because of a possibility that the jury might be prejudiced by the admission of such questions. If the questions are relevant and asked in good faith it seems unreasonable to say that they were improper because they might result unfavorably for defendant. Such a conclusion results from a balancing of equities, and the harm done to the defendant is a matter of degree.

Harvey I. Tutchings, '18.

1

Trusts: Validity of oral trusts in land. Oral trusts are of two kinds, those relating to personalty, and those relating to land. Oral trusts in personalty are valid in all jurisdictions. It is the purpose of this note to treat only of parol trusts in land, as to the validity of which there seems to be no unanimity of authority.

The Virginia court in Fleenor v. Hensley, 93 S. E. (Va.) 582 (1917), holds that this species of trust is valid. The facts in this case may be summed up as follows: A agreed with B and C to purchase land of B at execution sale, to hold the land in trust for the wives of B and C, and to transfer it to them as soon as the purchase money was paid by them to A.

It is a mooted question whether at common law trusts in land could be raised by parol, but there seems to be no good reason for doubting that such trusts were valid. However, by the seventh section of the English Statute of Frauds, 29 Car. II, c. 3, oral trusts in land were expressly declared void.

In the United States many of the decisions seemingly at variance, may be reconciled by consulting the statutes of frauds of the particular states. In those states which, like New York, have substantially adopted the seventh section of the English statute, the courts hold that such trusts or the evidence of the existence of such trusts, must be in writing. An exception to the rule exists where there is fraud, accident, undue influence or mistake in the original transaction which will warrant the interposition of courts of equity to compel the performance of the oral promise by fastening a constructive trust upon the conscience of the grantee.5 The fraud in these cases must be positive, and the evidence of the trust ex maleficio, must be clear,

'Kilpin v. Kilpin 1 M. & K. (Eng.) 520 (1834); Matter of Carpenter, 131 N. Y. 86 (1892); Bostwick v. Mahaffy, 48 Mich. 342 (1882); Warburton v. Camp, 55 Super. Ct. (N. Y.) 290 (1888), affd. 112 N. Y. 683 (1889).

See 1 Perry on Trusts, sec. 75.

3Section 242 of the Real Property Law of New York: "An estate or interest in real property, other than a lease for a term not exceeding one year, or any trust or power, over or concerning real property, or in any manner relating thereto, cannot be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the person creating, granting, assigning, surrendering or declaring the same, or by his lawful agent, thereunto authorized by writing."

Kingsbury v. Burnside, 58 Ill. 310 (1871); McVay v. McVay, 43 N. J. Eq. 47 (1887); Pinney v. Fellows, 15 Vt. 525 (1843); Eagle Mining Co. v. Hamilton, 14 N. Mex. 271 (1907); Throckmorton v. O'Reilley, 55 Atl. (N. J.) 56 (1903); Hutchins v. Van Vechten, 140 N. Y. 115 (1893); Forster v. Hale, 3 Ves. Jr. (Eng.) 696 (1798), the leading English case.

Ryder v. Ryder, 244 Ill. 297 (1910); Brock v. Brock, 90 Ala. 86 (1889); Rose v. Hayden, 35 Kan. 106 (1886); Goldsmith v. Goldsmith, 145 N. Y. 313 (1895); Newis v. Topfer, 121 Ia. 433 (1903).

definite and unequivocal. The courts in some few states hold that an agent may be empowered to purchase land for his principal by an oral agreement, and that such agreement creates valid trust in the land so purchased. These courts rest their decisions upon a breach of the relations of trust and confidence between the agent and principal.7

In all jurisdictions it seems that resulting or constructive trusts are enforced by the courts. These trusts arise, not by any words or agreement, but the law implies such trusts from all the circumstances of the case, as where a purchaser of land gives the entire or greater part of the purchase money. (A small part is not sufficient.)8 If there is a parol agreement for a trust, and there are sufficient circumstances to create a resulting trust, the fact that such oral agreement exists does not take the transaction out of the category of resulting trusts.9

Among the states not adopting an express provision in their statutes of frauds similar to section seven of the English statute, there is a division of authority." 10 Some hold that such transactions come within another section of the statute, namely section four." Other jurisdictions, however, like that of the principal case, hold oral trusts are valid and enforceable in courts of equity. Whether the declaration of trust must be contemporaneous with the making of the deed is a question which depends upon the particular jurisdiction. The decisions in these states may be classified under two heads; first, those which hold that a constructive trust is raised by law on account of the abuse of confidence placed in the one purchasing, and not through any oral agreement creating the relation of principal and agent,12 and second, those which base their decision not on any constructive trust, but upon the oral agreement itself.13 The principal case falls within this latter class.

Until recently the decisions in Virginia have been at variance. The rule laid down in the principal case was definitely established in Young v. Holland,14 which has since been uniformly followed.15 To establish such an express trust in realty, by parol evidence, the declaration must be unequivocal and explicit, and established by clear and convincing testimony.16

"Stambaugh v. Davis, 163 Ill. 557 (1896).

Jane M. G. Foster, '18.

"Morris v. Reigel, 19 S. Dak. 33 (1904); Bryan v. McNaughton, 38 Kan. 98 (1887); Boswell v. Cunningham, 32 Fla. 277 (1893).

Tillman v. Murrell, 120 Ala. 239 (1897); Dudley v. Dudley, 176 Mass. 34 (1899).

'Long v. Mechem, 142 Ala. 405 (1904).

10They are Connecticut, Delaware, Kentucky, North Carolina, Ohio, Tennessee, Texas, Virginia and West Virginia.

"Sherley v. Sherley, 97 Ky. 512 (1895).

12 Johnson v. Hayward, 74 Neb. 157 (1905); Thompson v. Thompson, 54 S. W. (Tenn.) 145 (1899).

13Gardner v. Rundell, 70 Tex. 453 (1888); Owens v. Williams, 130 N. C. 165 (1902). But see Gaylord v. Gaylord, 150 N. C. 222 (1909).

14117 Va. 433 (1915).

15Shield v. Adkins, 117 Va. 616 (1915); dictum in Berry v. Berry, 119 Va. 9 (1916).

16Taylor v. Delany, 118 Va. 203 (1915).

Book Reviews

Cases in Quasi Contract. By Edward S. Thurston, Professor of Law in the University of Minnesota. American Casebook Series. West Publishing Company. St. Paul. 1916. pp. xv, 622. Thirty years ago it would have been impossible to compile a bibliography of separate works on quasi-contract for the reason that there were no separate works devoted to the subject. Such a bibliography at the present time consists of only six titles; the text books of Keener (1893) and Woodward (1913), and the casebooks of Keener (1888-9), Scott (1905), Woodruff (1905, 2d ed. 1917) and Thurston (1916). To these books may be added some, though not many, articles in periodicals.

The first scientific and effective treatment of the differentiated subject-matter is found in Professor Keener's article on "QuasiContract, its Nature and Scope" (7 Har. L. Rev. 57, May, 1893), later incorporated as the introductory chapter to his "Treatise on the Law of Quasi-Contract." The article is an outstanding landmark in our law. To the need of a separate treatment of the subject Professor Ames had called attention in 1888: "The equitable principle which lies at the foundation of the great bulk of quasi-contracts; namely, that one person shall not unjustly enrich himself at the expense of another, has established itself very gradually in our Common Law. Indeed one seeks in vain to-day in the treatises upon the Law of Contract for an adequate account of the nature, importance, and numerous applications of this principle."

The material was at hand; it was embodied in the Reports and discussed by text writers, but it had been assimilated by a fiction to the law of true contract, to which it had no essential relation. Thus Blackstone characterizes the contract obligation as embracing "Presumptive undertakings or assumpsits, which though never perhaps actually made yet constantly arise from the general implication and intendment of the courts of judicature, that every man hath engaged to perform what his duty or justice requires." (Black. Com., Bk. III, p. 162). The first edition (1826) of Chitty on Contract also shows the same confusion; the statement that in contract a "common intent" is necessary, being immediately followed by the statement that "in many cases the law will imply the assent," which latter statement he illustrates, without discriminating, in part by instances of properly inferred true assent, and in part by instances of the imposition of a duty where there was no proper inference of true assent at all. Later writers perpetuated the obfuscation. Mrs. Carlyle once said, "It is the mixing up of things which is the Great Bad." The distinction was not sharply made and systematically presented until Professor Keener performed that service.

This new casebook by so accomplished a teacher as Professor Thurston is naturally a welcome addition to the meagre number of books on the subject. In quasi-contract, more than in other branches of the law, any intelligent selection of cases will invite further recognition of the scope and importance of the subject; be helpful for instructional purposes; and, because of the relative scantiness of the litera

ture of the subject, make easier the task of the writer, who shall sometime undertake to write a comprehensive and exhaustive treatise on the subject.

The making of a casebook is largely the process of elimination of cases by a careful selection. A difference of preference as to cases chosen does not necessarily imply criticism of the compiler's choice. Professor Thurston's book is useful and generally adequate. One is struck, however, by the exclusion of any case on benefits conferred in the performance of the ultra vires contracts of either municipal or private corporations. These topics are dismissed with a reference to a textbook, to articles in periodicals, and to a casebook on corporations. Particularly to be regretted is the omission of Sinclair v. Brougham (1914) A. C. 398, in which there is an elaborate discussion of the question whether recovery can be had at law for benefits conferred under ultra vires contracts of private corporations. The opinions of Lord Chancellor Haldane and Lord Sumner in the case are of special value and interest, not only because of the rule applied but also for the historical comment. Probably the most chaotic situation in the whole law of quasi-contract exists with reference to the right of recovery for benefits conferred in the performance of ultra vires contracts of municipal corporations. It would be a hopeless task to compass successfully within the limits of a casebook a satisfactory group of cases on this vexatious topic; but it would be helpful to include at least a very few cases as a method of merely presenting the problems of law and public policy involved, and to serve as a basis for a statement of the probable reasons for the irreconcilable difference of opinion upon the question.

The almost equally troublesome question of recovery back of taxes alleged to have been paid under compulsion of law is represented by one case only and by one and one-half pages of annotations to it. This topic would seem to require a fuller submission of case material for proper presentation of the subject. A too extensive use of annotations, composed by an editor transmutes, by so much, the casebook into a textbook. Footnotes, dealing with other cases, except upon subsidiary features of the problem, should where possible consist of facts and arguments quoted from judicial opinions.

An inspection of the book suggests further comment that may be of interest to the users of the book and to the editor in preparing a future edition. McArthur v. Luce (p. 72), the doctrine of which is questionable, is probably shaken by the later case of State Bank v. Buhl, 129 Mich. 193 (see 15 Mich. L. Rev. 234 note). Contra to Dorsey v. Jackman (p. 141) is Davis v. Lee, 52 Wash. 330. The early South Carolina. distinction between mistake of law and ignorance of law, (p. 213, note) is later doubted in Cunningham v. Cunningham, 20 S. C. 317. The quoted remark of the Court from Morgan Park v. Knopf, 199 Ill. 444 (p. 227, note) is severely criticized and said to be probably obiter, in 1 Illinois L. Rev. 335-6. Hayes v. Gross, (p. 263, note) was affirmed in 162 N. Y. 610 upon the opinion in the Appellate Division. The footnote title, "Measure of Damages" (p. 320), is unfortunate; for the measure of the recovery sought was not damages for breach of contract, but the value, in a quasi-contractual action, of benefits

conferred. Contra to Hawley v. Moody (p. 321) is Lockwood v. Barnes, 3 Hill (N. Y.) 128, though this case is what biologists might call a "sport." The singular doctrine of Byrd v. Boyd (p. 406), found in a few southern states, is repudiated in Timberlake v. Thayer, 71 Miss. 279, and is there intimated to have arisen out of ante-bellum social conditions in the South.

Except for such defects or omissions as have been touched upon, Professor Thurston's casebook is an intelligent and useful massing of material for the study of the subject. Some parts are unusually complete and satisfactory, for example, the material on recovery of money paid under mistake as to the genuineness of negotiable paper.

One might remark that he has presented some novelty in arrangement of the contents of the book, but if that be a fault it is one he shares with the other makers of books on quasi-contract. A round table conference at some meeting of the Association of American Law Schools might profitably be devoted to an attempt to determine upon some uniform classification of the subject.

In conclusion it may be added that the generally exaggerated format of the volumes in the series of which this book is a part, is much mitigated in the present instance by the use of a thin but opaque paper.

E. H. W.

Fourth edition by Matthew Bender &

Wood on Limitations. By Horace G. Wood. Dewitt C. Moore of the New York Bar. Company, Albany. 1916. pp. iii, 1765. The fourth edition comprises two volumes and is the massing and accumulation of the effort, work and study of H. G. Wood, John M. Gould, and Dewitt C. Moore, authors of the first and second, the third and fourth editions respectively.

The best test of the value of a law text book is the frequency of its citation by the Courts. The third edition has enjoyed this distinction for a number of years. It is a surprising circumstance that fifteen years have elapsed between the publication of the third and fourth editions.

Wood on Limitations has long been regarded as the standard work on the subject. The fourth edition will not detract from the prestige enjoyed by former editions; the work is much enlarged in its scope by reason of the great number of decided cases that have been published in the reports since the third edition. There is a table of contents; table of cases (containing over seven thousand cases); thirty-one chapters covering the entire field of limitation of actions, both at law and in equity; an appendix containing extracts from the important sections of statutes of England, and the American States and Territories, and a most complete index by the aid of which the busy practitioner may readily find the topic he desires.

In view of the rapid expansion in the field of what we have come to call "commercial law" this edition should find a ready sale, for in this field the lawyer must be ready to advise as to prospects of collectibility of a debt when the debtor resides in jurisdiction other than that of the creditor. The text and the notes are general and not confined