plaintiff is not entitled to the injunction. On the question of damages the court was evenly divided. Loranger v. City of Flint, 152 N. W. 251 (Mich.). A riparian proprietor has a right to appropriate, from the stream on which he is situated, only as much water as is reasonably necessary for his own domestic uses. Acquackanonk Water Co. v. Watson, 29 N. J. Eq. 366; Stockport v. Potter, 3 H. & C. 300. See 3 KENT'S COмM., 12 ed., 440. The fact that the riparian proprietor on a non-navigable stream is a municipality does not make its inhabitants riparian owners. Consequently, the municipality may not take the water for the domestic use of its inhabitants without compensating lower riparian owners. City of Emporia v. Soden, 25 Kan. 588; Stein v. Burden, 24 Ala. 130; Stock v. City of Hillsdale, 155 Mich. 375, 119 N. W. 435. See GOULD, WATERS, § 245. And though the location of a municipality on a stream may increase the number of individual riparian proprietors, that does not give to the municipality the right to appropriate water for its non-riparian inhabitants. City of Reading v. Althouse, 93 Pa. St. 400; Mannville Co. v. City of Worcester, 138 Mass. 89; City of New Whatcom v. Fairhaven Land Co., 24 Wash. 493, 64 Pac. 735. Contra, Canton v. Shock Co., 66 Oh. St. 19, 63 N. E. 600; Barre Water Co. v. Carnes, 65 Vt. 626, 27 Atl. 609. Again, the navigability of the stream, which gives the public a right of way, does not alter riparian rights. City of New Whatcom v. Fairhaven Land Co., supra; Fulton Co. v. State, 200 N. Y. 400, 94 N. E. 199; Kaukauna Co. v. Green Bay Canal Co., 142 U. S. 254. Contra, Minneapolis Mill Co. v. Board of St. Paul, 56 Minn. 485, 58 N. W. 33. Nor does title to the bed of the stream increase the right to use of the water. Sweet v. City of Syracuse, 129 N. Y. 316, 29 N. E. 289; Myers v. City of St. Louis, 8 Mo. App. 266. See GOULD, WATERS, § 246. Consequently the appropriation of water for all its inhabitants is a taking of property for which the municipality must make compensation. WILLS CONSTRUCTION EFFECT OF MAKING SAME PERSON SPECIAL AND RESIDUARY LEGATEE. A legatee who was to receive a special bequest and also one-half of the residue, predeceased the testatrix. The will expressly directed that the residue should contain any lapsed bequests. Held, that the lapsed specific legacy became intestate property. Dickinson v. Belden, 268 Ill. 105, 108 N. E. 1011. See As a testator, by making a general residuary clause, shows an intent to bequeath all his property, it is a general rule that all the property owned by him at his death, and not specifically bequeathed, together with all lapsed legacies, shall fall into the residue. Cambridge v. Rous, 8 Ves. Jr. 12. English v. Cooper, 183 Ill. 203, 208, 55 N. E. 687, 688. See 2 JARMAN, WILLS, 6 ed., 1046. Indeed this rule applies even if the legacy which has lapsed was described as an exception from the residue. Evans v. Jones, 2 Collyer 516. Since a lapsed residuary legacy cannot swell the residue, it necessarily becomes intestate property. Ketchum v. Corse, 65 Conn. 85, 31 Atl. 486. But a lapsed specific legacy to the residuary legatee does increase the residue and should come within the residuary bequest. In re Fassig's Estate, 82 N. Y. Misc. 234, 143 N. Y. Supp. 494. Since there is intestacy as to the deceased legatee's share of the residue, this does not involve taking property from him in one guise, to return it in another. Any other rule is contrary to the intent of the testator in making the residuary clause. Hence it is submitted that the principal case is wrong, though it is in accord with the trend of authority. See Dorsey v. Dodson, 203 Ill. 32, 67 N. E. 395; Craighead v. Given, 10 Serg. & R. (Pa.) 351. It the more clearly defeats the intent of the testatrix in the principal case, since the will expressly stated that lapsed legacies should fall into the residue. -- ATTORNEY AND CLIENT WITNESSES PRIVILEGED COMMUNICATIONS clients employed an attorney to represent them in matters connected with the investigation of election frauds, and in addition to act as counsel for three men who had been indicted for such frauds. Later before the grand jury, the attorney refused to disclose the identity of the clients who employed him to represent the three indicted men, asserting his privilege. He was sentenced for contempt of court and now applies for a writ of habeas corpus for his discharge. Held, that the petitioner be discharged. Ex parte McDonough, 149 Pac. 566 (Cal.). That the privilege of an attorney not to disclose communications of his client extends only to communications made in confidence as a part of the purpose of the client to obtain legal advice, is well established. Hatton v. Robinson, 14 Pick. (Mass.) 416. See Hager v. Shindler, 29 Cal. 47, 64. Still, the mere fact of the relationship should be considered a communication. See 4 WIGMORE, EVIDENCE, 2313. Hence, if the client's name is given in confidence, it is within the application of the rule. However, if the attorney purports to represent one of the parties at bar, since each party to a suit has a right to know with whom he is dealing, the public policy in favor of preserving the sacredness of communications between client and attorney is overborne. Hence the attorney must, upon examination, disclose the name of his client. Levy v. Pope, Moody & Mal. 410. Cf. White v. State, 86 Ala. 69, 5 So. 674. See 4 WIGMORE, EVIDENCE, § 2313. But where it is undisputed that the attorney neither represents a party, nor has previously represented a party concerning the case at bar, there seems little reason why it should be made an exception to the established rule of privilege. Foote v. Hayne, 1 C. & P. 545, 546; In re Shawmut Mining Co., 94 N. Y. App. Div. 156, 87 N. Y. Supp. 1059. See In re Malcolm, 129 N. Y. App. Div. 226, 113 N. Y. Supp. 666, 668. But the weight of authority is contra. Satterlee v. Bliss, 36 Cal. 489; Mobile & Montgomery Ry. Co. v. Yeates, 67 Ala. 164; United States v. Lee, 107 Fed. 702. BOOK REVIEWS PROPERTY AND CONTRACT IN THEIR RELATIONS TO THE DISTRIBUTION OF WEALTH. Volumes I and II. By Richard T. Ely. New York: The Macmillan Company. 1914. pp. xlvii, 474; vii, 521. Dr. Ely's work contains an enormous amount of material, the result of many years of study and reflection; it is the production of mature moderation, with a confident hope in the possibilities of collective social purpose. Property is to be regarded as derivative in the modern social state; it has no inherent indefeasible claims and is not antecedent to the society which produced and protects it. Its enjoyment is therefore subject throughout to such control as may be necessary for the accomplishment of social purposes. It may be taken or limited or used as the community finds necessity, subject only to so much tenderness as is possible. How much is in fact possible, what uses demand compensation, cannot be stated in advance. We have certain regulative principles, nothing more; we must not forget that men will build only when they know the foundation is secure. Every sudden revolutionary invasion of the individual's customary expectations shakes a little the whole of society, puts some doubt of the future into the hearts of the living. Custom, therefore, creates a genuine obligation on society to respect what it has created. As to right of contract, the same applies, though we need not be so fearful of vested rights. Liberty has no significance except in society; it is the right to do what society finds best for itself and for the actor to let him do. Society may indeed go so far as to forbid one from contracting while under economic pressure, though it has done nothing to relieve the pressure itself. If one must take unhealthy work or starve, society may forbid the contract, while it leaves no alternative but starvation. This may be necessary as a condition of preventing such pressure from arising; it will remove the possibility of successfully exploiting the victims. Indeed the law has always recognized limits of the power to contract; the question is of the application of the principle. In practice we may safely be radical; more radical than in respect of property, in which we have vested rights to protect. Throughout the book there are interesting suggestions in detail, always moderate, never pungent, seldom novel. One reads with assent and without surprise; one is seldom irritated or stimulated to the "intolerable labor of thought," but one is conscious of company with a writer of capacious mind, sound intelligence and the utmost good faith. The book is most useful for reference and might be the means of conversion to conscientious Bourbons, but it can hardly be said to contribute fundamentally to the difficulties which are now in the front of discussion. Perhaps no such book can do so; discussion is concerned in more partisan spirit with more specific problems. A book like Taussig's Economics, being a general compendium and designed as a restatement of the science as it stands, may afford to be removed from contention; but this is scarcely such a work. It would gain in interest and effect by a more decided and positive method. Of chief interest to lawyers is that part which concerns the relation of the constitutions to property and contract. In these the author sides, definitely enough, with the liberal construction of the Bill of Rights. However, the vague clauses which have formed the basis for so much dispute are in his opinion amply flexible for all necessary adaptations. Social purposes more directly regulative of the individual than any we have known find no hindrance in these, if properly understood. It is true that hitherto we have had disappointments, especially in the state courts, but the Supreme Court has been wise and moderate, saving the Bakers' Case, and we have good reason to hope that the judges will in the future adopt a more understanding posture toward legislative experiments. They may be safely trusted in their interpretation of the Constitution to allow for the realization of all reasonable collective purposes. Indeed it may be asked whether they might not safely be given in form a power they possess in fact and become recognized as a kind of legislative chamber whose concurrence is necessary for radical legislation. The last suggestion, if it be meant seriously, is much too naïve for such a work; it scarcely requires comment. The whole treatment of the relation of the Bill of Rights to the regulation of contract is inadequate. Experience does not justify any optimism in this respect either as to the Supreme Court or elsewhere; conservative changes in public opinion are readily reflected by the courts and radical changes get tardy response. If the Bill of Rights is to continue to give to courts the power to impose upon legislation their own views of public policy, it can only be at the expense of their present exemption from genuine responsiveness to public opinion. If, on the other hand, the Bill of Rights does not do this, it accomplishes practically nothing, because if it means no more than that no legislation shall be valid which does not represent a reasonably disputable position in policy, such legislation seldom arises. It is of course true that an uncompromising but powerful minority may force its will upon the legislature, but in most cases they must press their claims, at least avowedly, as part of a plan of general utility, and support themselves with a show of reason, before they can succeed. It is extremely doubtful whether the rare cases, in which they cannot appeal to a reasonable theory, justify the dangers of irritation and political strain which experience shows to result from the function as it exists. A mild optimism as to the future conversion of judges to the writer's own views seems hardly a sufficient faith for practical purposes. The issues generally concern class conflicts in which men cannot be depended upon to be sympathetic with other class purposes; not even judges, though their record is much more creditable than many suppose. If the fight in the legislature, where all are represented, is to be transferred at its conclusion to a tribunal which is drawn from one class only, and properly so drawn, the strain upon government becomes greater than one ought lightly to accept. In any case we are entitled to more of what Dr. Ely likes to call a "realistic" treatment of so momentous a problem. LEARNED HAND THE HAGUE ARBITRATION CASES. By George Grafton Wilson. Boston: Ginn and Company. 1915. pp. x, 525. This is a collection of the preliminary and final documents in the cases submitted to the Hague tribunal. The preliminary documents are the agreements -technically termed compromis - under which the cases have been submitted, and the final documents are the formal awards. Heretofore these papers have been difficult to find. This volume collects them, and presents an English translation of such as have no authoritative English text. No commentary is given; and it is obvious that the editor's purpose has been simply to furnish a text for the use of students and other investigators, fruitful basis for historical and legal dissertations. The editor has added maps, the arbitration conventions of the two Hague conferences, and an index. The result is a useful book, and indeed an indispensable one. a A short preface says that "the fifteen cases upon which the court has acted show that the resort to arbitration as a means of settlement of international disputes has become common in the early days of the twentieth century," that "financial claims have been passed upon frequently, but such questions as the right to fly the flag, the violation of territory, the delimitation of boundaries, and other questions involving the fundamental rights of states have likewise been considered," that "in about one-half the cases no nationals of the parties to the controversy have sat as arbitrators," that "nearly one-half the cases have been before three judges, and all but one of the remaining cases before five judges," that "of the six arbitrators sitting in the cases decided in 1913 and 1914, each arbitrator had previously sat upon at least one case," that "France has been a party in six cases, Great Britain in five, the United States in four, Germany and Italy in three each, and several states in two or only in one," and that "seventeen states in all have been parties." These extracts from the preface indicate, as the editor says, "an established confidence in the tribunal." Reasons for the growth of confidence in the Hague system of settling disputes can be found in the awards. As the system does not exclude nationals from a tribunal, and as arbitral tribunals, even when not partly composed of nationals, have often made awards that were obviously the result of compromise, the Hague system has not always been looked upon with the highest hope. Yet the actual awards have not justified the fears so naturally felt. The awards cannot fairly be called compromises. Further, the lack of permanence in the court — a defect suggesting that an evanescent body of judges might have the same irresponsibility as jurors - has been somewhat overcome by the growing practice of selecting arbitrators who have already served. Thus there may arise in time an approximately permanent court and a systematic body of judicial decisions. In order that the Hague awards may become authoritative precedents after the fashion of decisions rendered where the Anglo-American system of law prevails, or even in order that they may have the merely persuasive force which is conceded to decisions in the Civil Law countries, there must be reports. In no other way can the investigator learn upon what proposition of law the tribunal relied for the solution of the dispute submitted to it. By careful study the ratio decidendi can be extracted from the compromis and the award. Yet this is seldom easy. The compromis, save when the dispute is merely on the construction of a treaty, usually submits the problem in terms not indicating the agreed facts; and although the award invariably concludes with a clear judgment giving money, fixing a boundary, or otherwise determining the rights of the parties, the award does not always state briefly either the facts embodying the problem or the proposition of law relied upon as the major premise sustaining the decision. Thus this collection of compromis and awards incidentally raises many interesting questions as to the framing of headnotes embodying the doctrines to which these cases will be cited in future arguments and textbooks. Perhaps the case of The Carthage (p. 352) is the one in which the award is so framed as most easily to enable the reader to extract the ratio decidendi; and perhaps the case of The Manuba (p. 326) is next to it in resemblance to an English or American reported case. Those two cases ought to be read by any one wishing to learn something about Hague procedure; for their compromis and awards, though brief, give an adequate picture of the sort of formality which is customary in such documents, and, besides, they deal with questions just now of practical interest, — questions of neutral commerce, contraband, right of search. It only remains to add that, although thus far the awards at the Hague have seldom cited authorities, as is natural enough, since they have dealt frequently with mere questions of fact and have almost never required any but the most elementary propositions of law, - and although, for the same reasons, they do not yet materially add to international law as a science, nevertheless they cannot be read without great respect for the learning and spirit underlying them, nor without a timely appreciation of these proofs that nations do recognize some rules and do submit some disputes to the test of reason. EUGENE WAMBAUGH. REPORT UPON UNIFORMITY OF LAWS GOVERNING THE ESTABLISHING AND REGULATION OF CORPORATIONS AND JOINT STOCK COMPANIES IN THE AMERICAN REPUBLICS. By Roscoe Pound. Pan-American Financial Conference. 1915. pp. 13. There is need in every business community of some legal method by which associates may carry on a business undertaking with a simple method of suing and being sued, and of receiving and conveying property; without interruption to the undertaking through the death of an associate or the sale of his interest; with some provision for concentration of management and, above all, with a limitation of their liability. There is at present no uniformity in the American Republics as to this method. Commerce, says Professor Pound, is universal, but the laws regulating the instruments of commerce are local. He outlines different systems of law, showing that the Latin-American law gives recognition to commercial partnerships as legal entities, contrary to the orthodox conception in the Anglo-American law, and stating that the Anglo-American view of incorporation as a grant by the state of an important privilege has led to regulation by the state which would be regarded as excessive in Latin America, where it is recognized that the law has simply confirmed the lay conception of a business composite unit. He further points out that in Latin America administrative bodies, rather than the courts, largely supervise such units. |