BOOKS AND PERIODICALS.

MEASURE OF REINSURER'S LIABILITY.

- It may be laid down broadly that a contract of insurance is a contract to indemnify for actual damage suffered. Reinsurance, on the other hand, has been considered as a contract of indemnity for liability,' not for actual loss. EMERIGON, Meredith's ed., 1850, ch. 8, § 14; I JOYCE, ÎNS., § 134; Hone v. Mutual, etc., Ins. Co., I Sandf. 137. This doctrine has been supported in a recently published article which states that "the measure of [the reinsurer's] indemnity payment is the insurer's liability at the time of such payment." The Contract of Reinsurance, by W. R. Vance, 7 Va. L. Reg. 669 (Feb. 1902). Although this proposition is almost universally accepted it has been contended, not without some show of reason, that reinsurance as well as simple insurance is essentially indemnity, and that the reinsurer therefore should have to pay to the insurer only his actual pecuniary loss. If this latter rule be applied to cases where the insurer has become bankrupt it is evident that, on payment of a dividend to the insured by the bankrupt, à valid claim for that amount arises against the reinsurer. When that amount is collected it becomes in turn an asset from which a dividend must be paid to the insured. Then consequently another claim arises against the reinsurer, and so on ad infinitum. See Philadelphia, etc., Ins. Co. v. Fame Ins. Co., 9 Phila.

292.

To avoid the necessity — under the 'indemnity for loss' theory-of successive settlements or calculations, a formula, the principle of which has been sug gested in certain suretyship cases, might prove useful.

Let a total liabilities of the bankrupt insurer.

b= his liability to the insured whose risk has been reinsured.

62c
a2

c = assets of the insurer exclusive of his claim upon the reinsurer. Then = proportion of assets due insured on each distribution, and (2) c= amount due insured on the first distribution and therefore the amount for which the insurer has a claim upon the reinsurer. Of this sum the insured should receive his proportionate part, which is This in turn gives rise to a further claim upon the reinsurer. Hence, the series representing the final amount which the insured should receive from, and which the reinsurer should pay to, the insurer, is the geometrical progression b+b+ etc. The sum of this progression is represented by the formula S= For example, if $100,000, b $10,000, and c = $50,000, then the reinsurer's liability would 10,000 X 50.000, which resolves into $5555.56. Cf. 14 HARV. L. REV. 547.

α=

be

100,000- 10,000'

=

bc a

bc
a-b.

If reinsurance means indemnity for actual pecuniary damage, unquestionably the above formula works out exact and immediate justice. But if reinsurance means liability to pay to the insurer the whole claim of the insured, irrespective of the insurer's ability to pay that claim in full, clearly the formula is inapplicable. Which of these views is preferable in a particular case is largely a question of interpretation. If the parties intended the insurer to get back only what he paid out, and if his only motive was to prevent loss to himself, the former view must be correct. If, on the other hand, they intended the reinsurer to become liable for the full amount from the moment of loss, and if the insurer reinsured chiefly to strengthen his financial position, then the latter doctrine should prevail. Legal analogies favor the one; the courts have accepted the other.

CRIME IN ITS RELATION TO SOCIAL PROGRESS. By Arthur Cleveland Hall. New York: The Columbia University Press. The Macmillan Co., Agents. London: P. S. King & Son. 1902. pp. xvii, 427. 8vo.

The main thesis of this book is, that the apparent increase in convictions for crime in some of the most advanced nations during the last century is not a sign of decadence. One would think that a book as big as this would not be necessary to prove anything so self-evident. The creation of novel, petty crimes and the more certain detection and punishment of older crimes much more than account for the apparent increase. When we find a court with its jurisdiction nearly constant and study its records during the century we find quite another story. In the Old Bailey and the Central Criminal Court of London, for instance, with a not greatly increased jurisdiction or tale of crimes, the number of prosecutions enormously decreased during the nineteenth century.

But the science of criminology cannot, it appears, be established by so simple a method as by the statement of axioms and the test of these axioms by the facts. Through devious paths the way is most satisfactory. And Doctor Hall's method of proving his axiom is devious enough. The steps are as follows:

1. "Crime is any act or omission to act punished by society as a wrong against itself" (p. 10). "If forbidden and punishable by law, but not actually punished, the act is not an abstract crime." "It is necessary always to remember that no action is a crime unless society actually punishes it as a wrong against itself. No amount of legal prohibition will suffice, unless the laws are enforced" (p. 277). "Piracy was not a crime at the beginning of the eighteenth century, for it was not punished to any extent, and successful pirates were greatly admired by the lower classes " (p. 257). "The laws remained dead letters, and consequently the acts they were directed against were not crimes p. 193). "Crime ceases to be punished. Crime ceases to be crime" (p. 153). 2. Having assumed this unique meaning for the word crime, it follows that where there are few crimes the nation is either so torn with war and anarchy that it cannot feel the pin-pricks of mere trangression, or else it is so weak as not to be able to resent and punish.

3. Consequently an increase of crime indicates an awakening to faults and the power of redressing them.

4. Finally, since crime is greatly increasing in modern civilization, we are advancing, not decadent.

A weak point here is, that the "crime" which according to Doctor Hall is increasing, is crime not in his sense but in the ordinary sense — acts punishable by the law.

This book shows many excellent qualities; industry, clearness and firmness of purpose, patience in the development of the theme, and intelligent optimism. It is marred by the faults pointed out: a fundamental misuse of the principal word of its title (leading finally to confusion), and a labored attempt to prove that progress progresses. This may indicate imperfect mastery of the facts, or immature judgment. In either case, the book might be fundamentally improved in a second edition.

J. H. B.

A TREATISE ON THE AMERICAN LAW OF REAL PROPERTY. By Emory Washburn, Bussey Professor of Law in Harvard University. Sixth Edition by John Wurts, Professor of the Law of Real Property in the Yale Law School. 3 vols. Boston: Little, Brown, & Co. 1902. pp. clxx, 579; iv, 706; iv, 636. 8vo.

"The training of a lawyer should not only enable him to perceive and understand abstract truths in detail, but to contemplate them in their relations and bearings to each other, so as, out of them, to elicit new truths, and, in this way, to grasp and comprehend the problems of law and government with which he will have to engage." So spoke Professor Washburn in his closing address to the students of the Harvard Law School, in 1876. In the same spirit he had, in

1860, written the two original volumes on the Law of Real Property. His broad grasp of the entire subject and his clear and easy style produced a work which remains to-day the most comprehensive general treatise on this large and important branch of the law.

The first three editions appeared at intervals of four years. Since then, the periods between successive editions have gradually increased, largely owing to the multiplication of books on special topics embraced under this title, but Professor Washburn's work is still the standard treatise on the subject. Its retention of this position is, however, due in no small measure to the fortunate selection of its editors and annotators. In the sixth edition, especially, do the labors of the editor add to the value of the volumes. Professor Wurts has not only brought down to date the references to authorities, but has made many changes in the text, chiefly by way of addition and enlargement. These changes have been in complete sympathy with the method and manner of the original. Often, in the light of the increased number of cases decided since Professor Washburn wrote, Professor Wurts is enabled to deduce a definition or a principle of law, where before there had been stated only a decision on a single set of facts. The subject of Fixtures offers many such opportunities. On the other hand, former editors had expanded largely the discussion of the topic of "Homestead Rights;" the sixth edition wisely follows the general scope of the original, and reduces this chapter about one hundred pages.

In view of the excellence of the editorial work, it may be permissible to doubt the advisability of a merely mechanical change, namely, the omission of the paging of the first edition. Verification of references to or from other editions thus becomes extremely difficult.

J. I. W.

LECTURES ON SLAVONIC LAW. By Feodor Sigel. London: Henry Frowde. New York: Oxford University Press, American Branch. 1902. pp. viii, 152. 12mo.

This little book contains the Ilchester Lectures for the year 1900, by Professor Sigel of the faculty of law in the University of Warsaw. These consist of a careful historical examination of the fortunes of folk-law in the Slavonic nations of Europe. Separate lectures are devoted to Bulgaria and Servia, Russia, Bohemia, Poland, and Croatia.

The title given to the book is a trifle misleading. While the greater part of the lectures tells about the Slavonic law and its fortunes in various Slavonic states, there is hardly a word to indicate what the actual provisions of that law were ; neither are the principles of Slavonic law stated, nor is any comparison made between these principles and those of other Aryan systems of law. One who goes to the book, therefore, to find out what the peculiar doctrines of Slavonic lawgivers were will be disappointed. On the other hand, there is a careful, concise, and, on the whole, clear discussion of the external history of the popular law, its crystallization into more or less perfect codes in the different states, and its final absorption into the all-conquering Roman law. We get a good general idea of the constitutional history of these countries, and some information on their legal bibliography. This information is so interesting and so valuable that one hardly feels like finding fault with the book for not containing what its title seems to import.

To an English lawyer much the most interesting part of this book is the lecture on the law of Bohemia. The King of Bohemia, like the King of England, succeeded in establishing a King's Court which absorbed into itself the functions of the earlier popular courts. Like the King's Court in England, this court proceeded to apply throughout Bohemia a common law, based largely, of course, on doctrines of Slavonic law, but modifying those doctrines by notions of equity and of public policy. Again like the English court, the Bohemian court proceeded from precedent to precedent, and thus established a body of common law that was sensible, flexible, and perfectly adapted to its purpose. Unfortunately this Bohemian common law was entirely superseded at the time

the country became Germanized; but the reports of the decisions of the King's Court have been preserved, and a study of them should be of the greatest value to a student of our own legal history.

J. H. B.

ELEMENTS OF THE LAW OF BAILMENTS AND CARRIERS, including Pledge and Pawn and Innkeepers. By Philip T. Van Zile. Chicago: Čallaghan & Co. 1902. pp. lvii, 785. 8vo. This is an especially interesting book. The law of bailments and the allied subjects here treated has, as its foundation, principles which are as old as civilization, but which in spite of their primitive origin still persist as governing rules for our modern complex business system. This phase of the subject is given prominence by the work, and the flexibility and adaptability of our common law are thus excellently illustrated.

The writer first treats bailment in general, outlining the history, nature, and classification of the relation, and thus indicating with clearness and discrimination the rights and liabilities incident to the relation in each of the general classes. The succeeding portion of the book deals with the more specialized forms of bailments and related subjects under the titles of Pledge or Pawn, Innkeepers and Boarding-house Keepers, Carriers, and Carriers of Passengers. The section on pledge is particularly good in its treatment of the pledge of negotiable and non-negotiable securities. That on innkeepers brings into accessible form peculiar and not unimportant principles of law not often so fully treated. Fully half of the book is devoted to the law of carriers, and this important branch is carefully and thoroughly analyzed in its many complex details and modern applications. There is also a brief section on the Post-office Department and the liability of its servants.

The book is not, and does not purport to be, a work of originality. It merely restates in clear, concise, and well digested form old well established principles together with those that are still in the process of development. This is done in a free, sketchy style which shows the effect of the author's long experience as a lecturer and adds not a little to the value and attractiveness of the volume, especially as it is likely to prove particularly a student's book. It will nevertheless become a valuable hand-book for practitioners from its concise analysis of an important subject. While not a great book, or an especially noteworthy accession to legal literature, this work is distinctly commendable.

W. H. H.

In

THE LAW OF INSURANCE-FIRE, LIFE, ACCIDENT, GUARANTEE. By William A. Kerr. St. Paul: Keefe-Davidson Co. 1902. pp. xi, 917. 8vo. The author of this book has attempted to give a concise statement of the law of non-maritime insurance as laid down by the courts in decided cases. brief, he has prepared a large number of head-notes which have been classified and arranged under appropriate divisions and subdivisions of the subject. In support of each proposition the corresponding authority is cited. Mr. Kerr frankly states that his aim has been merely to provide a convenient aid and guide to investigation of the actual state of the law. He has no theories to advance and does not discuss the reasons which gave rise to the existing law, but is content to state what that law is and where it may be found. For this reason the work will be of little value to the student. On the other hand, it will probably find a ready welcome to the shelves of the busy practitioner.

S. L. C.

THE NEGOTIABLE INSTRUMENTS LAW. The full text of the law as enacted, with copious annotations. By John J. Crawford. Second edition. New York: Baker, Voorhis & Co. 1902. pp. xxxiv, 173. 8vo.

The second edition of Mr. Crawford's book follows closely upon the first edition of 1897, and, although only six decisions upon the Uniform Act have been handed down since that date, the author finds his excuse for a new edition in the needs of the lawyers of the fourteen states which have in the mean time adopted the Code. He devotes himself in this second edition to the task of making the work of local value in those states. His purpose is to point out changes made in the existing law by the Act and to give citations from the different jurisdictions. He does not, however, seem to be uniformly successful. Several instances can be found where marked changes in the existing law are not clearly pointed out, as where, for example, on page 64, in the section on irregular indorsers, the Massachusetts decisions are not included in the list of those which hold that an anomalous indorser is liable as a joint maker. Again the citation of authorities is often noticeably incomplete. The omissions are doubtless due to a desire for brevity, but they decrease the book's value to the practising lawyer who seeks a guide to the leading decisions in his

state.

In this second edition, with its wider aim, there seems little excuse for retaining the peculiar, meaningless section numbering adopted in New York. There is a substantial uniformity among the states in this matter, but, as appears from the author's footnotes, none have adopted the New York system. The Index shows no improvement and is inadequate to the needs of those who use the book as a reference manual.

A TREATISE ON THE LAW OF FRAUD AND MISTAKE. By William Williamson Kerr. Third edition by Sydney E. Williams. London: Sweet & Maxwell, Limited. 1902. pp. lxv, 557. 8vo.

Since the appearance of the second edition of this book in 1883, the law relating to fraud and mistake has undergone substantial development, and this further revision of a standard work cannot fail to be received with interest. Like the preceding edition it deals exclusively with the English law, no American cases being cited. The present volume is of about the same dimensions as the earlier; a considerable amount of new matter has been added and much that was obsolete has been wisely omitted, leaving a text forty pages shorter than that of 1883. The topical arrangement of the earlier work is retained with slight alterations and to a great extent the original form of statement is preserved.

The most extensive changes are found in the chapter on Misrepresentation and Concealment, necessitated principally by the important decision in Derry v. Peek, 14 A. C. 337, holding that negligent misrepresentation as distinguished from fraudulent misrepresentation will not ground an action of deceit. Unfortunately here where most is hoped for, the work seems most deficient. While Mr. Williams may be quite right in attacking the doctrine of Derry v. Peek, the question is but little clarified by a treatment consisting largely of the comments of judges and presenting only a brief and unanalytical statement of the editor's own views. That the House of Lords may have been wrong in its interpretation of the facts Mr. Williams does not even intimate; and yet writers of no less authority than Sir Frederick Pollock and Sir William R. Anson agree in so thinking. 5 L. Quart. Rev. 410, 422; 6 L. Quart. Rev. 72, 73. Again, in attempting to reconcile Derry v. Peek with certain earlier cases which are generally regarded as having been overruled by it, the editor's argument is far from convincing.

A similar want of close analysis and correct appreciation is detected in other parts of the volume, as where the subject of the conditional revocation of wills is disposed of in a single paragraph; and where sanction is given to the questionable distinction taken by the English cases between an equity and an equi