Held, that the plaintiff may recover only the limited amount. Williams v. Western Union Telegraph Co., 203 Fed. 140 (Dist. Ct., E. D. Pa.).

The principal case follows the accepted rule of the federal courts. Primrose v. Western Union Telegraph Co., 154 U. S. 1, 14 Sup. Ct. Rep. 1098; Western Union Telegraph Co. v. Coggin, 15 C. C. A. 231, 68 Fed. 137. It is also in accord with the weight of general authority. Halstead v. Postal Telegraph and Cable Co., 193 N. Y. 293, 85 N. E. 1078; Grinnell v. Western Union Telegraph Co., 113 Mass. 299. Nearly all jurisdictions, however, disregard the limitation when the act is wilful or grossly negligent. Dixon v. Western Union Telegraph Co., 3 App. Div. 60, 38 N. Y. Supp. 1056; Redington v. Pacific Postal Telegraph Cable Co., 107 Cal. 317, 40 Pac. 432. But several states hold the stipulation invalid for all purposes on the ground that an exemption from liability for negligence in the conduct of a public business will remove a necessary safeguard against deterioration of the service. Western Union Telegraph Co. v. Chamblee, 122 Ala. 428, 25 So. 232; Telegraph Co. v. Griswold, 37 Ohio St. 301, 41 Am. Rep. 500. This position seems in harmony with the rule that an exemption from liability for negligence with respect to service within the public obligation is invalid. Reed v. Western Union Telegraph Co., 135 Mo. 661, 37 S. W. 904; Railroad v. Lockwood, 17 Wall. (U. S.) 357. The majority of the cases endeavor to avoid a conflict with this rule by calling the repeated message the normal and the unrepeated message the special service. This reasoning involves the proposition that a company can refuse to transmit unrepeated messages. This is not justified by authority. Vermilye v. Postal Telegraph and Cable Co., 205 Mass. 598, 93 N. E. 635. Therefore the result reached by the chain of cases to which the principal case adds an additional link is not only unfortunate from the point of view of the public to be served but incorrect, in the light of the general law of public service companies.

TORTS LIABILITY OF MAKER OR VENDOR OF A CHATTEL TO THIRD PERSONS INJURED BY ITS USE - EXPLOSION OF GINGER BEER BOTTLE. - The plaintiff was injured by the explosion of a ginger beer bottle purchased from a vendee of the defendant manufacturing company. The defendant did not know of the defect, but by due care would have discovered it. Held, that the plaintiff may not recover. Bates v. Batey & Co., 108 Law T. Rep. 1036.

Upon general tort principles a manufacturer should be held liable to others besides the immediate purchaser when with due care he could have discovered the defect. See Heaven v. Pender, 11 Q. B. D. 503, 510; 19 HARV. L. REV. 372; 44 AM. L. REG. N. S. 292. But it has been established otherwise. Longmeid v. Holliday, 6 Exch. 761; Bragdon v. Perkins-Campbell Co., 87 Fed. 109. An exception is made when the chattel is imminently dangerous to human life. Thomas v. Winchester, 6 N. Y. 397. For other chattels the defendant is usually held when he had actual knowledge of the defect but not otherwise. Woodward v. Miller, 119 Ga. 618, 46 S. E. 847; Heindirk v. Louisville Elevator Co., 122 Ky. 675, 92 S. W. 608. But an action against the original vendor is allowed in the case of foods. Bishop v. Weber, 139 Mass. 411, 1 N. E. 154; Tomlinson v. Armour & Co., 75 N. J. L. 748, 70 Atl. 314. Thus where the plaintiff swallowed glass contained in a soda bottle the defendant was held though ignorant of its presence. Watson v. Augusta Brewing Co., 124 Ga. 121, 52 S. E. 152. But the principal case does not fall within this class of cases, because the injury was not from the consumption of the article as food. On similar facts the same decision was reached in O'Neil v. James, 138 Mich. 567, 101 N. W. 828. A recent English case showed a tendency to adopt a more liberal rule, allowing recovery to one other than a contracting party when the defect was unknown. White v. Stedman, 29 T. L. R. 563. But the principal case adheres to the old rule of requiring actual notice.

TRADE MARK AND TRADE NAMES. — INJUNCtion Against WORDS ALREADY USED BY RIVALS IS FRAUD NECESSARY? The plaintiff having been in business seventeen years under the name of "Los Angeles Van, Truck and Storage Co." seeks an injunction against the use of the name "Los Angeles Van and Storage Co." by a newly formed corporation, alleging that the similarity in the names is calculated to cause and will cause the public to deal with the defendant believing it to be the plaintiff. Held, that the injunction will not be granted. Dunston v. Los Angeles Van and Storage Co., 131 Pac. 115 (Cal.).

The court in the principal case argues that since the plaintiff's name is too descriptive for registration, he must prove intentional fraud. In considering the case from this point of view, however, it can be argued that since deception of the public and passing off of the defendant's goods as the plaintiff's are the natural and probable consequences of the defendant's choice of name, he should be responsible. Forster Manuf. Co. v. Cutter-Tower Co., 211 Mass. 219, 97 N. E. 74. It is not, however, necessary to follow this course of reasoning. Business reputation and good will have long been recognized by equity as property rights. See 26 HARV. L. REV. 442. Once it is proved that the public is mistaking the defendant's wares for the plaintiff's, this property right of the plaintiff's is being trespassed on, and equity should give relief. North Cheshire & Manchester Brewery Co. v. Manchester Brewery Co., [1899] A. C. 83. The court also argues that defendant's advertisements are literally true, since defendant is a Los Angeles van and truck company, and that equity will not enjoin telling the truth. Historically the fact that defendant was telling an untruth in the sense of misdescribing himself or his business aided in the gradual extension of equity jurisdiction. Now, however, this jurisdiction has been definitely extended to cover business reputation, so the truth or falsity of defendant's advertisements taken by themselves is not material. The only fraud that is essential is the fraud on the plaintiff in leading the public to mistake the defendant's wares for those of the plaintiff.

TRADE MARKS AND TRADE NAMES NATURE OF RIGHT. The plaintiff circulated throughout the city of St. Louis a blind advertisement consisting of nothing but the word "Stopurkicken," intending to follow this with an advertisement of his laundry. The defendant, however, anticipated him by appropriating the scheme to the advertisement of its envelopes. The plaintiff now sues for damages. Held, that he cannot recover. Westminster Laundry Co. v. Hesse Envelope Co., 156 S. W. 767 (Mo., St. Louis Ct. App.).

The principal case is clearly right in so far as it refuses to protect the phrase "Stopurkicken" as a trade name, because the right in a trade symbol or name cannot exist in the abstract, but arises solely from its relation to the business for which it stands. Weener v. Brayton, 152 Mass. 101, 25 N. E. 46; Cigar-Makers' Protective Union v. Conhaim, 40 Minn. 243, 41 N. W. 943. Nor can the plaintiff claim technically an injury to his good-will, because good-will is usually interpreted to mean the partiality of the public for a particular commodity or individual, and here the advertiser was unknown. See 16 HARV. L. REV. 135. But the mere lack of a familiar classification does not excuse the court for denying recovery. True, the interest to be safeguarded is intangible, but so is good-will. The plaintiff here has at heavy cost created a thing of undoubted value in the business world, and his loss is plainly demonstrable, much more so for example than damage to a man's reputation. It is novel situations like these that challenge the power of our law to expand, and the failure to do this in the principal case has permitted a defendant to escape liability though he has without justification inflicted serious practical loss.

TROVER AND CONVERSION - WHAT CONSTITUTES CONVERSION - FACTOR'S LIABILITY FOR SALE AUTHORIZED BY THE APPARENT OWNER. - The defendant, a factor, received cotton from a customer in regular course. It belonged, in fact, to the plaintiff. The defendant, in ignorance of the plaintiff's title, sold the goods and paid the proceeds to the customer. Held, that the defendant had not converted the cotton. Fargason Co. v. Ball, 159 S. W. 221 (Tenn.).

The principal case is contrary to the well-settled rule that when a defendant knowingly consummates the sale of a plaintiff's property, though in good faith and in ignorance of the plaintiff's title, he is liable for converting it. Consolidated Gas Co. v. Curtis [1892], 1 Q. B. 495; Flannery v. Harley, 43 S. E. 765. See 21 HARV. L. REV. 408. Tennessee, however, is committed to the view expressed in the principal case. Roach v. Turk, 9 Heisk. (Tenn.) 708. Kentucky has also taken this position, claiming that the burden of examining the titles of all produce shipped to commission merchants for sale would drive them out of business. Abernathy v. Wheeler, 13 Ky. L. Rep. 730. A pronounced tendency to break away from the technical rule of conversion in the interests of commerce is evident in other cases. A bailee who redelivers unlawfully deposited property to the bailor, the apparent owner, is clearly not liable to the real owner. Union Credit Bank v. Mersey Docks & Harlow Board [1899], 2 Q. B. 205. A common carrier who receives goods from the apparent owner and innocently delivers them in pursuance of the bailment is not liable in trover. Nanson v. Jacob, 93 Mo. 331, 6 S. W. 246. A carrier indeed stands in need of protection because he must take all goods rightfully delivered to him. But since the necessities of business force commission merchants to rely on appearances they are in fact as greatly in need of protection as are boilers and common carriers.

WATERS AND WATERCOURSES NATURAL LAKES AND PONDS - OWNERShip of Bed of Navigable LAKE. The state brought suit to quiet title to the bed of a lake, claiming that it was navigable in the technical sense. There were a number of sandbars and dead trees to obstruct travel. Held, that such a lake being navigable, title to the bed is in the state. State v. West Tennessee Land Co., 158 S. W. 746 (Tenn.).

This case is commented upon in this issue of the REVIEW on p. 80.

BOOK REVIEWS.

PENAL PHILOSOPHY. By Gabriel Tarde. Translated from the fourth French edition. By Rapelje Howell. Boston: Little, Brown, and Company. 1912. pp. xxxii, 581.

This work deals, according to the statement of the author in his foreword, with three different matters: First, an attempt to reconcile moral responsibility with scientific determinism; second, an explanation of crime in conformity with the views of the author; third, an indication of needed legislative and penal reforms suggested by the views previously presented.

The attempt to reconcile scientific determinism with moral responsibility is based upon the necessity of finding some foundation for moral responsibility other than free will. In an increasing number of cases it is becoming recognized and admitted that the criminal could not have done other than he did. The defense is able, more and more strongly, to rely upon the alienist in its attempt to prove that fact. If that fact, then, is recognized as a defense, we face, according to the author, a very real social danger in that in an ever

increasing number of cases the doer of an act inimical to the interests of society must be given immunity. At the most he is to be treated merely as an unfortunate.

But if the conception of free will and of moral responsibility based upon it are disappearing before the progress of scientific determinism, what has scientific determinism to offer in its place as a justification for repressive measures. It is this: The malefactor is an enemy to society. As an enemy, though on the inside, means analogous to those used for the repression of an enemy on the outside should be used. In the case of such an enemy the only question asked is as to the utility of the means used. The responsibility of the enemy is not a factor to be considered. The same is true in the case of the malefactor within society. The question to be solved is the finding of the most effective means of repression. The personal characteristics of the malefactor are important only in so far as they help to solve this question.

But the elimination, for the purpose of determining the liability of the malefactor, of the question of responsibility which is thus accomplished is contrary to the actual belief of practically every individual in society. Is it possible to reconcile that belief with scientific determinism? Tarde believes that it is, and that the reconciliation may be accomplished by an investigation of what men have always meant when they have declared one of themselves responsible, criminally or civilly.

Following out this thought, he makes responsibility depend upon the existence of two conditions: (1) the personal identity of the supposed criminal, and (2) his social similarity to the members of that society which claims the right to condemn him. By personal identity is meant psychological identity, a continuity of mental states showing no marked variation. By social similarity is meant a similarity in beliefs, feelings, tastes, and inclinations.

Whatever one may say as to theoretical soundness of such a view, there is no doubt that it offers a test of liability more in accord with existing institutions than the utilitarian test of the positivists.

Tarde, in his explanation of crime, accepts Ferri's theory of factors by which crime is declared to be the result of three factors classified as follows: anthropological, physical, and social. It is perhaps natural, in view of his requirement of social similarity as a test of responsibility that he should emphasize the social factors. Many who would be classed by the positivists as criminals would not be so classed by Tarde because of lack of psychological identity or social similarity. Among the social factors he finds the chief, indeed almost the sole, cause of crime in the strong tendency to imitation found in every individual.

This does not prevent the criminal from having his distinguishing characteristics, however. Tarde says, "Perhaps one is born vicious, but it is certain that he becomes a criminal." In the becoming he necessarily develops certain traits as one does in becoming anything else. Hence the criminal has a professional type distinguished by the marks of his profession.

The chief reforms advocated are the abolition of the jury and the alteration of the death penalty. The whole institution of the jury is declared to be defective in its foundations. Its results are declared to be uniformly bad, and it is said to lack even the doubtful merit of reflecting public opinion. The rational basis of penal law is said to lie in public opinion. This statement is in accord with the foundation of the theory of responsibility before mentioned, but seems hardly in accord with the statement just referred to. With respect to the death penalty, though its legitimacy is maintained and the arguments against it declared weak, it is suggested that its effectiveness is destroyed by the prejudice against it which prevents it from being put into actual operation. Hence it ought either to be abolished, or the form of administering it ought to be changed so as to in some measure overcome the prejudice against its use.

The book is a splendid contribution to the subject it discusses. Sometimes the wealth of learning possessed by the author seems to lead him into fields the exploration of which adds but little to the discussion in hand and makes the book more difficult reading than it would otherwise be. The views advanced are founded upon a long experience as a magistrate, and are especially valuable to those who are engaged in the application of law as it is.

O. S. R.

A COMPARATIVE STUDY OF THE LAW OF CORPORATIONS. By Arthur K. Kuhn. New York: Longmans, Green, and Company. 1912. pp. 173.

This little book is learned and interesting. After tracing the origin and development of the legal conception of a corporation in Ancient Times, in the Middle Ages, and in England, the author gives a summary of the laws of the principal countries of Continental Europe (excepting Austria and Russia) and of England and America, which relate to the organization and operation of corporations, considered with particular reference to the protection of creditors and shareholders. Within the limits of his space of course nothing more than a summary was possible, but in this summary the author has succeeded in giving a very clear presentation of the salient differences between (a) the law of Continental Europe and the Anglo-American law; (b) the laws of France and Germany and Italy and Spain and Switzerland; and (c) the laws of England and America.

The author prefers the German system the thoroughness and gelehrtheit of the German naturally fascinates a scholarly mind and seems to regard it as one to be applied generally. "What is required," he says, speaking of legislation and reform in England and America, "is an effective control over organization and administration; not a mere change in the association type" (p. 115). He considers that the German system, with its drastic penal laws, and with its provisions for publicity, and for a managing directorate, subject at all times to the control of the stockholders and the general supervision of the supervising council, affords the most effective guaranties for the protection of investor and creditor (p. 134). And, in accord with a widely current opinion of to-day, he assumes that "the overcapitalization of corporations has ever been one of the chief sources of evil resulting from the corporate form." As the author is considering the subject from the point of view of what is required for the protection of creditors and shareholders, this must mean that overcapitalization is an evil, so far as creditors and shareholders are concerned. But is this correct?

The author himself admits (p. 115) that "only the most ignorant will assume that the par value of a share of stock must necessarily be its real value." And is it not also true that only the most ignorant stockholder will so assume? The fact is that neither the creditor nor the investing stockholder ever measures the credit and responsibility of a corporation by its nominal capitalization, but solely by its assets and the character and ability of the men who are managing it. The creditor and the investing stockholder know that the capital stock, in so far as it exceeds the actual present assets of the corporation, represents merely an optimistic estimate as to its earning power. And looking at the matter broadly and beyond the interests of the creditor and investing stockholder of the particular corporation, must we not say that the evils of overcapitalization have been greatly overestimated, and that its advantages have been greatly underestimated or entirely disregarded? The panics of 1873 and 1893 did not result from the overcapitalization of corporations, nor were their evil effects accentuated by it. The Wall Street panic of 1884 affected