE AGAINST PERPETUITIES. By John Chipman Gray. Second Edition. Boston: Little, Brown, and Company. 1906. pp. xlvii, 664. 8vo.

A

CONTRACT made in a foreign state and to be performed there, is, by the usual rule, governed by the law of the foreign state as distinguished from the law of the forum where suit may happen to be brought upon it. The law of the foreign state governs not alone as to the validity of the contract, its legal effect, and the construction of its terms, but also as to the sufficiency of defenses to a suit upon it. Thus, if the suit in the forum be against a surety on a note, the giving of time to the principal debtor is a defense only provided the law of the foreign state recognizes it to be so.1 In practice, however, in the various jurisdictions of the United States, it is believed that many suits on foreign contracts are tried without either party alleging or proving in the slightest degree the foreign law which admittedly governs and is a necessary part of the plaintiff's case and the defendant's defense. Upon what principle can this neglect to prove a relevant fact in the case be justified? It is said usually that the court of the forum supplies the lack of proof by a presumption. Under what circumstances, then, does the court of the forum make a presumption as to the foreign law, and what is the presumption which it makes?

It is fundamental that courts will not, as a general rule, take judicial notice of what the foreign law is, where that becomes relevant. It is equally fundamental that, in general, courts do not presume what the foreign law is. This means no more than that, as a

1 Howard v. Fletcher, 59 N. H. 150; Tenant v. Tenant, 110 Pa. St. 478; 3 Beale, Cases on Conflict of Laws, 544.