dependent occurred after the particular estate ended, the interest could now take effect as an executory devise; but the courts still blindly held to the rule, that if the contingency might possibly occur before or at the termination of the preceding estate, the interest must be held a contingent remainder, and so destructible. Every future interest which has been held a contingent remainder will, however, be found to have been limited upon a contingency which might have occurred either before or after the termination of the particular estate. The logical result of In re Lechmere and Lloyd, and the later decisions, holding such an interest not a contingent remainder, is, therefore, that the rule has been abrogated, and there exist to-day practically no contingent remainders, i. e., contingent future interests which must take effect by way of succession.

Mr. Jenks, on the other hand, maintains that the rule discussed above faithfully carries out the testator's intention, and is still law. It is erroneous, says he, to suppose the rule "to imply that the same limitation might conceivably be construed both as a remainder and as an executory interest." Unquestionably the same limitation cannot take effect both as a contingent remainder and as an executory devise. This is, however, no objection to holding that the limitation shall take effect as a contingent remainder if the contingency occurs before the particular estate ends; and as an executory devise if the contingency occurs afterwards. Mr. Jenks contends that the essence of a contingent remainder is that "it was clearly intended to take effect on, and only on, the expiry of the particular estate-in other words, by way of succession." But if the reason why a contingent future interest capable of taking effect as a remainder, shall be construed as a contingent remainder, is because the testator intends it to be a remainder, then the rule is reduced to the empty formula, that the interest shall be construed to be what the testator intended it to be. What does Mr. Jenks mean by the intention that the interest shall take effect "by way of succession," i. e. as a remainder? If he means that the testator intends that the beneficiary shall not take if the contingency occurs after the particular estate ends, it is submitted that in fact no such expressed intention can be found in the cases in which the rule has been enforced. Mr. Jenks seems, however, to ascribe to the testator a more artificial intention. The testator is made to conceive of an estate in the abstract, apart from the beneficiaries designated by him, and to intend that it shall take effect, if at all, only at the instant when the particular estate ends. It seems more accurate in fact to say that he intends that after the expiration of the particular estate the beneficiaries described shall take a certain quantum of interest if a named contingency happens. If the contingency may obviously occur either before or after the preceding estate ends, and if the law permits the interest to take effect in the former event as a contingent remainder, and in the latter as an executory devise, then, unless such a desire is clearly expressed, it is a fiction to say that he intends the interest to take effect in the former alternative only.

WRITTEN AND UNWRITTEN CONSTITUTIONS IN THE UNITED STATES. In deciding, in the case of Dorr v. United States (195 U. S. 138), that the right of trial by jury does not extend to the Philippine Islands, the Supreme Court of the United States has opened an entirely unsuspected field in American constitutional law, which Judge Emlin McClain has apparently been the first to explore. His able and suggestive essay furnishes the basis for a new chapter in the text-books on the subject. Written and Unwritten Constitutions in the United States, by Emlin McClain. 6 Columbia L. Rev. 69 (Feb., 1906).

The case of Dorr v. United States reaffirms and applies to the solution of the facts presented therein the principle decided in the Insular Cases, that the provisions of the Fifth and Sixth Amendments to the Federal Constitution guaranteeing common law procedure, including the right of indictment and trial by

1 Miles v. Jarvis, 24 Ch. D. 633 (1883); Dean v. Dean, [1891] 3 Ch. 150; Blackman v. Fysh, [1892] 3 Ch. 209; Battie-Wrightson v. Thomas, [1904] 2 Ch. 95.

jury, do not extend to the inhabitants of our insular possessions. It would seem that this applies equally to all the territories of the United States. By section 3 of Article IV of the Constitution, Congress is given the power "to dispose of and make all needful rules and regulations respecting the territory and other property belonging to the United States." Therefore, it is suggested, there can be no distinction between the organized and the unorganized territories. The privileges guaranteed by the Bill of Rights in fact extend to the former only by virtue of an Act of Congress or a treaty provision. The conclusions of the Supreme Court, moreover, with reference to the Fifth and Sixth Amendments, seem equally applicable to the provisions of the other amendments. The court, indeed, quotes with approval from an earlier decision to the effect that the right of indictment and jury trial are not fundamental in their nature. See Hawaii v. Mankichi, 190 U. S. 197. Yet if the court is to determine what provisions are and what are not fundamental, it must do so not in accordance with any provisions contained in the Constitution itself, which makes no such distinction, but in accordance with some general principles of constitutional law not found in the written instrument, and therefore in the nature of an unwritten and evolved constitution. In legislating for the states, Congress is limited only by the terms of the written Constitution; in legislating for the territories its limitations are unwritten. Whence comes this evolved constitution? Its provisions, it is argued, are deduced by analogy from the provisions of our written Constitution, so far as they are applicable to the situation, and also, it may be, from the general principles of the unwritten constitution of Great Britain. But these restrictions, Judge McClain thinks, should not be applied by the courts, since their power to declare the acts of a co-ordinate branch of the government invalid extends only to such acts as contravene the provisions of the written Constitution. They must depend for their enforcement upon the same influences which have enforced the unwritten constitution of Great Britain. This result seems the wiser, also, because the application of these principles will involve broad questions of public policy pertaining rather to statesmanship than to legal theory, and therefore more germane to the executive and legislative branches than to the judicial department. Judge McClain concludes that whatever may be our opinions as to the responsibility of these branches of our government, it would seem unwise to recognize the paramount supremacy of the courts in enforcing such a constitution. This result, which follows as the corollary of the Dorr case, will give to the government of our newly acquired possessions the elasticity which is necessary in dealing with the novel conditions, and will also save our written Constitution the wrench which would be inevitable in fitting its provisions to a condition for which it was never intended.1

PERSONAL NAMES. The legal problem with regard to names arises usually in two classes of cases: in pleading, where there has been a misnomer in some process; and where a written instrument, such as negotiable paper or a deed, has been signed with a fictitious name. In these cases, if the party sued has used the name, the question is merely one of identifying him as the user and then applying doctrines of estoppel. See 2 BOUVIER, L. DICT., RAWLE'S REV., 463. A more fundamental question, involving the nature of a name and the right to its use, is presented when a man wishes to change his name permanently. This topic forms the basis of a late article in the Yale Law Journal, Personal Names, by G. S. Arnold, 15 Yale L. J. 227 (March, 1906). By a treatment somewhat historical, supplemented by a collection of authorities, the author shows that originally a name was only a convenient method of distinguishing individuals from one another, and, being selected arbitrarily by the bearer, could be abandoned at his caprice. This early common law doctrine persists to-day;

1 As to whether there is an unwritten constitution which applies to the states as well, see Unwritten Constitutions in the United States, by Emlin McClain, 15 HARV. L. REV. 531. As to what constitutional rights are fundamental and what are not, see The Legal Status of the Philippines, by Lebbeus R. Wilfley, 14 Yale L. J. 266.

a change of name requires no particular formalities, such statutes as there are being merely permissive and not prohibitive. Laflin and Rand Co. v. Steytler, 146 Pa. St. 434. Mr. Arnold's conclusion seems to be that of the English writers, that the name of a person is a mere fact, not a legal right. It is the appellation by which one is known, and legally a person may have any name he can induce the public to use. See 26 SOL. J. 689. Even the fact that a man's name has been changed by the legislature does not compel the public to call him by his new name, but merely gives unequivocal and notorious beginning to its use. Leigh v. Leigh, 15 Ves., Jun., 92, 98. Assuming, then, that a man may change a name at will, are there any limitations upon the new choice? He may assume any name, even one similar to that of another person, provided it is not used to pass off his own wares or merchandise as those of that other. POLLOCK, TORTS, 7th ed., 156; ADDISON, TORTS, 7th ed., 575. The reason for this latter qualification is apparently the one pointed out by Mr. Arnold, that in a business a name may have assumed the nature of a quasi trade-mark. That one can assume a name which happens to be the name of another person seems to follow from the proposition that a name is a mere fact. It is undeniable that the choice of the name of a person of reputed integrity and honor by one of dissolute and disreputable habits is harmful to him whose name is so used. But as there is no legal right injured, the remedy must come from the legislature, for at common law it is damnum absque injuria. Such a choice of a name would be all the more reprehensible were it made merely from malice; but even in such a case it is at least questionable whether motive per se would make this act a legal wrong, no legal right being otherwise transgressed.

ARE NOTES OR OTHER UNEXECUTED OBLIGATIONS GIVEN TO A RAILROAD COMPANY TO INDUCE THE LOCATION OF STATIONS AT A GIVEN POINT VOID AS AGAINST PUBLIC POLICY? M. C. Garber. Pointing out and deprecating the tendency to uphold such obligations. 62 Cent. L. J. 164.

BEGINNING OF LIABILITY OF A CARRIER OF GOODS, THE. Joseph H. Beale, Fr. 15 Yale L. J. 207. For a similar treatment of the beginning of liability of a Carrier of Passengers, see 19 HARV. L. REV. 250.

BLACKMAIL AND EXTORTION. I. James W. Osborne. First in a series of articles treating the subject largely with reference to New York law. 4 Bench & Bar 50. CLOG ON THE EQUITY OF REDEMPTION. Edmund G. Kaye. Largely devoted to citation and discussion of English cases. 26 Can. L. T. 88. COMBINATIONS OF CONTRACTS RELATING TO THE SALE OF PERSONAL PROPERTY. Edward S. Rapallo. Discussing the question whether descriptions of property sold constitute collateral warranties or are part of one indivisible contract. 14 Am. Law. 52.

CONSTITUTIONALITY OF STATE LICENSE LAWS FOR THE PRIVILEGE OF DOING BUSINESS, INVOLVING CLASSIFICATION AND DISCRIMINATION, THE. Eugene McQuillin. A brief statement of the results of some of the decisions. 62 Cent. L. J. 124.

CONSTITUTIONALITY OF STATE STATUTES CONFERRING LIENS ON SHIPPING, THE. William B. Gillmore. A collection of cases with summary of conclusions drawn therefrom. 29 N. J. L. J. 37.

CONTINGENT FUTURE INTERESTS AFTER A PARTICULAR ESTATE OF FREEHOLD. Albert Martin Kales. 21 L. Quar. Rev. 118. See supra.

DECISIONS AND LEGISLATION AFFECTING CORPORATIONS DURING 1905. Athelstan Vaughan. 31 Nat. Corp. Rep. 946.

EFFECT OF FOREIGN CHATTEL MORTGAGES UPON THE RIGHTS OF SUBSEQUENT PURCHASERS AND CREDITORS, THE. Marion Griffin. 4 Mich. L. Rev. 358. See 18 HARV. L. REV. 145.

EXAMINATIONS BEFORE TRIAL TO FRAME PLEADINGS. II. Raymond D. Thurber. Stating the practice in New York state. 4 Bench & Bar 60.

1 For a discussion of the law on this point, see 18 HARV. L. REV. 56, 318.

2 It could hardly be contended that the right to a name falls within the very shadowy limits sought to be established for the so-called right to privacy. For a general discussion of the latter right, see The Right to Privacy, by Samuel D. Warren and Louis D. Brandeis, 4 HARV. L. REV. 193.

EXTRA-TERRITORIAL JURISDICTION IN CHINA. Gustavus Ohlinger. Discussing the system of consular courts in China. 4 Mich. L. Rev. 339.

FREE CHURCH OF SCOTLAND CASE, THE.

Francis C. Lowell. Discussing the case

commented upon in 18 HARV. L. REV. 310. 6 Columbia L. Rev. 137. FUTURE INTERESTS IN LAND. Edward Jenks.

20 L. Quar. Rev.; 21 ibid. 265. See

supra. GROWTH OF NEUTRAL RIGHTS AND DUTIES. Edwin Maxy. General discussion, largely historical. 14 Am. Law. 55.

“He shall see that the LawS ARE FAITHFULLY Executed." Anon. Criticising a decision of the Mississippi Supreme Court. 1 (The) Law 806. See supra, p. 524. HOW SHOULD OUR LAW BOOKS BE WRITTEN? Albert S. Bolles. Advocating the fuller statement and comparison of the different rules prevailing in the various states. 15 Yale L. J. 221.

INROAD UPON FIDUCIARY INTEGRITY, AN. Edson R. Sunderland. Deprecating several recent decisions that an insolvent executor need not pay a debt due from himself to the estate. 4 Mich. L. Rev. 349.

INSURANCE AS A COMMODITY. Eugene A. Gilmore. Maintaining that the Federal Commerce Clause is restricted to the exchange of tangible objects and hence does not include insurance. 18 Green Bag 142. Cf. 19 HARV. L. REV. 142.

LAW OF THE CONSTITUTION IN RELATION TO THE ELECTION OF PRESIDent, The. I, II. 7. Hampton Dougherty. Pointing out weaknesses in the electoral system. 14 Am. Law. 21, 68.

LIABILITY OF LESSOR OF RAILROAD FOR LESSEE'S NEGLIGENCE RESULTING IN INJURY TO LATTER'S EMPLOYEE, Cyrus J. Wood. Arguing for the lessor's liability. 62 Cent. L. J. 181.

LIABILITY OF RECEIVING CARRIER FOR LOSS BEYOND ITS OWN LINE-CONSTITUTIONALITY OF THE VIRGINIA ACT. A. W. Patterson. Arguing against a decision holding an act imposing such liability unconstitutional as a restraint on the freedom to contract. it Va. L. Reg. 791.

ORIGINAL PACKAGE INEPTITUDE, THE. William Trickett. Pointing out inconsistencies in, and difficulties in applying, the present Supreme Court doctrine. 6 Columbia L. Rev. 161. Cf. 18 HARV. L. REV. 547.

PERSONAL NAMES. G. S. Arnold. 15 Yale L. J. 227. See supra.
PROBLEM OF UNIFORM DIVORCE LAW IN THE UNITED STATES.

George Elliot

Howard. Advocating a uniform law to be obtained by action of the commissioners on uniform state legislation. 14 Am. Law. 15.

PROPOSALS FOR THE AMENDMENT OF THE INTERSTATE COMMERCE ACT, THE. John B. Daish. A critical examination of the bills now pending in Congress. 18 Green Bag 150.

RIGHT OF A SURVIVING PARTNER TO SELL REAL ESTATE WHICH BELONGED TO

THE FIRM, THE. T. Cyprian Williams. Commenting upon a case in [1906] 1 Ch. 113. 50 Sol. J. 307. See supra, p. 541.

SKETCH OF THE PRINCIPLES OF MOHAMMEDAN JURISPRUDENCE, A. I, II. Abdur Rahim. Brief, but comprehensive. 3 Calcutta L. J. 11n, 27n.

TORRENS SYSTEM, THE. AN OPEN SYMPOSIUM. Eugene C. Massie. A series of communications discussing pro and con the practical merits of the Torrens System of Land Legislation. 11 Va. L. Reg. 570, 649, 707.

VALIDITY OF INCREASING RATES IN INSURANCE ON THE ASSESSMENT PLAN, THE.
Anon. Discussing a possible distinction between societies proceeding upon the
assessment plan and ordinary fraternal associations. 1 (The) Law 743.
WRITTEN AND UNWRITTEN CONSTITUTIONS IN THE UNITED STATES. Emlin
McClain. 6 Columbia L. Rev. 69. See supra.

II. BOOK REVIEWS.

A Treatise on the

PRINCIPLES OF CONTRACTS AT LAW AND IN EQUITY. General Principles concerning the Validity of Agreements. By Sir Frederick Pollock. Third American from the Seventh English Edition. With Annotations and Additions by the late Gustavus H. Wald and Samuel Williston. New York: Baker, Voorhis & Co. 1906. pp. cliv, 985. 8vo. Upon this volume three masters of the law of Contracts have labored. Historical research, careful analysis, and an adequate investigation of modern cases here are combined. Each writer has furnished his portion of these three ingredi

ents of a good legal text-book. It is well within the bounds of truth to say that in no other work is so much accurate information on the general principles of Contracts to be found.

The present edition contains two hundred and twenty-five pages of text more than Mr. Wald's last edition. About two-thirds of this additional matter consists of new chapters by Professor Williston. It is true that the larger part of these new chapters was already in print in articles in the law reviews. But the merit of these articles demanded that they should be made more accessible to the profession. That is now happily accomplished. Nowhere else will one find the rights of a third party on a contract made for his benefit, the results arising from the repudiation of a contract by one party, the principles concerning accord and satisfaction, or the effect of alteration upon written instruments so carefully and accurately explained.

Professor Williston's work, however, has not been confined to these large additions to the text. Practically every note has been altered either by adding citations of other cases or by further suggestive comments on the American authorities. Reference also is made to the important discussions of historical or peculiarly difficult questions which are contained in treatises and reviews.

This work is confined, and rightly, to the general principles of the law of Contracts. Sales, Negotiable Instruments, Partnership and other special subjects are excluded. By this means general principles are more forcefully presented. There are some matters, however, which might well have been, but were not included. A careful analysis and discussion of the law of so-called implied conditions or dependency of promises is greatly needed. Professor Langdei, in his Summary of Contracts, threw much light upon this matter, but some of his conclusions need modification in the light of recent authorities. Probably no one is so well prepared to do this piece of work as Professor Williston. Therefore it is to be regretted that he did not find time to include such a discussion among his additions to the present volume. It also strikes one as odd that no discussion of joint contracts appears. Again, a discussion of strikes and other interference by laborers as a ground of impossibility might have been included. But it is to be remembered that this is an edition of another's book, not an original work.

Nothing has interfered more with a systematic development of the law of Contracts by the courts than the notion that all problems in Contracts may be solved by simply discovering the intention of the parties. Unfortunately for this view, parties about to make a contract have usually neither the foresight nor the prudence to look ahead and contemplate all the possible states of fact which may arise during the life of the contract, and then to provide for each contingency. They think only of the more obvious possibilities and provide for them. When an owner agrees to sell a horse he does not usually think of its possible death before the time for delivery, and stipulate that if it dies he shall be released from liability to perform. In this, as in most cases of impossibility, the release is given as a matter of positive law and not because of the intention of the parties. Professor Williston has recognized this fundamental principle throughout his annotations. A simple illustration will suffice. In the note on page 323 it is made clear that the matter of implied conditions does not rest upon the intention of the parties. Several particular propositions in that subject are not consistent with any such notion.

An especially noteworthy passage is to be found on page 351. Courts often speak of the situation, where one party makes a substantial breach of the contract and the other thereupon stops performing on his side and sues for entire damages, as a rescission. To object to this and other like misuses of terms may seem merely hypercritical. But, as Professor Williston says, Even so, words have their importance. If wrongly used, wrong ideas are sure to follow, and wrong decisions follow wrong ideas." The truth of this statement is all too clearly illustrated in the cases cited.

It may be added that the physical make-up of the book is also excellent.

C. B. W.