ROMAN LAW AND MOHAMMEDAN JURISPRUDENCE. III. Theodore P. Ion. 6 LANDOWNERS IN. Sumner Kenner. Digesting the cases. 66 Cent. L. J. 194. SURRENDER CLAUSE, EFFECT OF, IN OIL LEASE. Berkeley Minor, Jr. Discussing the various theories. 14 The Bar 26. "TURNTABLE CASES," Should the Doctrine of the, Holding Railroad Corporations Liable for Injuries to Trespassing Children, be Extended so as to Make LandOwners Liable for Injuries Caused to Trespassing Children by Unguarded Ditches. Ponds, etc. Sumner Kenner. 66 Cent. L. J. 137. II. BOOK REVIEWS. In 21 HARV. L. REV. 228 (January, 1908) we printed a review of the second edition of Abbott's Practice and Forms, by Carlos C. Alden, published by Baker, Voorhis and Co., New York. In our review of this work criticism was made of the omission of ten of the most recently decided New York cases. Our attention has been called by the editor of the second edition to the fact that of these ten cases four were not omitted, but had been actually cited a total of eight times. In this matter we acknowledge our error, though we feel that it is possible that two of the cases were not cited in every section where they should have appeared. Of the remaining six cases the editor assures us that in his opinion five of them involve matters not within the scope of the work. On this point we do not feel convinced that our review was wrong, but we are glad to recognize the existence of a firm dissent from our criticism. For the injustice in our admitted error we feel the deepest regret. By Sir William R. Anson. Third Edition. Oxford: 8vo. THE LAW AND CUSTOM OF THE CONSTITUTION. In three volumes. Vol. II. The Crown. Part I. At the Clarendon Press. 1907. pp. xxvii, 283. Since the last edition of this work was published, Sir William Anson has been active in public life. Entering Parliament as a member for Oxford University in 1899, he was soon made Secretary to the Board of Education, and had the principal charge of carrying through the Education Act of 1902. No doubt these duties have delayed the preparation of another edition of his book, but students of English government will welcome even this instalment of a new edition, for the work is far the best that exists in its own field. That field cannot be easily defined, but the author has indicated it well in the title of his book, "Law and Custom of the Constitution." In most governments it is easy to distinguish the legal structure from the functions of the organs of the state; but in England this is not so, because the exercise of authority is limited, and even created, by conventions of the constitution which have no legal basis. In the English government, as in a rotary storm, structure and functions cannot be kept distinct. So far, however, as it is possible to separate them, Sir William Anson's book deals with the former, that is, with the law, and with those customs which may be said to form a permanent part of the British constitution, including such things as the responsibility of the ministers, and even the procedure for making appropriations in the House of Commons. It is worth while to keep an authoritative work in such a field well up to date. In the subjects treated by the present volume covering as it does the Crown with its councils, the ministers, and the departments of government there has not been a great deal of change in the dozen years since the last edition came out. Perhaps the most striking change has been that in the Board of Education itself. But the new edition does much more than merely note the results of recent legislation. In one or two respects the book has been largely reconstructed. The author has abandoned his division of the public offices into executive and regulative; that is, into those which deal with the necessities and luxuries of government -a division which was hardly logical, difficult for students to comprehend, and certainly not in accord with the unsystematic construction of British public offices. Instead, the author has arranged the different departments much more nearly in their historic order. Arrangement may be a small matter, but in this case it would seem to add distinctly to the clearness and value of the work. The only considerable addition in the new volume is a much more extensive treatment of the historic evolution of the Cabinet in England. This is extremely interesting, and brings out many things in a short compass. The author points out, for example, how towards the end of the eighteenth century, after the idea of responsibility had taken root, there was still a tendency towards an outer and inner ring, a body of actual administrators who composed the effective Cabinet, while ex-ministers and others formed part of a larger Cabinet which bore towards the inner ring something of the relation that the Privy Council had borne to the Cabinet itself a couple of generations earlier. At the end of his description of the Cabinet, the author discusses its relation with the House of Commons; and here he dwells upon the fact, which is undoubtedly true, that the last extensions of the franchise in 1867 and 1885 have made as wide a breach with the period that preceded them as the first Reform Act did between that period and the times of the unreformed Parliament. He points out "that from 1832 to 1867 a defeat in the House of Commons on what the Cabinet may have chosen to consider a vital issue was the ordinary mode of terminating the existence of a Ministry," but that in later years the fall of a Cabinet has commonly been brought about by a popular election. He points out that during the years between 1832 and 1867, or rather for this purpose 1886, the House of Commons possessed a larger measure of political power, and its members greater independence and freedom of judgment, than at any other period. Before that time the composition and conduct of the House was largely under the influence of the Crown and its servants. Since that time it has been under the control of the Cabinet and of party. Sir William Anson attributes the change rather to the introduction of single-member constituencies than to the extension of the franchise. But whatever one may think of the precise weight to be attributed to a particular cause, his statement of the result is unquestionably correct. "The consequence," he says, "of these various features of our political life at the present time is to make the House of Commons dependent on the Cabinet rather than the Cabinet on the Commons. The threat of a dissolution suggests to the supporters of a Ministry the certainty of expense and the possibility of defeat, and this possibility may assume a more formidable aspect if by-elections have resulted unfavorably to the Government. . . . A member may have ceased to be in sympathy with the leaders of his party, but he may also feel that small as will be his chances of re-election in any event, they would disappear altogether if he broke the bonds of party allegiance. In truth the Redistribution of 1885 has done much to destroy the independence of the members of the House of Commons. The power and influence which it has lost has gone partly to the Cabinet, partly to the constituencies, or rather in many cases, to the organizations by which the constituencies are worked." A. L. L. NEGLIGENCE IN LAW. By Thomas Beven. In two volumes. Third Edition. London: Stevens and Haynes. Philadelphia: Cromarty Law Book Company. 1908. pp. cciv, 1-726; xi, 727-1505. 8vo. Mr. Beven's treatise on Negligence made its first appearance in a single volume, nineteen years ago. In 1895 a second edition was issued in two volumes, which is now superseded by the bulky tomes before us. That a new edition of this work was needed to keep it abreast of judicial decisions, will not be questioned by any one familiar with the output of the courts upon this most fruitful topic of litigation. But the author has not contented himself with introducing into this edition the "1456 new cases on negligence" which have appeared in the English Law Reports since the second edition was published. Some of the chapters have been rewritten throughout, and all have been altered "sufficiently to include a modifying amount of novelty. Of the first class are those in Book VII, on Unclassified Relations. While the heading of each chapter is unchanged, and while many paragraphs have been altered but little, this Book taken as a whole may properly be called a new production. For example, the discussion of Young v. Grote (4 Bing. 253) has been transferred from the chapter on Estoppel to that on Bankers. Moreover, the doctrine of this much criticized case is now limited to the relation of banker and customer, and is stated as amounting to this only: that the customer in that case, "by his neglect to use due caution, had caused his bankers to make payment on a forged order" (p. 1328). To what extent the author's view of Young v. Grote has changed can be seen by comparing the above quotation with the statements on pp. 1595-1599 of the second edition. A good example of the chapters which have not been rewritten, but are modified to a noticeable degree by the introduction of late decisions, is that on Limits of Liability. Particular reference may be made to the portion dealing with liability for damages caused by fright, mental anguish, or nervous shock, when there is no physical impact. The very full discussion of this topic in the second edition is supplemented, here, by a careful and discriminating review of all the important English cases decided between 1895 and 1908. While a few American cases of recent date are cited in this connection, no such prominence is given to them as is accorded to the supplemental English decisions. This is in accordance with the policy explained in the preface, of discontinuing the attempt, made in the former editions, "to present the law of the United States side by side with our own." The author writes: "I am convinced that such an attempt is impossible of success and also inexpedient. I have in my possession a vast American Treatise on Negligence. It is in six volumes, has 7741 pages and deals with 36,000 cases or thereabouts. Yet even in these generous limits very many American decisions on negligence of the greatest weight are not included. What hope then of dealing with a body of law so enormous in addition to our own? Moreover, the study of this Encyclopædia of Negligence has made plain to me what I before suspected that, though of the same parentage as ours, American law has in late years been developing along divergent lines, and accepts principles widely applicable that are to us not only novel, but fundamentally unsound." A characteristic feature of this treatise is its careful analysis and trenchant criticism of decisions which the author deprecates. Stanley v. Powell ([1891] I Q. B. 86) affords an excellent example. Mr. Beven expresses surprise that this should have been "introduced in a recent excellent and authoritative collection as a leading case," and adds: “What a leading case means in this connection I cannot say; but in my opinion Stanley v. Powell is not an authority for anything, but was decided on quite wrong grounds." In the body of the text (p. 569) he declares: "it would be a useless labour to follow the judgment through its confused and inaccurate review of the cases." Here, as well as elsewhere, Mr. Beven, to quote his own words (p. v), “has used considerable freedom in inquiring into the validity of the decisions arrived at." Many a reader will prefer the rule laid down by Mr. Justice Denman, in Stanley v. Powell, to that contended for by the author; but every one who carefully studies the chapter in which that case and kindred cases are dissected and the author's rule is deduced, will bear witness to the ability and thoroughness with which Mr. Beven has dealt with the topic. And what is true of this chapter is true of the entire work. F. M. B. REPORTS OF THE AMERICAN BAR ASSOCIATION. Vol. XXXII. AN ESSAY ON PROFESSIONAL ETHICS. By George Sharswood. Fifth Edition. Philadelphia: T. & J. W. Johnson Company. 1907. pp. 196. 8vo. In the present national searching of conscience the American Bar Association takes its part by proposing and discussing a code of professional ethics, 66 and it is in connection with this proposed code that this reprint of Judge Sharswood's book has been published. Eighty years ago De Tocqueville wrote that in America, as the lawyers form the only enlightened class whom the people do not mistrust, they are naturally called upon to fill most of the public stations," and in 1854 his statement is corroborated by Judge Sharswood. Thirty years later, in his "American Commonwealth," Mr. Bryce tells us that "it is clear that the Bar counts for less as a guiding and restraining power... than it did. . . The growth of the rich and powerful corporations, willing to pay vast sums for questionable services, has seduced the virtue of some counsel whose eminence makes their example important." And today lawyers are often actually objects of public distrust. This fall of the profession from the high prestige of the past has been accomplished by the influx of many who seek admission to the bar mainly for its emoluments. Such as these risk the loss of public esteem provided there is not entailed the loss of gold, and their risk is less because perhaps the public conscience has become passive, through frequent occurrence, to many acts which once would have been the cause of social ostracism. It is from the codification of the elementary standards of the profession alone that help for this state of affairs may be sought, for gradually, as conditions warrant, courts may well require a submission to such principles as a condition precedent to admission to the bar. Of the worth in such a cause of Sharswood's "Professional Ethics" nothing need be said. It is one of the very few legal treatises of which a first edition published over fifty years ago is still valuable to the profession, for, though times and conditions have changed, the same qualities, today as then, make an honest man. It is to be wished that the book were more often and more widely read. M. F. TWO STUDIES IN INTERNATIONAL LAW. By Coleman Phillipson. London: Stevens and Haynes. 1908. pp. xviii, 136. 8vo. A TREATISE ON THE INCORPORATION OF CORPORATIONS. By Thomas Gould Frost. Third Edition. Boston Little, Brown and Company. 1908. pp. xv, 909. 8vo. ON THE WITNESS STAND, Essays on Psychology and Crime. By Hugo Münsterberg. New York: The McClure Company. 1908. pp. 269. 8vo. LA PROPRIETÀ PRIVATA NELLE GUERRE MARITTIME SECONDO IL DIRITTO INTERNAZIONALE PUBLICO. By Tullio Giordana. Turin: Società Tipografico Editrice Nazionale. 1907. pp. 301. 8vo. By Cesare Bertolini. 8vo. DELLA TRANSAZIONE SECONDO IL DIRITTO ROMANO. 8vo. Chi Chicago: The HARVARD LAW REVIEW. VOL. XXI. JUNE, 1908. No. 8. WHAT CONSTITUTES AN EXPRESS WARRANTY IN THE LAW OF SALES. THE HE purpose of this article is to consider what promises or statements make a seller liable for the character or quality of the goods which are the subject of the sale. For the purpose of this discussion it is not material what obligations so created are collateral and what are part of the seller's primary promise. The single object is to determine when the seller will be liable, not how his liability may be enforced, or whether it will survive acceptance of the goods. The law of warranty is older by a century than special assumpsit, and the action upon the case on a warranty was one of the bases upon which the law of assumpsit seems to have been built. The action on a warranty was regarded as an action of deceit, and the words "warrantizando vendidit" seem to have been necessary to make a good count as the words "super se assumpsit" later were in the action of assumpsit. The action on a warranty was thus conceived of at the outset as an action of tort.1 This is, of course, also true of the action of assumpsit, but it was not long before assumpsit came to be regarded, as it is regarded today, as distinguished from tort and rather to be classed in its essential nature with covenant than with trespass on the case. But the right of action on a warranty was not regarded at once as similar in its nature to assumpsit. It was, indeed, not until 1778 that the first reported decision occurs of an action on a warranty brought in assumpsit, though from the language of the courts in that case it 1 Ames, History of Assumpsit, 2 HARV. L. REV. 1, 8. 2 Stuart v. Wilkins, 1 Dougl. 18. |