to him by the defendant bank while he was on its board of directors and a member of its loan committee. He now sues the bank to recover the statutory penalty for usury. Held, that the plaintiff may recover whether or not he participated as director in the loan. MacRackan v. Bank of Columbus, 80 S. E. 184 (N. C.).

The policy of the usury statutes is such that the borrower in a usurious transaction, although a party to the wrong, is not in pari delicto with the lender. Brown v. McIntosh, 39 N. J. L. 22; Horner v. Nitsch, 103 Md. 498, 63 Atl. 1052. Accordingly, the borrower may ordinarily have affirmative relief on the contract, and enforce the statutory penalty for usury. Scott v. Leary, 34 Md. 389; Bell v. Mulholland, 90 Mo. App. 612; Tayloe v. Parker, 137 N. C. 418, 49 S. E. 921. This will be true although the debtor is a stockholder in the lending corporation. Hollowell v. Southern Building & Loan Ass'n, 120 N. C. 286, 26 S. E. 781. But when a director borrows from the corporation, the case is distinguishable because of the director's fiduciary duty to the corporate interests. See Hill v. Frazier, 22 Pa. 320, 324. It is clear that a borrower who controls the lender's action as its president or cashier will be unable to enforce the penalty. Gund v. Ballard, 73 Neb. 547, 103 N. W. 309; Morris v. First National Bank of Samson, 162 Ala. 301, 50 So. 137. A director should likewise be unable to recover, for the enforcement of such a hostile claim against the corporation would seem to be a clear breach of his fiduciary obligation. This should certainly be true in jurisdictions making a transaction between the corporation and a director, as to which he votes as director, always voidable by the corporation irrespective of its fairness. See Munson v. Syracuse, etc. R. Co., 103 N. Y. 58, 8 N. E. 355. It should also follow in states upholding the transaction, unless unfair to the corporation, for a contract subjecting a corporation to a penalty at the suit of a director seems grossly unfair. See Fort Payne Rolling Mill v. Hill, 174 Mass. 224, 54 N. E. 532. In the principal case, however, the majority of the court insists that the language of the usury statute is too strong to admit such an exception, and this view finds much support. Bank of Cadiz v. Slemmons, 34 Oh. St. 142; Buquo v. Bank of Erin, 52 S. W. 775 (Tenn.). See NORTH CAROLINA, REVISAL OF 1905, § 1951. But it seems doubtful whether the statutes of usury should be so literally construed as to overrule the well-settled policy of the law which forbids a fiduciary to profit by the breach of his obligation.

WAREHOUSEMEN WAREHOUSE RECEIPTS- UNAUTHORIZED SUBSTITUTION OF OTHER GOODS: RIGHTS OF PLEDGEE OF THE RECEIPTS AGAINST DEPOSITOR'S TRUSTEE IN BANKRUPTCY. The depositor of timothy seed in a warehouse received open warehouse receipts, which he transferred to a bank as security for advances. Without authority from the bank, the depositor then substituted other seed of similar quantity and quality for that originally deposited. Later he became bankrupt, and his trustee in bankruptcy claims the substituted goods against the bank. Held, that the bank should prevail. Chicago Title & Trust Co. v. National Storage Co., 103 N. E. 227 (Ill.).'

If the holder of a warehouse receipt has assented to the substitution of other goods for those deposited, title to the substituted goods vests in him immediately. See WILLISTON, SALES, § 154; 6 Aм. L. Rev. 450, 467. Cf. Bank of Newport v. Hirsch, 59 Ark. 225, 27 S. W. 74. But when the substitution is unauthorized, the receipt holder may insist upon his original title and refuse to accept the new goods. See WILLISTON, SALES, § 442. His subsequent assent to the substitution, however, will be effective at least against the depositor and his representatives. Brooks, Miller & Co. v. Western National Bank, 16 Wkly. Notes Cas. (Pa.) 298; Blydenstein v. New York Security & Trust Co., 67 Fed. 469. The authorities also generally agree with the principal case in sustaining the receipt holder's claim to the new goods against

the depositor's trustee in bankruptcy. See Hoffman v. Schoyer, 143 Ill. 598, 28 N. Ē. 823. The reasons assigned for this undoubtedly just result are various. Some courts find only an equitable lien, based upon estoppel. Hoffman v. Schoyer, supra. But the elements of estoppel appear to be lacking. See Bryans v. Nix, 4 M. & W. 775, 794. This theory, however, accounts for the dictum of the principal case that innocent purchasers of the new goods would prevail. By analogy to gifts delivered without the donee's knowledge, resort may also be had to the fiction of presumed assent, which would give the holder of the receipt actual title to the substituted goods, subject only to his own disclaimer. Thompson v. Leach, 2 Vent. 198, 3 Lev. 284; Jones v. Swayze, 42 N. J. L. 279. Upon this ground, the courts have sustained against third persons the claim of the holder of a bill of lading to goods subsequently shipped on account of the bill. Lovell v. Newman, 192 Fed. 753; The Idaho, 93 Ü. S. 575. See 25 HARV. L. REV. 555, 570. Cf. Bryans v. Nix, supra. Perhaps the best explanation of the result, however, is that the subsequent assent of the holder of the receipt relates back, and vests title in him from the time of the substitution. The fiction of relation, it is true, is not usually allowed to defeat intervening rights of third persons. Bird v. Brown, 4 Ex. 786; Norton v. Alabama National Bank, 102 Ala. 420, 14 So. 872. But where the transaction is so far completed that there has been an actual delivery of possession to a depositary, it seems not unjust to allow this relation back. Grove v. Brien, 8 How. (U. S.) 429. The creditors in the principal case have certainly not been injured by any possession in the debtor and should have no claim. And it is submitted that the dictum of the court that an innocent purchaser would prevail is unsound whether presumed assent or ratification be adopted as the ground of decision.

BOOK REVIEWS.

JUSTICE AND THE MODERN LAW. By Everett V. Abbot, 1913. Houghton, Mifflin and Company, pp. xiv, 299.

In the introduction (p. xiii) Mr. Abbot says: "The following pages are intended to help in the eternal conflict between established custom and justice. The first chapter is intended to exhibit the ultimate principles of justice as actually existent in the law, illustrated by cases in which they can be readily applied in the present, although they have never been so applied in the past. The second and third chapters are intended to exhibit something of the obstacles by which the progress of justice is impeded. They exhibit both the ignorance and the disingenuousness which enter into the administration of the law and which are still to be overcome. The last chapter is intended to suggest practical methods of avoiding error and detecting sophistries in the actual treatment of legal problems.'

Justice is said to be (p. 3) "only the application.of ethics to human affairs." The principles of ethics to be thus applied are three: the right of freedom, the duty to help, and "the reciprocating rights and duties of contract, which are, of course, solely defined by the terms of the contract itself." From this it will be seen that Mr. Abbot has not progressed much, if any, beyond the individualistic natural-right philosophy of the nineteenth century. The attempt to deduce a system of law from premises such as these has not been more successful in Mr. Abbot's case than in the cases of those who have preceded him.

Mr. Abbot's "natural right of freedom" leads him almost inevitably to the conclusion (p. 28) that inheritance taxes are unjustifiable and constitute a tak

ing of private property for a public use without compensation, and "both the testator and the living beneficiaries of his bounty are denied the equal protection of the laws." Strangely enough, Nunnemacher v. State, 129 Wis. 190, is not cited.

Immediately follows the rather startling charge, that "It is not creditable to the American bar that it has . . permitted its client's property to be seized upon the flimsy pretext that a man has no right to execute a transfer of his property to take effect at his death without the consent of the state." Throughout, Mr. Abbot fails to see clearly the existence of social interests requiring protection. To him, apparently, the law has little or no purpose apart from the protection of the individual. His "liberty" is merely individualistic self-assertion. His "altruism" rests upon no broader foundation. For this reason, if for no other, Mr. Abbot's book fails to accomplish the purpose so eloquently set out in the introduction.

Mr. Abbot's criticisms of existing practice and administration, in chapters 2 and 3, are vigorously, perhaps too vigorously, stated; but with much of it there will be agreement. His remedy for most of our juristic evils is distressingly simple. He says (p. 283), "There is no obstacle to the attainment of a system" (apparently an ideal system) "of justice save our reluctance to take pains to think correctly." Correct thinking seems to be little more than the use of "the abstract processes of reason." Our salvation, therefore, lies in logic, or, as Mr. Abbot prefers to put it, "reason." The period of the schoolmen is Mr. Abbot's Golden Age; the syllogism his philosopher's stone by which the base juristic metal of to-day is to be transmitted into the fine gold of perfect achievement. E. R. J.

THE SUPREME COURT AND ITS APPELLATE POWER UNDER THE CONSTITUTION. By Edwin Countryman. Albany: Matthew Bender & Company. 1913. pp. xxi, 282.

"There are," the preface says, "a few important decisions of the court of last resort, in which it has declined to exercise its appellate jurisdiction; and as this special interpretation of the judicial power is equivalent to a refusal of the court in many cases to act as a check upon the official action of the executive and Congress, this work is principally composed of a series of strictures upon those particular decisions.'

Yet the author wholly fails to gratify the interest naturally excited by such an announcement.

The arrangement of the book is so obscure that to follow the line of thought is impracticable.

For example, the first chapter deals with matter not very pertinent to the subject, and goes backward and forward through history in a fashion very perplexing, the subdivisions being entitled: "Origin and Organization"; "The Last Reorganization, a Coercive Measure to Secure Judicial Approval of Legal Tender Provisions"; "Similar Legislation to Prevent Exercise of Jurisdiction by the Court"; "Equally Indecorous and Unwarranted Treatment of the Court by the Executive in Refusing to Execute its Final Judgment Overruling the Decision of a State Tribunal in 1832"; "The Legislation of 1801, Repealed in 1802, a Partisan and Reprehensible Effort to Create Additional Judges and Courts before they were Needed"; "Senatorial Condemnation of President Jackson in 1834 a Violent and Unjustifiable Proceeding"; "The Dred Scott Case, an Example of Judicial Subservience to Political Influence"; "Partisanship Predominant Influence with Senators"; "Senatorial Partisanship on Trial of Impeachment of President Johnson"; "Relentless Partisanship of Electorial Commission"; "the Judiciary Proper Subjects of Criticism"; "Partisan Motives the Prevailing Rule in the Appointment of Judges"; "Many Able and Several Pre-eminent

Judges in the Court"; "Essential Conditions of Judicial Independence"; "Existing Defects in Organization of the Court, and Amendment Suggested to the Constitution."

It is on page 78, or possibly on page 64, that the real topic of the volume seems to be begun; but the discussion is throughout so perplexingly arranged as to prevent the book from becoming whole, and, indeed, there seems to be no pretense that the book leads to a conclusion. Thus its value must consist in the discussion of separate points. There are about twenty cases which, in accordance with the announcement in the preface, are criticized by the author (p. 269); and, though the discussion appears everywhere to lack clearness, it is not at all impossible that a person interested in some of these cases may find suggestions of value.

It only remains to say that the author's attitude seems to be that of a conservative, but that his views of judicial history sometimes do not accord with the common understanding of facts and that they are never enforced by references to new sources of information.

A TREATISE ON THE MODERN LAW OF EVIDENCE. By Charles Frederick Chamberlayne. Volumes 3 and 4. Albany: Matthew Bender & Company; London: Sweet & Maxwell. 1912, 1913. pp. xxxiii, xxxv, 4596. These two large volumes, the second published nearly six months after the author's much-regretted death, continue a work of which the earlier installments have already been noticed in this REVIEW. Mr. Chamberlayne cannot be blamed for the publishers' statement that the four volumes cover "every phase of the subject"; but it is a surprising assertion to make of a treatise in which one looks in vain for such topics as "Witnesses," "Documentary Evidence," and "Evidence by Perception," all of which the author's footnotes in earlier volumes show he had in mind for later treatment.

Volume 3, entitled "Reasoning by Witnesses," deals with opinion evidence and related subjects, including value, handwriting and expert testimony. Volume 4, entitled "Relevancy," treats of hearsay, character and the relevancy of transactions not in issue these last in chapters entitled "Relevancy of Regularity," "Uniformity of Nature," and "Moral Uniformity." Both volumes have the qualities already observed in their predecessors. (See review of the earlier volumes, 25 HARV. L. REV. 483.) There is much enlightened comment, showing an acute mind and a vision and perspective bred of a lifelong study of the subject. But the result is marred by a faulty terminology, and by a tantalizing diffuseness which has grievously swollen the bulk of the work. The lack of a table of cases is incomprehensible, especially in a book in which the convenience of the practitioner has been so much considered. Whether or not Mr. Chamberlayne would have permitted such an omission had he lived to see the publication of the fourth volume, he is the victim, not the author, of the graver offense of interpolating in the text, with no indication that it did not come from his hand, matter which cannot have been written in his lifetime. The seriousness of this is not lessened by fact that the book contains no reference whatever to his death.

SELECTED CASES ON THE LAW OF CONTRACTS. By Ernest W. Huffcut and Edwin H. Woodruff. Third Edition. Albany: Banks & Company.

1913. pp. XX, 774.

The third edition of this well-known collection of cases differs materially from the preceding editions. The work was originally intended to be used in

connection with a textbook, but is now designed primarily to be used alone as the basis of instruction. Two chapters which appeared in former editions, -"Capacity of Parties," and "Impairing the Obligation of Contracts," are omitted because they relate to topics ordinarily treated in law schools in courses on Persons, and Constitutional Law. All the changes in the present edition seem improvements over the second edition, and the omissions and compressions make the book more than a hundred pages shorter than the previous edition, although the matter contained in it is greater. We are still of the opinion that the original plan of the book was seriously defective in excluding English cases, and we have regretted the popularity of Sir William Anson's arrangement of topics in the Law of Contracts, which is that adopted, since the inclusion of the personal defenses of mistake, misrepresentation, fraud and duress, under the heading of "Reality of Consent," in connection with the formation of contracts, is likely to lead to misapprehension of the nature of these defenses. Nor do we think the best grasp of illegal contracts can be obtained by considering the topic under the headings of "Legality of Consideration" and "Legality of Object," and regarding both these as necessary elements for the formation of a contract. A contract may exist and be enforceable by one party which is both illegal in its object and its consideration. These matters, however, are not appropriate for criticism of the present edition, but rather of the original treatise.

S. W.

CONSULAR TREATY RIGHTS AND COMMENTS ON THE "MOST FAVORED NATION" CLAUSE. By Ernest Ludwig. Akron: The New Werner Company. 1913. pp. 239.

This book deals with questions which arise when an alien dies in the United States, and a consul claims the right to have a voice in administering upon the estate. The questions depend upon the construction of many treaties; for the treaties are far from uniform and many of them give privileges described as those "of the most favored nation,” thus causing the investigator to search among all treaties in existence. As to the administration of estates, treaties giving consuls wide powers are those with Argentine, Paraguay, and Sweden; but the provisions of these treaties and of others are somewhat vague and conflicting, and hence require careful examination. This book gives the text of the pertinent passages of the treaties, then gives abstracts of the decisions of State courts, including apparently some probate cases not reported elsewhere, then discusses Rocca v. Thompson, 223 U. S. 317 (1912), then gives a form for a consul's application for the issuing of letters of administration, then comments on the "most favored nation" clause, and then concludes with a discussion of the nature and extent of the treaty making power. The book has neither a table of contents nor a table of cases, and thus it is not very easy to handle. Besides, it carries with it the burden of being apparently the outgrowth of something like a brief in favor of rights claimed in behalf of Austria-Hungary under the "most favored nation" clause. Yet it is a careful piece of work, and it breaks usefully the ground of an important field too slightly cultivated heretofore.

THE ANCIENT ROMAN EMPIRE AND THE BRITISH EMPIRE IN INDIA. THE DIFFUSION OF ROMAN AND ENGLISH LAW THROUGHOUT THE WORLD. By James Bryce. New York: Oxford University Press. 1914. pp. 138. JURISDICTION AND PRACTICE OF THE COURTS OF THE UNITED STATES. By Charles W. Bunn. St. Paul: West Publishing Company. 1914. PP. vi, 129.