opinion about as bad as most other parts of that ambitious and unsatisfactory performance. If ever the Contract Act is revised, these sections should be thoroughly recast.

Mr. Rattigan has studied not only the English but the Continental literature of the philosophy of law; and in particular he has drawn considerably, and so far as we have observed with good judgment, on the works of Thering, which notwithstanding the praiseworthy exertions of Mr. Lightwood and others are not yet sufficiently known in this country. In the midst of this evidence of intelligent use of German authorities, we are surprised to find Mr. Rattigan citing an imaginary 'German Landrecht'; he means of course the Prussian code. Prussia and Germany are not synonymous terms except in the language of inferior French journalism.

Although Mr. Rattigan truly says that untranslated foreign quotations are a puzzle to Indian students, and that for that reason Mr. Holland's book is not altogether suitable to them, we doubt whether he has adequately observed his own precept; there are quite enough German and Latin phrases embedded in Mr. Rattigan's text to give trouble to readers who do not know any European language besides English. Why plague them with such a clumsy compound, belonging moreover to no real language at all, as 'culpa-compensation' And it is gratuitous cruelty to give them the impossible derivation of 'felony' from English fee' and German ‘Lohn' propounded but not vouched for by Spelman. Such things can hardly be excused since Mr. Skeat's Etymological Dictionary has been published in a cheap and handy form. To this particular word Mr. Skeat assigns a Celtic origin which does not seem to have occurred to Littré; but, as in many like cases, the truth is that behind the medieval Latin form of the word all is conjecture. In the department of early history Mr. Rattigan's work is rather uncertain. He adopts the McLennan theory of primitive marriage in a fashion much too dogmatic for an elementary book; and though he mentions some of the evidence that suggests a religious origin for promissory obligations, he goes on to represent the Stipulation as derived from Nexum without any indication of doubt. Both views cannot be right. He makes moreover the really bad mistake of applying the epithet 'consensual' to the verbal contracts of Roman law. In one meaning of the word every contract is consensual; but in speaking of Roman law, or of any other definite system, we should use its proper terms of art in their proper technical

sense.

There is not much amiss in the treatment of Anglo-Indian law so far as derived from the common law; and we see that Mr. Rattigan has made good use of some good American books, such as Judge Clark Hare's treatise on Contracts. But Mr. Rattigan might have known that Thorogood v. Bryan is overruled, and he should not have cited decisions which turn wholly on remoteness of damage as examples of contributory negligence. It is not enough that the word 'negligence' occurs in a judgment. Whether it belongs to the point of substance or not is exactly what a critical writer on jurisprudence has to examine. It is true that the doctrines of remoteness of damage and of contributory negligence may both be referred to the more general principle that a man is liable (particular exceptions excepted) only for what are sometimes called 'natural and probable,' sometimes 'proximate' consequences of his acts or defaults. But this can be made intelligible to students only by patient analysis, not by lumping the two doctrines together.

We further observe that in the sections on Possession Mr. Rattigan has not clearly distinguished Possession itself from the Right to Possess, at all

events he has not clearly expressed the distinction. He has used language from which a student would naturally infer that it is impossible for a servant to steal his master's goods; for there can be no theft without a wrongful change of possession, and Mr. Rattigan says that even if a servant. assumes adverse control of his master's goods the legal possession' remains with the master. What really happens is that the servant acquires an actual though wrongful possession-not merely manual possession or 'detention,' but legal possession which he could probably defend against a mere stranger-and the master is dispossessed, but retains the immediate right to possession, which is often called in our books 'constructive possession.' The subject, however, is admitted to be a difficult one.

Benjamin's Treatise on the Law of Sales. American Edition. By EDMUND H. BENNETT. Boston, Mass.: Houghton, Mifflin & Co. 1888. 8vo. xii and 1010 pp.

THIS is the latest American edition of Benjamin's standard treatise. Of the excellence of the original nothing need be said here; the legal profession both in England and America unite in praising it as one of the best law books ever written in either country. In preparing the present edition Mr. Bennett has followed an entirely novel plan. Taking the text of the last English edition he has appended to each chapter an American Note,' containing all his own additions arranged more or less closely on the lines followed by the author, and designed to present the American law. This arrangement, it must be confessed, is not wholly logical nor wholly convenient. In the law of sales there has been no such divergence between the American and English Courts as calls for a separate treatment; while certain doctrines accepted in the one country are by no means universally prevalent in the other, yet there is no more an American as distinguished from an English law of sales, except as referring to a grouping of cases and not of principles by nationality, than there is a Massachusetts as distinguished from a New York law of sales. Logically, therefore, the segregation of American decisions here adopted is not defensible, and it has the practical inconvenience of entailing a double search, first in the text and then in the 'notes,' in order to collect all the authorities on any point.

Mr. Bennett has aimed at making his 'notes' something more than mere appurtenances to the text; they form to some extent a book within a book; each deals, it is true, with the topic discussed in that section of Benjamin's work preceding it, but each undertakes to give a succinct statement of those doctrines, as found in the American cases, which fall under the general heading, often arranged in different order and with both additions and omissions, and not merely to supply a collection of authorities supplemental to the original. In his desire, however, to avoid a burdensome length the editor has kept his own views so much in abeyance as to reduce his work to a large degree to that of mere compilation; but as such it is worthy of high praise, and the notes on Conditional Sales of Specific Chattels, Sales of Chattels not Specific, Fraudulent Sales, and Warranty are of especial value.

Where so much attention has been paid to the citation of authorities it is somewhat surprising to find several important cases unmentioned. Burdick v. Sewell, 10 Q. B. D. 363; 13 Q. B. D. 159; 10 App. Cas. 74, seems worthy of reference for the sake of its discussion as to the effect of endorsing a bill of lading. And surely in dealing with acceptance and re

6

ceipt to satisfy the Statute of Frauds some mention should be made of Page v. Morgan, 15 Q. B. D. 228, the latest decision upholding the socalled doctrine of Morton v. Tibbett, 15 Q. B. 428. That the last named case did not in fact involve the doctrine attributed to it and followed in Kibble v. Gough, 38 L. T. N. S. 204, and Page v. Morgan, namely that any dealing with goods such as recognises the existence of a contract is sufficient to show an acceptance, is made clear by Benjamin; and that Lord Campbell himself did not, later at least, regard this as sound is indicated by his language in Parker v. Wallis, 5 E. & B. 21, where he said that though the owner need not have precluded himself from objecting to the quality of the article delivered, yet he must have done something indicating that he has accepted part of the goods and taken to them as owner.' Morton v. Tibbett might well have been decided on the ground that the acceptance and receipt of the sample was enough, following Hinde v. Whitehouse, 7 East, 558, though this view seems not to have suggested itself to the Court; but independently of that the resale by the buyer was undoubtedly enough to warrant finding an acceptance without going to the extreme doctrine of the later cases, since it was a clear recognition not merely of the existence of a contract but of the effective force of that contract in vesting the title in the buyer; it was an act consistent only with his ownership and inconsistent with that of the seller,' Remick v. Sanford, 120 Mass. 309, or as Lord Campbell phrased it, a 'taking to them as owner.' In Simpson v. Krumdick, 28 Minn. 352, the doctrine of the later English cases was disapproved.

The established doctrine that a sale--an intentional passing of title-if induced by fraud cannot be avoided against a bona fide purchaser for value from the fraudulent vendee, meets with strictures from Mr. Bennett. He regards it as inconsistent with the rule allowing sales by minors and insane persons to be avoided even at the expense of innocent third parties. The distinction, however, seems well founded; it is precisely analogous to the rule as to negotiable paper, resting upon a distinction between real and personal defences; infancy and insanity are real defences; they are good against all the world and do not depend upon any personal relation or conduct as in the case of fraud. The sale in these cases is voidable because of an absolute rule of law, but in case of fraud the foundation of the defrauded vendee's right is equitable and is lost when the conflicting claims of a bona fide purchaser intervene.

On one point a general divergence between the American and English decisions has grown up. This is in respect to warranties and conditions. In all sales of chattels where the goods are designated by description and not by physical reference-and perhaps even in the latter case, if there is a mistake in an essential particular, but see Hecht v. Batcheller, Supreme Judicial Court of Massachusetts, to be reported, the terms of the description are a part of the contract and must correspond to the attributes of the article specified. In England the truth of the description is deemed a condition of the contract, but in America, Mr. Bennett says, it is regarded as covered by an implied warranty of identity. Perhaps in view of the more extended rights of a buyer in America in case of breach of warranty the difference is rather one of nomenclature than of substance, but in theory at least the distinction is important and worthy of remark. The truth of the description is, it would seem, properly and truly a condition of the contract; it is such not because of an undertaking on the part of the seller that the article shall be of the kind or quality specified, but because the contract is for that description of article, and if it is not of that description there is as truly no

meeting of minds as if the parties misunderstood each other. The line between such a condition and an implied warranty of fitness undoubtedly is not always clear, but it exists, the difference being founded on the fundamental basis of each; the one goes to the identity of the thing contracted for, and might not be fulfilled if the article were of a superior grade, while the other goes to its quality and would be satisfied if the article was not inferior in quality and fitness. That there is in general an implied warranty that goods not examined by the buyer beforehand shall be of fair merchantable character and reasonably fit for the purpose for which they are bought, if such purpose is disclosed, is universally upheld and has very recently been affirmed by the Supreme Court of the United States in the case of Dushane v. Benedict, 120 U. S. 630.

In outward appearance the present is a great improvement on the last American edition, while its more orderly classification and more discriminating citation of authorities render it a much more serviceable book, aside from any question of the merits of the plan on which it has been arranged. Some errors of the press and a certain carelessness of style on the part of the editor detract somewhat from the finish, but do not impair the substantial merits which will cause the book to be received with thanks and congratulations to its learned editor from his professional brethren both at home and abroad.

A Treatise on the Law of Fraud on its Civil side.

By MELVILLE M. BIGELOW. Boston: Little, Brown & Co. 1888. La. 8vo. lxv and 714 PP,

THIS is a full and elaborate treatise, working out every branch of the subject with Mr. Bigelow's well-known industry. We shall not take on ourselves to say whether he has finally succeeded in tying the Proteus of Fraud in the bonds of a definition. Fraud consists in endeavour to alter rights, by deception touching motives, or by circumvention not touching motives.' This is very well; but who shall define 'circumvention'? We should doubt whether, in its ordinary sense, it included various cases of fraudulent abuse of the process of the law which Mr. Bigelow makes it include. In other directions it might possibly be too wide. There are, we think, actionable wrongs in the nature of circumvention which have not hitherto been included under Fraud. Mr. Bigelow may say, however, that if we see our way to a real generalization of principle we must enlarge our terms of art accordingly.

To speak, more in brief than we fain would, of one or two details: we wholly agree with Mr. Bigelow as to the meaning of constructive,' or as it is sometimes rather unhappily called 'legal,' fraud. People are sometimes puzzled by transactions which they cannot see to be fraudulent being called 'constructive frauds.' But the idea of constructive fraud '-as in every legal use of that adjective by careful lawyers-is precisely that something which is not, or is not proved to be, 4-where, in this case, A=Fraud— shall be treated as if it were A. Where real fraud is shown, constructive fraud is out of the question. So 'constructive notice' does not mean any state of knowledge or consciousness existing or supposed to exist in the person affected by it, but that the law thinks good-wisely or not—to treat him as if he had actual notice.

Again, we agree with Mr. Bigelow about the distinction between representations of matter of fact and representations of matter of law. The latter are generally not binding on the person making them, not because of any

absolute rule or presumption, but because, in the absence of any assumption of superior knowledge to which faith is given, they stand upon the footing of opinion' merely. And there is no reason why in the exceptional cases an exception should not be made.

We do not agree with Mr. Bigelow that any contract may be rescinded for innocent misrepresentation which was a sufficient inducement thereto.' No authority we know of in this country has gone the length of holding that in general a contract induced by a statement made not only with belief but with reasonable belief in its truth (and since Peek v. Derry, 37 Ch. Div. 54, at any rate, it seems that no others are innocent) can be rescinded on account of that statement being found erroneous. Mr. Bigelow seems to aim at a generalization which would make it superfluous to discuss the incidents of different species of contract. It may be a tenable opinion that the day is coming when every warranty, unless expressly limited in its effect, will be presumed to be a condition, and every term of description to be of the essence of the contract. And we do not say that such a rule, if consistently applied, would be a bad one. At least it would teach people some care in the use of language. But for the present Mr. Bigelow seems not to have quite shaken off the temptation to construe equity authorities too widely and common law authorities too narrowly; so powerful and insidious a temptation that even Sir G. Jessel succumbed to it at least once.

The Law of Execution upon Judgments and Orders of the Chancery and Queen's Bench Divisions of the High Court of Justice. By C. JOHNSON EDWARDS. London: Stevens & Sons. 1888. lx and 526 pp.

THE slightly profane story of the Judge who was taunted by a bishop with not being able to utter professionally any menace more terrific than 'you be hanged,' and retorted 'Yes, but when I say "you be hanged" you are hanged!' has a moral. This is, that the whole elaborate machinery of the administration of justice by virtue of which civilisation is able to exist would be of little use if it could not secure practical compliance with the decisions at which it arrives. There is, therefore, no more important part of the law than that which concerns the carrying of the law into effect. Yet it is one which many very learned lawyers know little or nothing about. Therefore Mr. Edwards has done well to make it the topic of an elaborate, carefully-written, and reasonably exhaustive book. In order to be quite exhaustive it would have to be very large indeed. Mr. Edwards has omitted from his Survey the manner of executing judgments or orders of the Queen's Bench Division on the Crown side, the method of dealing with such contempt of Court as consists of disrespectful behaviour, the enforcement of orders in bankruptcy, and all execution in inferior courts, of which the County Courts are the most numerous and important. Enough remains to make a substantial volume. Mr. Edwards' principal heads deal with writs of execution, how and when they issued and upon what conditions stayed, the returns to them, and discovery in aid of execution; the sheriff and his officers, and their duties and liabilities; the writs of Possession, Fi. Fa., Elegit, and Delivery; the methods of enforcing judgment where non-compliance of the order of the Court is treated as contempt, namely, attachment, committal, and sequestration; equitable execution by means of the appointment of receivers, charging orders, and the like; the attachment of debts; and execution against married women.

Mr. Edwards writes briefly and pointedly, and has the merit of beginning