which this question is raised. It is said: "They are not subjects of trade and barter as something having an existence and value independent of the parties to them." In other words, intrinsic value would seem to be the criterion.

Why is not this language applicable as well to a lottery ticket? Is a lottery ticket subject to trade and barter as something having an existence and value independent of the parties to it? The value of an insurance policy is independent is independent of the paper itself and rests upon the assurance of the company issuing it that it stands ready with its capital to pay to the holder a certain sum of money upon the happening of a certain contingency. In what else does the value of a lottery ticket consist? It contains, as does the insurance policy, a promise to pay upon the happening of a contingency, that contingency being the coincidence of the number of the ticket with a number to be drawn from a wheel at a future day. Value is imparted to the ticket by the capital of the company operating the lottery. The contingency is as likely to happen (at least theoretically) in the one case as in the other, and so long as that possibility continues, so long do the policy and the lottery ticket have the value imparted to them by the parties issuing them. When, by the terms of the contracts, the obligation to pay is terminated, the paper evidences of the contracts are simply paper, of no value what

ever. . . .

There seems no escaping the conclusion that the distinction between lottery tickets and insurance policies is one based upon considerations of public policy. In this the Supreme Court has, not avowedly, it is true, but nevertheless as effectually, departed from a rule of construction laid down in the very beginning, and always, until now, followed, viz., that in determining the validity of an attempted exercise of power, the question cannot be affected by considerations of expediency. It is a startling departure from a long-established canon of construction, and one that of itself should ment. . .

excite com

Secondly. Can the word "regulate" have been intended by the framers of the Constitution to comprehend absolute prohibition?

In no case decided by the Supreme Court, and in none of the debates of the constitutional convention, do we find a hint of any other object than to facilitate intercourse by securing harmony.

Would the prohibition of intercourse facilitate intercourse? The question is too absurd to be asked seriously. . . .

Thirdly. Does not the act prohibiting the transportation of lottery tickets trench upon the powers reserved to the States?.

The Supreme Court has ever recognized the regulation of lotteries as peculiarly within the police power of the States, and however much we would welcome any legislation that would effectually wipe out the "widespread pestilence of lotteries," yet if the power to enact such legislation does not exist under the commerce clause, or some other clause of the Constitution, let us not attempt to stretch the Constitution to give that power to Congress. The commerce clause empowers Congress to regulate commerce, not the public morals.

IN an article dealing with "The Physician as an Expert." in the Michigan Law Review for April, Professor H. B. Hutchins well describes what should be the attitude of any expert witness. He says:

The functions of the expert are in a sense judicial and should be so regarded by him. He is called into the case, in theory at least, not as a partisan or advocate, but to aid the jury by his opinions in reaching correct results. The fact that the jury are not bound to be governed by what he says, in no way relieves him of responsibility or changes his relation to the controversy. Although a witness whose testimony is to be considered by the jury like that of any other witness, he should always maintain the judicial attitude. The frequent failure of the expert to do this is undoubtedly the cause of much of the unfavorable comment from the bench in regard to this class of testimony, and has served perhaps more than anything else to bring the

expert witness into disrepute. So long as the present method of selecting and paying experts continues, but little change for the better can probably be expected. The change will undoubtedly come when the expert is appointed and paid as an officer of the court and is by law made a part of the judicial machinery of the State.

On the question of "Keeping Photograph and Measurements of Accused after His Acquittal," Case and Comment for April says editorially:

The denial by the courts of the application of Molineux for a mandamus to compel the removal of his photograph and measurements from the records of the superintendent of State prisons has attracted wide attention and much adverse comment from the press. The decision by the court of appeals of New York to this effect is, however, fully justified by the opinion of Judge Vann.

The injustice of perpetrating the photograph and Bertillon measures of an innocent man after his innocence has been adjudged may be strongly urged, but it is clearly a matter for the Legislature to say whether or not public policy requires such records, once made, to be preserved. The perpetuation of a judicial record of the trial of an innocent man may, as the court well points out, be very unpleasant to him, but such records are always preserved. It is not likely to be argued that such records ought to be expunged. The record itself, though it may be humiliating to the person who has been accused, is, nevertheless, his shield against a repetition of the same accusation after his acquittal. But the retention of his photograph and measurements among those kept for convicts seems to be an unnecessary humiliation, which the public does not require him to endure. It is unquestionably a matter for the Legislature to determine, and no good reason appears why the Legislature should not provide for the removal of the portrait and physical measurements of one who has been adjudged innocent from the portraits and records of convicts.

IN the Columbia Law Review for April Professor Francis M. Burdick follows up in an article entitled "Codification of the Doctrine of Revision," the discussion which for several months has been raging-in scholarly and friendly fashion-between Professor Williston, of Harvard, and himself over the question of "Revision for Breach of Warranty."

Professor Burdick maintains "that only Iowa and Maine can be counted as unequivocally committed to the Massachusetts rule; and that but three other States show, at the present time, any decided inclination in favor of that rule," and asserts that because "all of the Federal Courts, as well as those of nineteen State and Territorial jurisdictions, have unhesitatingly adopted the English rule, and several others have indicated, in dicta, their approval of that rule, a very powerful argument is afforded for incorporating it rather than the Massachusetts rule in an American Code of the Law of Sales."

I submit (he says), that the prevailing rule should be incorporated into the proposed Code of the Law of Sales in this country: First, because it is the prevailing rule, and came to prevail for the reasons and in the way above described; second, because, it is the rule of the English Code, and uniformity on this important topic in commercial law is most desirable; third, because it accords with the general principles of the law of contracts; fourth, it holds parties to contracts which they have honestly and deliberately made; and, fifth, because it treats both parties with perfect fairness and works no injustice to either.

AN important contribution on a pressing. question of governmental control of corporations is the draft filling some ninety pages of "A Proposed National Incorporation Law," by Professor Horace L. Wilgus, in the Michigan Law Review for April. The rational point of view of Professor Wilgus is indicated by the following extracts from his short foreword to the act itself:

It is not the duty of the government to act as a parent of its people; neither is it

the duty of the government to clothe a part of its people with great powers and privileges, peculiarly susceptible of abuse, without providing reasonable protection against, and adequate remedy for, such abuse. The writer believes that the corporation is the most efficient business machine yet invented; and its very efficiency makes it, in the hands of the honorable, most beneficent; but in the hands of those otherwise disposed, most oppressive. The vast majority of business men are honorable, and need but little, if any, restraint beyond their own consciences; there are, however, many others who are bent upon securing and exercising undue advantage over their fellows; the former, not needing restraint, will not, or should not, feel hampered by such restraints as are made necessary by the latter; while the law cannot make men better, it may make it more difficult for them to injure their neighbor,-and this is the standpoint from which many provisions herein should be judged. Many of the provisions are designed to meet the evils that the investigations of the Industrial Commission, the Interstate Commerce Commission and the Commissioner of Labor have found to exist,-over-capitalization, unjust discriminations, predatory competition, oppressive combinations, unjust, unsafe, and unsanitary conditions of labor, and insufficient publicity either for safe investment or proper legislation.

IN the April number of the Harvard. Law Review, J. L. Thorndike of the Boston Bar, discusses at considerable length two recent English cases, cited below, involving the question of indemnity arising through the registration by a corporation of a forged transfer of stock, and maintains that the reversal of Lord Alverstone's opinion, cited below, was wrong.

In two recent cases (says Mr. Thorndike), the question has come before the English courts whether a corporation that has been induced to register a forged transfer of stock, or to allow a transfer of stock on its books under a forged power of attorney, is entitled to indemnity from the person that has induced it to do so, when he has acted

in good faith and in the belief that the document was genuine. In one [Starkey v. Bank of England (1903) A. C. 114] it was he'd that the person who induced the corporation to allow him to transfer the stock under the forged power of attorney thereby represented that he had authority to make the transfer, and that this representation imported a contract that the authority under which he acted was valid, and made him answerable for the damages sustained by the corporation. In the other [Sheffield Corporation v. Barclay (1903) 2 K. B. 580; reversing the decision of Lord Alverstone, C. J. (1903) 1 K. B. 1] it was held that the person who in similar circumstances induced the corporation to register the forged transfer made no representation or contract that the document was genuine and was not bound to indemnify the corporation. . .

There is one case in this country [Boston & Albany Railroad Co. v. Richardson, 135 Mass. 473] in which the question was decided [affirmatively that] a company could recover damages from a person who had induced it to register a transfer of shares under a forged power of attorney or a forged transfer, where he acted in good faith.

THE Modern Law of Charities as Derived from the Statute of Charitable Uses" is the subject of an excellent article by Rupert Sargent Holland in The American Law Register for April.

The Statute 43 Eliz. c. 4, passed in 1601 (says Mr. Holland), was long regarded as limiting the classes of legal charities. It recited that land, money, and other property had been given for various charitable purposes, which it enumerated, and authorized the appointment of commissioners to inquire into such gifts and make orders for their proper application. The list of charitable purposes contained in it has always been treated as an expression by the Legislature that all such purposes are lawful charitable purposes, and a guide to the court in deciding on the legality of other purposes.

The list enumerated in the statute is as follows:

an "inquisition of witnesses"-summoned, not to decide upon evidence, but to prove facts.

The policy of the law, in requiring more than one witness to establish a fact, is as old as law itself. . .

The old law, however, required twelve witnesses to agree upon a disputed fact, in order to establish it; and so it was that, when the first twelve witnesses summoned failed to agree, they were "afforced" by summoning additional witnesses, till twelve were found that would agree. This grew to be inconvenient; and some six hundred years ago the rule requiring twelve witnesses to concur was relaxed, and the concurrent evidence of a majority of the twelve witnesses was taken as sufficient.

This was unquestionably a sensible innovation and a decided improvement; but, in the latter part of the fourteenth century, during the reign of Edward III., the English law courts, with their characteristic zeal for upholding the forms of antiquity, even when. the substance had been rejected, restored the rule requiring twelve concurrent witnesses to establish a disputed fact. But these old judges were not so impractical a set as their pedantic adherence to ancient forms might indicate; and, being unwilling to resort to the inconvenient and expensive "afforcing" process, to obtain twelve witnesses who would agree, they resorted to the simpler and more direct method of compelling the original twelve to agree, whether they would or not, by holding them "sine cibo et potu" until they did agree!

The very reasons upon which this remarkable rule was based showed the courts' recognition of the wisdom and propriety of the majority rule; for it was said that the minority were inexcusable in holding out against the majority; that, as they were all merely witnesses to the same fact, if the majority agreed upon what that fact was, nothing but stupid obstinacy, "impious stubbornness," or corruption, could account for the minority taking a different view about a matter of plain fact and not involving opinion or judg

ment at all!

Thus was the "unanimity rule" established; and it is to an origin, based upon such essentially different conditions and upon such absurd and illogical reasons. characteristic of an age of intellectual night, that the modern advocates of unanimity of verdicts in civil juries cling with superstitious veneration.

THE progress of the "Proposed Reforms in Marriage and Divorce Laws," from the report of the Committee on Jurisprudence and Law Reforms at the meeting of the American Bar Association in 1882 to the present time, is set forth by Amasa M. Eaton in the April number of the Columbia Law Review. Since 1892 reform in marriage and divorce laws has been one of the most important subjects before annual Conferences of the State Commissions on Uniformity of Legislation. Several excellent acts have been drafted by these Conferences, none of which, however, have been adopted by any of the States.

Referring to one of the acts proposed by the Twelfth Conference, 1902, Mr. Eaton says:

Even though no State has yet adopted in its entirety the Divorce Procedure Act recommended by the Conference, some of its features have been adopted, and probably more will be, and more States will follow the examples set, and adopt some of its features that other States have adopted. However, even should no general adoption of our act result, it cannot be said that the work of the Conference is a failure. It will have shown, at least, that such a law is not the one called for. If so, the question then is, what is the legislation that is called for? Why should not the general rule suggested, be adopted, that any competent court, having actual jurisdiction over the parties, shall have jurisdiction over divorce between those parties, irrespective of the vexatious question of domicile? Would not the cause of justice and the peace and quiet of the State, be better subserved by such a rule?