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fraudulent conveyances; yet a lawyer is compelled when a case comes before him to have in mind all the principles which may affect his client's right of realizing his claim from the assets of his debtor.

Not only is the plan of the book a good one, but the execution is in many respects commendable. The author is evidently practically familiar with the subject of which he treats in its most modern applications. He is not content merely to repeat the statements of eminent judges; he has sought to distil in his own mind definite results from a multitude of authorities. An author who attempts to do this is perhaps quite as likely as another to make slips, and Mr. Glenn's book is not free from them.

The size of the book prohibits an attempt to be exhaustive in the citation of authorities, and as the decisions selected for citation are generally well chosen, it is not a fair ground of criticism that numerous other cases might also have been cited. There are, however, statements which the author makes without qualification, as everywhere true, which in fact do not find universal acceptance, e.g., "In every State, statutes make a judgment a lien upon the debtor's land from the moment of the proper entry of the judgment" (page 60). This is not true in the New England States. "In all of our States are statutes requiring the registration of (a) chattel mortgages, where, as is generally the case, possession of the mortgaged property is not delivered to the mortgagee, and (b) contracts of conditional sale, where, as is always the case, that being part of the bargain, possession of the stipulated chattels is delivered to the vendee" (page 164). In Pennsylvania there is no such statute as to chattel mortgages, and in a number of States there is no such statute in regard to conditional sales. On page 231 the author assumes that a trustee under a general assignment nowhere has power to attack a fraudulent conveyance of his assignor, but in some jurisdictions he is allowed to do so.

Other slips of the author which we have noticed are the following: The well-known case of Edwards v. Harben, 2 T. R. 587, which the author criticizes more than once, he regards as involving a conditional sale with possession in the grantee. In fact, the bill of sale referred to in the case was given as a chattel mortgage (generally called in England a conditional bill of sale). Possession was in the mortgagor or grantor. On page 154 one might infer from the author's language that an unpaid vendor could reclaim goods sold and delivered. The essential requirement of fraud he inadvertently fails to state. In his discussion of the English law of the present day on mortgages of after-acquired property he assumes that the well-known case of Holroyd v. Marshall, 10 H. L. C. 191, is still law in England; whereas the English law was long since changed by statute. On page 344, speaking of the Bankruptcy Act, as amended in 1910, he inadvertently states that to make a preference voidable, the preferred creditor must have had reasonable cause to believe that the preference was "intended" instead of would be effected.

In the discussion on pages 399 and following, there seems some confusion between unmatured and contingent claims. That there is doubt in regard to the provability of any unmatured debt absolutely owing, cannot be admitted. On some points also which are open to difference of opinion, we should not agree with the author's conclusions, but throughout, the book is helpful and based on original and thoughtful work.

S. W.

THE INDIVIDUAL DELINQUENT. By William Healy. Boston: Little, Brown, and Company, 1915. pp. xvi, 830.

This remarkable work is perhaps the first great expression of the new epoch upon which criminology is now entering. It is also a culmination. Like so many other modern sciences, criminology has undergone a bewilderingly

rapid development since the day when Lombroso first deflected attention from "crime" to "the criminal." It was not long before Lombroso's dramatic abstraction was divided into classes of criminals. These divisions were effected along anthropological, biological, ethical, or psychological lines, according to the background from which the classifier approached his task. Professor Healy makes no such classification, but, as the title of his book implies, concentrates attention on the individual delinquent. In this study, which has involved the most painstaking investigation into hundreds of cases, he has brought to bear the knowledge and equipment of all the several related sciences. The investigation consists of a thorough inquiry into the history of the offender's family, his development, his environment, and an examination as to his physical and mental condition. The latter consists largely in the tests used for the feeble-minded which already show a promising development through adaptation to more complex and varied individuals. With the complete record before him, Professor Healy then isolates the causes of the delinquency.

It is in this last process that the book is a great step in advance of the earlier works, which contented themselves with a tabulation of the frequency of certain conditions among criminals. It was the older method that gave rise to such one-word theories of crime, as epilepsy, poverty, or impacted teeth. By sifting out the causative factors alone, however, and tabulating them, Professor Healy has given us a sounder basis for generalization. Also, by confining most of his attention to the juvenile offenders, he has got very close to the beginnings of crime. Among the many interesting things that Professor Healy's figures tend to show is that there is no inheritance of a criminal instinct. Mental defects, however, are inherited in great numbers of cases, and it is this inheritance, coupled with defective environment, that is a great source of crime. The author has given us a great pioneer book on the genetics of crime, and it is to such work that society must look for guidance in its endeavor to stop crime at the source.

Furthermore, by carefully selecting the causative factors in each individual delinquent, it then becomes possible to recommend a rational mode of treatment, either with a view to curing the delinquency, or to protecting society against the incurables. Indeed, as a psychiatrist, Professor Healy is chiefly interested in this opportunity. Such work should be made part of every criminal court in the land. It is perhaps difficult to bring it into harmony with the common-law method of conducting a legal duel between the offender and a heavily handicapped State, the penalty of losing having been more or less irrationally determined beforehand. Certainly, in theory at least, the methods of Professor Healy have no place in a system born of a mediæval need of public peace and security, and reared in a dread of all magisterial discretion. But the criminal law has grudgingly made room for a little science in the case of juveniles and prisoners suspected of mental aberration, and has allowed some individualization through the indeterminate and cumulative sentences. However, wholehearted coöperation has not yet come, and in the old system the new method must remain a juristic misfit. A fresh start in the theories of the criminal law is badly needed. But since it is obviously impossible to legislate a new mode of thinking, the change can only come by bringing the legal profession in touch with criminal science. The course in Penology at Harvard is a splendid, if belated, start. Were such courses more general, there is little doubt that the common law, by reason of its remarkable fecundity for legalistic white lies, could again extend itself to meet modern needs.

H. B. E.

BARTOLUS ON THE CONFLICT OF LAWS. Translated into English by Joseph Henry Beale, Royall Professor of Law in Harvard University. Cambridge: Harvard University Press. pp. 86.

Bartolus, lucerna juris, the greatest figure of the school of Commentators or Post-Glossators of the fourteenth century, was compelled, as a necessary part of the great task undertaken by that school, - the creation of a true common law, out of the materials furnished by the Corpus Juris, the Gloss, and local customs and statutes, to consider problems of Conflict of Laws. The relationships of the Italian city states, because of an expanding commercial development, were becoming closer and more intimate. Contracts were entered into in one city to be performed in another. Property, both movable and immovable, was frequently in the ownership of citizens of other cities. Intermarriages were frequent. Crimes and delicts were committed by strangers. Some solution of the juristic problems arising out of such conditions was imperative. The work of Bartolus was of authority for centuries and has value for us to-day. Probably to him rather than to any one else is due the first clear recognition of the principle that the lex loci governs the validity of the legal act: a contract or a testament; that the law of the place of performance controls as to all consequences arising from neglect or delay in performance; that the lex fori controls in matters of procedure and remedy; and that the law governing a delict is the law of the place where the delict occurred. Bartolus also recognized and took account of the distinction between laws operating only within the territory and laws which might have operation outside, a distinction of which so much was made in later continental writings on the Conflict of Laws.

The translation of those portions of Bartolus' Commentary on the Code relating to the Conflict of Laws was well worth doing, and, so far as it can be determined without a comparison with the original, it seems to have been thoroughly well done. The book, issued upon the six hundredth anniversary of Bartolus' birth, is, in appearance as well as contents, worthy of the occasion. E. R. J.

LEGAL PRINCIPLES OF PUBLIC HEALTH ADMINISTRATION. By Henry Bixby Hemenway, M.D. Chicago: T. H. Flood & Co. 1914. pp. xxxvi, 859. As everyone knows, the statutes and ordinances as to public health have vastly enlarged the actual scope of government. Hence this book. It will be valuable to health boards and health officers; for it gives in popular form the doctrines of law on their powers and liabilities. Among the topics covered in the part devoted to general principles are the relation of health administration to the three departments of government, the police power, due process of law, nuisance, the relations of the nation and the states, and liability for the contracts and torts of health boards and health officers. A discussion of special topics follows, covering quarantine, licenses, water, sewage, garbage, pure food and drug regulation, industrial regulation, school inspection, and eugenics. Thus it is obvious that the author takes a wide and useful view of his subject, and bears in mind the practical needs of health boards and health officers. Even the lawyer will find it convenient to have in one volume the doctrines and citations which are usually scattered among books on Contracts, Torts, Agency, Public Officers, Municipal Corporations, and Constitutional Law. Quite apart from the lawyer's possible practical use of the volume is the pleasure which he may well derive from the author's interesting mode of discussion; for the author has thought about his subject and has not compiled a collection of statutes, ordinances, and extracts from judicial opinions; and, besides, he has caught the lawyer's point of view so well that he thoroughly disarms the

hostility with which the lawyer has learned to open books wherein law is dealt with by laymen.

E. W.

THE LAW OF WILLS AND THE ADMINISTRATION OF ESTATES. By William Patterson Borland. Kansas City: Vernon Law Book Company. 1915.

pp. xv, 723.

This book is primarily intended for the Western lawyer, for the majority of the citations are from Missouri, Arkansas, Nebraska, Kansas, Oklahoma, Texas, Wyoming, Colorado, New Mexico, Arizona, Utah, Nevada, and California. Its usefulness depends largely on enabling him to find decisions on the law of wills in his state. The discussion of administration is too brief to be of much assistance in settling an estate. There is a greater need to-day for books on the administration of estates than on wills; and it is, therefore, disappointing to find that Mr. Borland has only devoted two chapters out of thirteen to that important subject. But beyond this we cannot hope that the author's intention "to make this the best one-volume work on the subject" will be realized. In spite of his statement that all the leading cases in this country and in England are included we find notable omissions from the index: Allen v. Maddock, 11 Moo. P. C. 427; White v. Trustees of British Museum, 6 Bing. 310; Bibb v. Thomas, 2 W. B. C. 1043; Chase v. Kittredge, 11 Allen 49; Lacey v. Dobbs, 63 N. J. Eq. 325. One important topic at least is hardly touched on,—the effect of revocation of probate. The reader is surprised to learn that the doctrine of incorporation by reference is stated (p. 51) as if it were law throughout the United States, though there is a marked dissent in several states and the question is open in others. Nor can we agree with the statement that "The witnesses may sign before the testator if the acts are practically contemporaneous" (p. 61), unless we add "in some states."

J. W.

WHY THE WAR CANNOT BE FINAL. By Albert W. Alderson. London: P. S. King and Son, Ltd. 1915. pp. 31.

THE ACT TO Regulate CommERCE AND SUPPLEMENTAL ACTS. By Herbert C. Lust. Chicago: LaSalle Extension University. 1915. pp. vii, 196, 141.

THE LAW OF CARRIERS OF GOODS. By Ralph Merriam.
tension University. 1914. pp. ix, 180.

THE PRINCIPLES OF EQUITY. By Edmund H. T. Snell.
By H. Gibson Rivington and A. Clifford Fountaine.
Haynes. 1915. pp. xlix, 638.

Chicago: LaSalle Ex

Seventeenth Edition.
London: Stevens and

LIMITATIONS ON THE TREATY-MAKING POWER. By Henry St. George Tucker. Boston: Little, Brown, and Company. 1915. pp. xxi, 444.

THE LAW OF ARREST IN CIVIL AND CRIMINAL ACTIONS. By Harvey Cortlandt Voorhees. Second Edition. Boston: Little, Brown, and Company. 1915. pp. xliii, 287.

THE COLLECTED PAPERS OF JOHN WESTLAKE ON PUBLIC INTERNATIONAL LAW. Edited by L. Oppenheim. Cambridge: University Press. xxix, 705.

1914. pp.

HARVARD

LAW REVIEW

VOL. XXVIII

JUNE, 1915

No. 8

LIABILITIES INCURRED IN THE ADMINISTRATION OF TRUSTS

Ν

IN the course of the administration of a trust, the trustee incurs

a liability on a contract or in tort or otherwise to one other than the cestui que trust. It is the purpose of this article to consider the rights and remedies, legal and equitable, of the person to whom a liability is thus incurred.

In the absence of an express stipulation relieving him from liability,' a trustee is personally liable on contracts made by him for the benefit of the trust estate. He may be sued at law and execution may be levied upon his individual property. This is true whether he was acting without authority in incurring the liability, or whether he was acting in accordance with the directions of the will or deed of settlement or under the direction of the court.2

1 The effect of such a stipulation is considered infra, p. 738.

2 Duvall v. Craig, 2 Wheat. (U. S.) 45 (1817); Taylor v. Davis' Adm'r, 110 U. S. 330 (1884); Hall v. Jameson, 151 Cal. 606, 91 Pac. 518 (1907); Bradner Smith & Co. v. Williams, 178 Ill. 420, 53 N. E. 358 (1899); McGovern v. Bennett, 146 Mich. 558, 109 N. W. 1055 (1906); Koken Iron Works v. Kinealy, 86 Mo. App. 199 (1900); Blewitt v. Olin, 14 Daly (N. Y.) 351 (1888); Whalen v. Ruegamer, 123 N. Y. App. Div. 585, 108 N. Y. Supp. 38 (1908); Dunlevie v. Spangenberg, 66 N. Y. Misc. 354, 121 N. Y. Supp. 299 (1910); Mitchell v. Whitlock, 121 N. C. 166, 28 S. E. 292 (1897); Fehlinger v. Wood, 134 Pa. 517, 19 Atl. 746 (1890); Connally v. Lyons & Co., 82 Tex. 664, 18 S. E. 799 (1891); Wardwell v. Williamson, 72 Vt. 183, 47 Atl. 786 (1900). See a collection of authorities in 40 L. R. A. N. S. 201.

An executor or administrator who makes a contract for the benefit of the estate is likewise personally liable thereon. WILLIAMS, EXECUTORS, 10 ed., pp. 1417 et seq.; WOERNER, AMERICAN Law of ADMINISTRATION, 2 ed., §§ 328-356. In many of the cases hereinafter cited the liability was incurred by an executor.

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