draw the distinction. Evans v. Iglehart, 6 Gill. & J. (Md.) 171; Budd v. Williams, 26 Md. 265. And the court in the present case also departs from general authority in defining consumable as meaning subject to wear and deterioration. See Whittemore v. Russell, 80 Me. 297. As all personalty wears and deteriorates, this definition, taken with the court's refusal to distinguish between specific and general bequests, would always convert life interests in chattels into absolute interests. WAR - MILITARY PERSONS AS CONTRABAND OF WAR. - During the late Russo-Japanese War the plaintiffs reinsured a ship with the defendants and a clause of the policy warranted against "contraband of war." The ship, with two disguised Russian officers on board and bound for a Russian port, was captured and condemned by a Japanese prize court for carrying "contraband persons." The plaintiffs sued on the policy. Held, that the plaintiffs may recover. Yangtsze Ins. Ass'n v. Indemnity, etc., Assurance Co., [1908] 1 K. B. 910. It is settled that a neutral ship carrying persons in the service of one belligerent may be condemned if captured by the other. The Orozembo, 6 C. Rob. 430. Likewise a neutral vessel may be condemned for carrying contraband goods, though the usual penalty is confiscation of the objectionable cargo. The Peterhoff, 5 Wall. (U. S.) 28. Technically, carrying hostile persons, like the transmission of signals for a belligerent, is unneutral service, and as such service may be rendered anywhere the destination of the neutral ship is immaterial. But as the law of contraband merely regulates trade between neutrals and belligerents, the offense of carrying contraband is consummated only when the destination of the neutral is a belligerent port. MOORE, DIG. INTERNAT. LAW, § 1249. A further distinction appears. For unneutral service the acts of the offending shipmaster form a vital element of the offense, and ignorance will excuse if due care under the circumstances has been used. The Rapid, Edw. Adm. 228. For carrying contraband the proceedings are strictly against the neutral's cargo, and ordinarily the acts of the shipmaster are immaterial. In view of these distinctions the decision in the present case, that the facts here did not constitute a breach of the warranty, seems correct. WITNESSES PRIVILEGE AGAINST SELF-INCRIMINATION STATUTORY DUTY TO PERMIT INSPECTION OF BOOKS. A statute provided that stockbrokers should keep a record of every transaction in relation to transfers of stock and permit a state official to inspect such record, for the purpose of discovering whether a transfer tax had been paid. Failure to pay this tax was made a criminal offense. Held, that the statute is unconstitutional. People v. Reardon, 39 N. Y. L. J. 171 (N. Y., App. Div., March 1908). See NOTES, p. 621 BOOKS AND PERIODICALS. I. LEADING LEGAL ARTICLES. CONTRIBUTORY NEGLIGENCE OF BENEFICIARY under Lord Campbell's ACT. None of the American statutes which allow an action for death by wrongful act indicate the effect of the contributory negligence of the beneficiary. When the right of action is given directly to the next of kin as such, the courts without exception construe the statute to provide a remedy conditional on the plaintiff's freedom from contributory negligence.2 The result, though un 1 See statutes collected in 2 Kinkead, Torts, § 467. 2 Westerberg v. Kinzua, etc., R. Co., 142 Pa. St. 471. See 9 HARV. L. REV. 282. doubtedly commendable from the point of view of public policy, may be criticized as a piece of judicial legislation. It is somewhat comparable to the overruled doctrine that a devisee who murders his testator cannot take legal title under the statute as to wills. In that case, however, the just result may be reached without additional legislation by the imposition of a constructive trust; whereas in the present case the mere unintentional misconduct of the next of kin would hardly prevent him, at law or in equity, from sharing in the deceased's general estate. A further argument against this construction presents itself with the result of slightly splitting the authority - when the action for death must be brought in the name of the executor or administrator; for such a provision might indicate the intent of the legislature to furnish a remedy for injury to the estate rather than to the beneficiaries. On the other hand, even under this form of statute, the amount recovered is usually expressly exempted from the debts of the deceased. Moreover, the generally accepted view is that the remedy is not a survival, but a new cause of action. The plaintiff-administrator, therefore, even though not himself the beneficiary, is to be regarded as representing not the deceased, but the next of kin, whether they are designated as beneficiaries or not, and he can have no better rights than those whom he represents. Hence in case of the contributory negligence of the beneficiary the courts cannot consistently refrain from applying the same construction to these statutes as to those which do not require the nominal interposition of a plaintiff-administrator. Consequently here, too, there may not be recovery, if there is contributory negligence, according to the great weight of authority. It may perhaps be regretted that legislative action has not settled these matters. 8 From the position taken by the courts, it is no great step to read into the statute that where some of several beneficiaries have been negligent, others not, recovery may be denied to the former and allowed to the latter, all in the one action. Such a result has been squarely reached only in Ohio, where the wording of the statute as to assessment of damages lends peculiar support to this construction. The question has probably escaped decision in several cases where the court erroneously imputed the contributory negligence of one parent to the other.10 No such consequence should flow simply from the marital relation, aside from actual delegation of duty." 11 The authorities as to some of these points are collected in a recent article by Professor John H. Wigmore. Contributory Negligence of the Beneficiary as a Bar to an Administrator's Action for Death, 2 Ill. L. Rev. 487 (March, 1908). The rule is there approved, that regardless of the technical form of procedure designated by the statute, recovery should be refused the negligent beneficiaries and allowed the non-negligent. In states where the doctrine of imputing the negligence of a parent to his child is in force, the cases in which the negligent parent is not allowed a recovery for the child's death cannot be cited in favor of Professor Wigmore's theory. In addition to the jurisdictions cited by him as having nevertheless repudiated this doctrine and as having refused recovery by the administrator for the benefit of the negligent next of kin, five other jurisdictions 12 may apparently be cited. Moreover, in another case not cited, 3 Riggs v. Palmer. 115 N. Y. 506. 4 See 36 Am L. Reg. (N. S.) 225. 5 But not so in a few states. 6 2 Kinkead, Torts, § 468. See Carlson v. Oregon, etc., R. Co., 21 Ore. 450. 7 Chicago v. Starr, 42 Ill. 174. Contra, Wymore v. Mahaska Co., 78 Ia. 396. 8 Richmond, etc., R. Co. v. Martin's Adm'r, 102 Va. 201. Contra, Warren v. Man chester St. Ry., 70 N. H. 352; Wymore v. Mahaska Co., supra. Wolf v. Lake Erie R. Co., 55 Oh. St. 517. See also Harton v. Forest City Tel. Co., 141 N. C. 455. Contra, Mill's Adm'r v. Cavanaugh, 29 Ky. L. Rep. 685. 10 Toner's Adm'r v. So. Covington, etc., Co, 109 Ky. 41. Contra, Macdonald v. O'Reilly, 45 Ore. 589. 11 Atlanta, etc., R. Co. v. Gravitt, 93 Ga. 369. 12 Ala. G. S. R. Co. v. Burgess, 116 Ala. 509; St. L., etc., R. Co. v. Dawson, 68 Ark. 1; Mill's Adm'r v. Cavanaugh, supra; Smith v. Hestonville, etc., R. Co., 92 Pa St. 450. See Miller v. Meade Tp., 128 Mich. 98. the New York court, not applying the doctrine of imputed negligence, allowed a negligent administrator-beneficiary to recover.18 RECOVERY OF INTEREST ON ADVANCES By Brokers. - Stockbrokers who buy shares for customers on margin almost universally charge them with interest on the amount advanced. In the case of a stringency in the money market the interest so charged is usually in excess of the ordinary legal rate.1 In a recent article Mr. Harold C. McCullom carefully analyzes the legal relations involved in such transactions in New York, criticizes the theories which have been advanced to sustain the legality of such charges, and defends what he believes to be the correct theory. Recovery in New York of Interest in Excess of Six Per Cent Paid by Brokers on Money Borrowed to Purchase and Carry Stocks on Margin, 8 Colum. L. Rev. 281 (April, 1908). Except in the case of call loans, six per cent is the maximum legal rate of interest in New York. The first theory upon which the broker may seek to sustain his right to recover interest in excess of six per cent is that the money advanced is borrowed by the customer from the bank through the agency of the broker, who has agreed for his principal to pay the call rate of interest. Mr. McCullom finds this theory objectionable for several reasons. In the first place the New York decisions have repeatedly regarded the advance as an advance by the broker. Furthermore, the practice seems to be for the broker to lend his own funds, and, since the banks seldom loan more than eighty per cent of the market value of the stock and the margin required of customers is usually only ten per cent of the market value, the broker is in fact called upon to furnish at least a part of the advance necessary to carry the stock. The second theory regards the excess of interest as a commission. This excess cannot be regarded as a commission paid the broker for getting the loan from the bank, since the New York statute fixes the sum that may be charged in such cases at not over fifty cents on one hundred dollars. It would manifestly be unreasonable to regard this as indemnifying the broker for a commission paid by him to the bank. The third view is that the advance is really a call loan by the broker to his customer. Mr. McCullom finds that this theory does not fit the case because the New York statute excepting call loans from the usual legal rate applies only to amounts over five thousand dollars and then only when the rate agreed on is in writing. Moreover, call loans must be payable on demand, whereas it would seem that a stockbroker could not proceed to close out a sale on margin until a reasonable time after giving notice to his customer. 7 The author believes that the fourth theory presents the fewest difficulties, though he admits that it is not fully sustained by the authorities. This theory regards the excess of interest as reimbursement to the broker for an authorized expenditure actually made in obtaining money to loan to the customer. This expenditure, though not expressly authorized, is authorized by custom. What the broker is here doing is to charge the customer with the actual cost of obtaining the money in the money market. Such a charge has been held not to be usurious if the broker does not recover more than he has paid. But the broker does not pretend to charge each customer with the exact rate expended in effecting each particular loan. On the contrary, the excess charged is an approximation to the actual expense incurred; for example, by averaging the 13 Lewin v. L. V. R. Co., 52 N. Y. App. Div. 69. 1 Dos Passos, Stockbrokers, 270. 2 N. Y. Laws of 1879, c. 538; ibid. of 1882, c. 237, § I. 3 See Smith v. Heath, 4 Daly (N. Y.) 123, 126. 4 Markham v. Jaudon, 41 N. Y. 235, 240. 5 See Robinson v. Norris, 6 Hun (N. Y.) 233. 6 N. Y. Laws of 1895, c. 467. 7 N. Y. Laws of 1882, c. 237, § 1. 8 White v. Smith, 54 N. Y. 522; Hess v. Rau, 95 N. Y. 359. Thurston v. Cornell, 38 N. Y. 281. Contra, Jackson v. May, 28 Ill. App. 305. average daily rates paid by the broker for all loans. If, however, this is a reasonable approximation, there can surely be no legal objection to it. The conclusion that the broker cannot recover over six per cent unless he has laid out over that amount according to his daily average in procuring the funds which he advances seems entirely correct. In any state where the law permits a call rate there should be no difficulty in applying the author's theory and allowing the broker a recovery. But in no case should the broker recover the cost of borrowing money if he paid a usurious rate.11 10 BROKERS, RECOVERY IN NEW YORK OF INTEREST IN EXCESS OF SIX PER CENT PAID BY, ON MONEY BORROWED TO PURCHASE AND CARRY STOCKS ON MARGIN. Harold C. McCollom. 8 Colum. L. Rev. 281. See supra. CENTRAL AMERICAN PEACE CONFERENCE OF 1907. James Brown Scott. 2 Am. J. of Int. L. 121. COLLEGE FRATERNITY CHAPTER, THE LEGAL STATUS of A. Olcott O. Partridge. Discussing all the rights and liabilities of members and their methods of handling property. 42 Am. L. Rev. 168. CONTRIBUTORY NEGLIGENCE OF THE BENEFICIARY AS A BAR TO AN ADMINISTRATOR'S ACTION FOR DEATH. John H. Wigmore. 2 Ill. L. Rev. 487. See supra. EMPLOYER, THE LIABILITY of the. W. E. Walz. Maintaining that a proper application of the doctrine of respondeat superior would make employers' liability legislation unnecessary. I Me. L. Rev. 4. EXPRESS COMPANIES, CAN THEY BE COMPELLED TO MAKE PERSONAL DELIVERY? George W. Payne. Collecting authorities. 66 Cent. L. J. 275. HAGUE CONVENTION RESTRICTING THE USE OF FORCE TO RECOVER ON CONTRACT CLAIMS. George Winfield Scott. Including a definition of " contract claims." 2 Am. J. of Int. L. 78. HAGUE PEACE CONFERENCE, THE WORK OF THE SECOND. James Brown Scott. 2 Am. J. of Int. L. 1. HOSTILITIES, CONVENTION RELATIVE TO THE OPENING OF. Ellery C. Stowell. Including a collection of all the cases in which hostilities have been begun without a declaration of war. 2 Am. J. of Int. L. 50. INTERNATIONAL DIFFERENCES, CONVENTION FOR THE PEACEFUL ADJUSTMENT Amos S. Hershey. 2 Am. J. of Int. L. 29. OF. LABOR UNIONS, RECENT AMERICAN DECISIONS AND ENGLISH LEGISLATION AFFECTING. Chas. R. Darling. 42 Am. L. Rev. 200. MORAL DUTY TO AID OTHERS AS A BASIS OF TORT LIABILITY, THE. I. Francis H. Bohlen. 56 U. P. L. Rev. 217. NEUTRAL POWERS AND PERSONS IN LAND WARFARE, Hague ConvENTION CONCERNING THE RIGHTS AND DUTIES OF. Antonio S. de Bustamante. 2 Am. J. of Int. L. 95. PATENT APPEALS, THE PROPOSED Court of. Otto Raymond Barnett. Pointing out the great advantages of such a court. 6 Mich. L. Rev. 441. PERMISSIVE WASTE BY TENANTS FOR LIFE OR YEARS. Geo. S. Holmested. Col lecting the English and Canadian cases. 44 Can. L. J. 175. RAILWAY VALUATION IS IT A PANACEA? Jackson E. Reynolds. Contending among other things that the intrastate rates of an interstate railway should be under federal control. 8 Colum. L. Rev. 265. SURFACE WATER IN CITIES. THE RIGHTS AND REMEDIES ON PERMITTING, DIVERTING, INCREASING, AND OBSTRUCTING THE NATURAL FLOW. John R. Rood. 6 Mich. L. Rev. 448. UNION LABOR, DISCRIMINATION AGAINST — LEGAL? Richard Olney. Contending that the Adair case was wrong in holding unconstitutional a statute forbidding interstate railways from discharging men because of membership in a union. 42 Am. L. Rev. 161. See 21 HARV. L. REV. 370. UNION PACIFIC RAILROAD COMPANY, THE GOVERNMENT'S SUIT AGAINST THE. Edson R. Sunderland. Contending that the remedy for inefficient railway service lies not in prosecution under the Sherman Act, but in regulation. 6 Mich. L. Rev. 361. VESTED AND CONTINGENT REMAINDERS. Albert Martin Kales. Answering a criticism of a former article by Mr. Kales. 8 Colum. L. Rev. 245. See 20 HARV. L. REV. 243. WAR ON LAND, THE AMELIORATION of the Rules of. George B. Davis. 2 Am. J. of Int. L. 63. 10 Stevens v. Davis, 44 Mass. 211. 11 White v. Ault, 19 Ga. 551. II. BOOK REVIEWS. SELECT ESSAYS IN ANGLO-AMERICAN LEGAL HISTORY. By various authors. Compiled and Edited by a Committee of the Association of American Law Schools. In three volumes. Volume I. Boston: Little, Brown and Company. 1907. pp. x, 847. 8vo. As this book is the first attempt in this country to provide a text-book for the study of legal history, it is fitting, at the outset, to speak of its origin, its motive, and its method of construction, before we discuss the book itself. It is no doubt true that legal history has felt the uplift in methods of general historical study during the past fifty years. As Professor Beale says in one of these select essays, "The impulse given to legal study by the work of Savigny and his school in the last generation spread over the civilized world and profoundly influenced its legal thought. The Italians, the natural lawyers of the world, have increased their power by adopting his principles. In England a small but important school of legal thinkers has followed the historical method, and in the United States it has obtained a powerful hold. The spirit of the age, here too, has supported it. We are living in an age of scientific scholarship. We have abandoned the subjective and deductive philosophy of the middle ages, and we learn from scientific observation and from historical discovery. The newly accepted principles of observation and induction, applied to the law, have given us a generation of legal scholars for the first time since the modern world began, and the work of these scholars has at last made possible the intelligent statement of the principles of law." As Professor Beale was reading his essay at St. Louis in 1904, Professor Wigmore under the same auspices was reading his paper on "The Problems of Today for the History of the Common Law "2 in which he inquired, "What are the methods by which the further investigation of our history can be encouraged and its hitherto attained results be made broadly known and influential in the legal profession? Our inquiry may be stated in two questions: (A) How can we get more history written? and (B) How can we make known what is written?" In considering the second question a third was asked: "What can we do to teach the knowledge of history to students of law and that chiefly, of course, in our schools of law?" As a partial answer to his questions, Professor Wigmore proposed the compilation of a bibliography of material in periodicals and treatises dealing with legal history, the publication of articles to be selected from this bibliography, the translations of leading foreign legal histories, and the requirement that legal history be studied in law schools. In 1905 at the meeting of the Association of American Law Schools he embodied his ideas in a "Memorial for the Promotion of Historical Study and Research," and offered a resolution that the Association appoint a committee to prepare a series of volumes of Select Legal Essays. In the discussion of the memorial Professor Woodward, in the absence of Professor Wigmore, stated the purport of the memorial as follows: Professor Wigmore has two thoughts in mind. One is to encourage the study of legal history in the law schools. The other is to make the study of jurisprudence, both in and out of the law schools, easier. With those two aims in view, he makes several recommendations in his memorial, but I think there are only three of them that the Association may be expected to consider at this time. The first is that a committee of scholars shall map out a list of topics now most demanding further research, in order that the younger scholars may be thus supplied with intelligent lines for their ambitions to pursue. . . . Then, with reference to the study of historical jurisprudence in law schools, he says that the materials now existing in the English language must be collected from scattered corners and brought together in a series of accessible volumes. It is practically impossible to set a class of students at work on the material in its present form, 1 I Select Essays in Anglo-American Law, 558, 572. |