HARVARD LAW REVIEW.

Published monthly, during the Academic Year, by Harvard Law Students.

THE LAW SCHOOL. Several unexpected changes in the conduct of courses in the School have been necessitated by the ill health of Professor Williston. By the advice of his physician, Professor Williston will remain away for the remainder of the School year. His absence is much to be regretted, for by the thorough character of his work and his geniality of manner he has won the high regard of both the Faculty and the students. Of the courses which he conducted, Professor Ames has taken Bills and Notes for the remainder of the year, and First Year Contracts temporarily. The latter course is to be turned over on the 1st of February to Mr. George Rublee of last year's graduating class. Professor Beale has taken charge of Civil Procedure. With Mr. Rublee's coming, Professor Ames will reassume charge of Suretyship, which Professor Langdell has conducted in his stead since Professor Williston's absence.

LORD BLACKBURN. The greatest English common law judge of recent years, died on January 8, at his country place in Ayrshire, Scotland. He resigned his office as one of the Lords of Appeal in Ordinary in 1888, and it has been understood that his health has since been gradually failing. He was a Scotchman, born in 1813, educated at Eton, and at Trinity College, Cambridge, where he was eighth wrangler in 1835. In 1838 he received the degree of M. A., and in the same year was called to the bar at the Inner Temple, and joined the Northern Circuit. In 1845 he published his admirable little treatise on "The Effect of the Contract of Sale on the Legal Rights of Property and Possession in Goods, Wares, and Merchandize." This is almost a model text-book ; it has had a great influence in shaping the law, and it forms the basis of Benjamin's book, in those parts of the subject which it covers. Lord Blackburn said of this little book in 1883, in a private letter, that it "was written when I had literally nothing else to do, as I had then no business at all. I took great pains with it, more as a means of teaching myself than with any hope of making a valuable book: but now, after considerable experience, I am pleased to find how little I should alter,

if I were to write the book afresh." A second edition was published in 1885, edited by J. C. Graham. From Michaelmas, 1852, to Trinity, 1858, in the eight volumes of Ellis & Blackburn, and the one volume of Ellis, Blackburn, & Ellis, Blackburn was one of the reporters to the Queen's Bench.

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In speaking of his appointment to the bench in 1859, Foss says of him, in his Biographical Dictionary, with a tempered approbation which sounds oddly now : Though with no considerable business as a counsel, he was esteemed a sound lawyer, and after twenty years' experience at the bar he was appointed a judge of the Queen's Bench in June, 1859, and received the customary knighthood." He had never 66 taken silk," and it was a strange departure from precedent to appoint a man to be a judge who had not been Queen's Counsel; it created a great stir. It was Lord Campbell who did this. Campbell had become Chancellor on June 18, 1859, and as early as July 3 we find in his diary the following entry: "I have already got into great disgrace by disposing of my judicial patronage on the principle of detur digniori. Having occasion for a new judge to succeed Erle, made Chief Justice of the Common Pleas, I appointed Blackburn, the fittest man in Westminster Hall, although wearing a stuff gown; whereas several Whig Queen's Counsel M. P.s were considering which of them would be the man, not dreaming that they could all be passed over. They got me well abused in the Times and other newspapers, but Lyndhurst has defended me gallantly in the House of Lords."

Campbell, a Scotchman himself, and Chief Justice of the Queen's Bench from 1850 to 1859, had had Blackburn for his reporter for six of these years, and he knew his man. The wisdom of the appointment was soon abundantly shown. Blackburn's judicial opinions rank among the very best of his time. His later promotion, in 1876, to be one of the Lords of Appeal in Ordinary, was handsomely earned; and when he retired, about eight years ago, he had not his peer upon the English bench. Strong men remain there, but one hardly knows yet where to turn for that combination of sound thinking, exact and instructive discrimination, and large, rational, and just exposition by which the law of all English-speaking countries has profited for these many years.

A RECORD OF THE COMMEMORATIVE EXERCISES OF LAST JUNE. -The Harvard Law School Association has just published, in pamphlet form, an account of the exercises of June 25 last. These exercises, it will be remembered, marked the ninth annual meeting of the Association, and, more particularly, the twenty-fifth anniversary of Professor Langdell's appointment as Dean of the School. The notable gathering on that occasion was in his especial honor. The well known portrait of Professor Langdell, painted by F. P. Vinton, Esq., and reproduced in the HARVARD LAW REVIEW for March, 1893, is here excellently reproduced as the frontispiece of the pamphlet. Then follow, in full, Sir Frederick Pollock's oration, delivered in Sanders Theatre, and the after-dinner addresses of the invited guests given in the Hemenway Gymnasium. The oration is too widely known to need further comment; but it may not be amiss to direct particular attention to the addresses of President Eliot and Professor Langdell, for they contain much of interest concerning the vicissitudes, the bold experiments, and finally the material and intellectual

success which have characterized the Law School within the last twentyfive years. As an example of graceful and felicitous introduction, the closing paragraph of Hon. J. C. Carter's address, introducing Professor Langdell, has been rarely surpassed.

THE ROMAN AND THE COMMON LAW. The address delivered by Judge William Wirt Howe, of New Orleans, before the American Bar Association last summer has recently been reprinted in pamphlet form. He outlines in a very attractive manner the several ways in which the Roman law has exercised an influence on our law, wisely saying little about Roman Britain and much about Anglo-Norman ecclesiastics. Students of Germanic legal history will perhaps find him too generous to Rome when he comes to an enumeration of some institutions and doctrines of ours which show civilian influence. The use of the fine, for instance, in conveying land, can scarcely be connected with the in jure cessio of the older Roman lawyers. The in jure cessio was a collusive suit which ended with a recovery by judgment, and not with a "fine," or compromise (concordia finalis). Furthermore, the Roman device did not preclude the claims of third parties. On the other hand, the use of collusive suits to convey land was known to the courts of the Frankish Empire, and the gerichtliche Auflassung which developed from the Frankish practice was the most important, possibly the sole, mode of conveying land in Germany during the later Middle Ages. The procedure is substantially that of the English fine, and the one whom the court puts in possession is protected after a year and a day by the court's ban. There would seem to be no reason to look beyond the Germanic systems of law for the origin of the fine. (See Pollock and Maitland, Hist. of Eng. Law, vol. ii., pp. 94, 95.) The same may be said of many another English practice or rule of law. The accident of resemblance, and in some cases the partially Romanized terminology of our law, have more than once led writers to give undue credit to Rome.

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REPORT OF COMMISSIONERS OF CODE REVISION IN NEW YORK. the 11th of December, the Commissioners appointed by Governor Morton last June to study codes of procedure in operation outside of New York, and submit propositions as to the best means of revising, condensing, and simplifying the present New York Code, reported to the Legislature the result of their six months' work. Six months has proved too short to allow a full performance of the duties imposed upon the Commission. Accordingly the Commissioners make no attempt to suggest in detail the features of the new code: nor have they found it practicable in the limited time to make a comparative study of the various State and foreign procedure codes. Such an examination of other codes and specific propositions for a revised New York Code are to be reported a year hence.

The first part of the present report deals with civil procedure in ancient countries, including in its range systems of procedure as widely separated, geographically at least, as those of ancient Ireland, Greece, Persia, and Hindustan. The second part contains a list of modern states and countries, with an enumeration in case of each, of the codes, statutes, and other sources of information regarding the procedure in

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vogue. The third and last division of the report gives in outline the history of civil procedure in New York. According to the Commissioners' computation twenty-five hundred code amendments and statutes relating to practice, enacted since the organization of the State government, besides hundreds of special, local and temporary acts, represent the tortuous evolution of the present unsatisfactory code. tions thrown out as to the general lines along which reform should be made, indicate an inclination on the part of the Commissioners to revise and expand the present code, rather than create a new one. The proposition, however, to extend the scope of the code so as to include as procedure "whatever requires the attention of a court in enforcing or protecting the rights of citizens" - however remote its application cannot escape much adverse criticism. The test of inclusion is too indefinite. Simplicity and uniformity of procedure are not associated with a miscellaneous code.

The report has, on the whole, broken the ground well for the work to follow; and for this the Commissioners are deserving of praise. But the report has done little more than this, and the crucial task of revision yet remains. Despite the care which characterizes the present report, it still seems better to put the task of revision on free shoulders; not to add it to the burden of revising the General Statutes, which is already imposed upon the Commissioners.

EXTRADITION PROCEEDINGS WHAT LAW DETERMINES CRIMINALITY OF ACT? If the United States demands of Canada the extradition of a fugitive from justice, must it be proved before the Canadian tribunal that the act charged is a crime according to both United States and Canadian law? If not, which law is to be considered? The Extradition Act of Canada, following the usual language of treaties, provides that a prisoner shall be surrendered only upon such evidence of criminality as would, under Canadian law, justify his committal for trial if the crime had been committed in Canada. At first glance it would appear that Canadian law should determine merely this question of the amount of evidence necessary, and that, as the crime, if any, has been committed against the laws of the United States, those laws alone should determine substantively whether or not there has been a crime. And that is the opinion expressed by Armour, J., in Re Phipps, 1 Ont. R. 586, 609-610, and by the majority of the court in In the Matter of John Anderson, 20 U. C. Q. B. 124. But such treaty or statutory provisions have generally been interpreted as providing that the laws of the surrendering country must be considered, not only on points of evidence, but also on the ultimate question of whether the act alleged constitutes one of the extradition crimes. (See In re Windsor, 6 B. & S. 522.) And the weight of Canadian authority is to that effect. In re Smith, 4 U. C. P. R. 215; Moore on Extradition, § 429, and cases cited.

The further question, as to whether the act must also be shown to be a crime according to the laws of the demanding country, was raised in the recent case of In re Murphy, 22 A. R. 386 (as abstracted in 31 Canada Law Journal, 594), and the Court of Appeals of Ontario was evenly divided in its answer. The language of the Extradition Act seems to be equally susceptible of either interpretation, so that the question is left to be decided on general principles. The opinion expressed by the

two judges, who held that it must be proved that the act alleged was a crime in the United States, seems clearly preferable, though accompanied by the apparently mistaken assertion that it must also be a crime of the same name in Canada. The chance that an act which is one of the extradition crimes under the law of the surrendering country, will not be a crime at all in the demanding country, is certainly slight. And if the criminality of the act under the former law is shown, the burden of proof may well be cast on the prisoner to show that it is not a crime according to the law of the demanding country. But if he satisfies that burden of proof, he clearly has shown himself guiltless of crime, and should go free. It is believed that this view is in accord with the weight of authority. In re Bellencontre, [1891] 2 Q. B. 122; Re Phipps, 1 Ont. R. 586; Moore on Extradition, § 429.

WHEN WILL DECEIT LIE ON A BROKEN PROMISE?- In a recent Missouri case, Traber v. Hicks, 32 S. W. Rep. 1145, the defendant had contracted with the plaintiff to do a certain thing, without disclosing that a previous contract with a third party prevented performance. The plaintiff brought an action of deceit. The argument that the defendant's wrong was a mere breach of contract was dismissed by the court, and the plaintiff was allowed to recover, on the ground that there was concealment of a material fact, namely, the outstanding agreement with the third party, which it was the defendant's duty to disclose. As the other elements of deceit were present, the case was without doubt rightly decided. It suggests the query as to whether the court would have been willing to go one step further, and hold the defendant liable for deceit if he had not put it out of his power to perform, but had merely intended not to perform, at the time he made the promise.

This question has not often arisen, as generally the simpler remedy is to be obtained in an action of contract. But it becomes material in cases where, for one reason or another, it is either inexpedient or impossible to obtain redress in the latter form of action. What little authority there is on the point is in conflict. The latest treatise on torts contains an assertion to the effect that an action of deceit does not lie for failure to perform a promise, though the promisor never intended to perform, and the promisee has altered his position and suffered damage. 1 Jaggard on Torts, 583. And the view that such an act is not fraudulent has been taken by a few courts. Fenwick v. Grimes, 5 Cranch C. C. 439; Banque Franco-Egyptienne v. Brown, 34 Fed. Rep. 162, 192. On the other hand, it is generally held that preconceived design in a buyer not to pay for the goods is such fraud as will vitiate the sale. (See the exhaustive opinion of Doe, J., in Stewart v. Emerson, 52 N. H. 301.) And in other cases a promise made without intent to perform, merely to induce some act on the part of the promisee, has been held fraudulent. Dowd v. Tucker, 41 Conn. 197; Goodwin v. Horne, 60 N. H. 485.

The simple question, apparently, is whether there is any misrepresentation of a present fact. As a promise relates to the future, courts have jumped at the conclusion that there is none. But a promise to do an act

in the future certainly carries with it a representation of present intention to perform, just as certainly as the promise in Traber v. Hicks, included a representation that the promisor had not put it out of his power to perform. And that a representation of present intention is a statement of