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and the sale is of a specific quantity, and not of a fractional part of the mass, no title to an undivided share of the whole passes. Austen v. Craven, 4 Taunt. 644. As then title did not pass at the time of sale, and among the acts still to be done was delivery to the buyer's agent, title did not pass before such delivery. SALE OF GOODS ACT, 1893, § 18 (5). See WILLISTON, SALES, $ 276. Did the delivery to X., then, pass title to the defendant? In saying that title passes according to the intent of the parties, it must be remembered that it is the expressed intent which counts, and if the only interpretation of the seller's actions must be to pass title to the defendant, title would so pass regardless of his secret intent. Wigton v. Bowley, 130 Mass. 252. Cf. Bragdon v. Metropolitan Ry., 2 A. C. 666. But in the principal case the expressed intent of the seller was ambiguous. It was capable of being understood by X. in two ways without any negligence on his part. Under these circumstances the seller should be allowed to show the mistake, and no title would pass to the defendant. Campbell v. Mersey Docks, 14 C. B. R. (N. S.) 412. Cf. Raffles v. Wichelhaus, 2 H. & C. 906. This would be equally true whether X. was regarded as defendant's personal agent or merely as an agent for transportation. Did the title pass to the plaintiff? If X. was considered as the defendant's personal agent, there would be no implied authority in the seller to appropriate by delivery for the buyer, but consent by the plaintiff's agent to the appropriation at the time of delivery would be necessary. If X. was regarded merely as an agent for transportation, there is some force in the court's argument that the seller has without negligence made an appropriation according to the terms of the contract, to which the buyer must be taken to assent. But it is a question whether the appropriation was a proper one, since X. was not bound as between X. and the seller to deliver to the proper party, and no cause of action would accrue to the plaintiff against X. in case of misdelivery. It might well have been held that the case fell within the rule of misdirected articles. American Jewelry Co. v. Witherington, 81 Ark. 134; Woodruff v. Noyes, 15 Conn. 335; Tinn v. Clark, 94 Mass. 522. But even if the title remained in the seller at the time of delivery, the case may perhaps be supported on the ground that the acts of the seller amounted to an offer to pass the title, which was accepted by the plaintiff by electing to treat the goods as his. See Wald's POLLOCK ON CONTRACTS, 3 ed., 12.

TENANCY IN COMMON - CONVEYANCE BY METES AND BOUNDS - PARTITION. - A tenant in common of a nety-nine acre tract conveyed by metes and bounds twenty-seven acres thereof to the defendant in this partition suit. The defendant thereupon improved the parcel. The plaintiff, a co-tenant on the ninety-nine acre tract, now seeks partition of the twenty-seven acres. Held, that the ninety-nine acres exclusive of improvements will be valued and if the twenty-seven acres do not exceed the grantor's share they will be allotted the defendant. Highland Park Mfg. Co. v. Steele, 235 Fed. 465.

A conveyance by metes and bounds of. a parcel of a larger tract, by one of several tenants-in-common of the larger tract, cannot give good title to that parcel, for the grantor does not own it. Duncan v. Sylvester, 24 Me. 482. Nor can the deed operate to convey the grantor's undivided interest in the entire tract, for it does not purport to. Soutter v. Porter, 27 Me. 405. The grantee in such a case cannot even obtain the tenancy in common of the grantor as to the part specified, for courts refuse to allow such a conveyance on account of the difficulty, if not impossibility, of partitioning the whole tract under such circumstances. See Boggess v. Meredith, 16 W. Va. 1, 28. But cf. Mora v. Murphy, 83 Cal. 12, 23 Pac. 63. But, if the conveyed parcel should on partition of the whole tract fall to the grantor, it will by estoppel pass to his grantee. See Soutter v. Porter, supra, p. 417. Moreover, lands improved by a co-tenant will on partition be awarded him if his co-tenants will not be prejudiced. Noble v. Tipton, 219 Ill. 182, 76 N. E. 151. It seems therefore that the court should re

gard the grantee's equity and on partition should allot the parcel to the grantor, or as a short cut directly to the grantee. McNeil v. McDougall, 28 N. S. 296. But in the principal case there is a further difficulty. Partition is asked of the parcel alone. It is well settled that partition of a part of a larger tract held in common will not be granted. It would seem that the plaintiff's bill should on this ground have been dismissed. Barnes v. Lynch, 151 Mass. 510, 24 N. E. 783; Emeric v. Alvarado, 90 Cal. 444, 27 Pac. 356. Moreover, the defendant's cross bill for a partition of the whole is ineffectual, for while he may, as shown, obtain rights on partition, before that he has no rights against the grantor's cotenants and therefore cannot demand partition. Soutter v. Porter, supra. The court evidently considered that it had power to make partition of the whole so as to determine equitably the interests of all parties, because the jurisdiction of equity had been invoked in the matter. But a court of equity cannot give relief beyond the scope of the pleadings. Waldron v. Harvey, 54 W. Va. 608, 46 S. E.


TORTS — DEFENSES STATUTORY AUTHORITY. A metal post owned by the defendant street car company, which was operating under legislative franchise, became electrified without its fault. The plaintiff touched it and was burned. Held, that the plaintiff may recover. Fullarton v. North Melbourne Electric Tramways & Lighting Co. Ltd., (1916), Vict. L. R. 231.

For a discussion of this case, see Notes, P. 377.

WATERS AND WATERCOURSES FLOOD WATERS - ACCELERATING FLOW BY ARTIFICIAL DEPRESSIONS. The Colorado River at the time of the formation of the Salton Sea was doing unprecedented damage by inundating large portions of the country and was threatening the defendant's valuable irrigation system. The river had permanently left its old channel and was making rather successful efforts to cut a new one. The defendants caused the rock which was retarding the cutting of this new channel to be blasted and the result was a rapid flow of the water from off the submerged territory, and a resulting erosion and gullying of the plaintiff's land which had been submerged. Held, that the plaintiff cannot recover. Jones v. The California Development Co., 52 Cal. Dec. 473. Under the “

common enemy” rule, often miscalled the common law rule, surface waters may be fought off by landowners in any way they see fit regardless of consequences. Gannon v. Hargadon, 92 Mass. 106; Bowlsby v. Speer, 31 N. J. L. 351; Cairo E Vincennes R. Co. v. Stevens, 73 Ind. 278. See 14 Harv. L. Rev. 390. But California has adopted the so-called “civil law rule” of surface waters. Ogburn v. Connor, 46 Cal. 346. Under this rule the natural course of drainage cannot be interfered with, and a right is recognized to have surface water pass in its natural channels. See DOMAT, CIVIL LAW, Cushing's ed., $ 1583. But even under the civil law rule, a landowner may reasonably improve natural drainage and hasten the flow of water from his lands, over the lands of a lower proprietor without liability for resulting damage. Pohlman v. Chicago, etc. R. Co., 131 Ia. 89, 107 N. W. 1025; Sowers v. Schiff, 15 La. Ann. 300; Guesnard v. Bird, 33 La. Ann. 796. Thus the principal case can be supported by regarding the waters of the vagrant river as surface waters and the method of drainage a reasonable one. If, however, the waters be considered as flood waters, the ordinary rule does not apply, and the owners of land along the river have a right to construct levees or embankments for the protection of their lands from the ravages of the flood. Cubbins v. Mississippi River Commission, 241 U. S. 351. And this is true although the effect thereof may be to prevent the free discharge of such flood waters as may tend to increase the flow of water upon lands not similarly protected. Lamb v. Reclamation Dist., 73 Cal. 125, 14 Pac. 625; McDaniel v. Cummings, 83 Cal.

515, 23 Pac. 795. Nor should the rule be affected by the fact that the channel is deepened, as here, by being depressed below the surface instead of by elevating the banks by the erection of levees. The court in the principal case, however, has apparently reached its conclusion, not by placing the case within the technical confines of any of these rules, but by generally determining the rights of the parties by the reasonableness of their actions. See 2 FARNHAM, LAW OF WATERS, Š 889.



lated by Henry P. Horton. Boston: Little, Brown & Company. 1916.

pp. xxxi, 706. Seven years ago the American Institute of Criminal Law arranged, as a part of its educational work, to secure the translation of some of the more important foreign treatises on criminology. Dr. Bonger's work appears as the eighth number of this Modern Criminal Science Series.

William A. Bonger is a prominent Dutch publicist who has given special attention to the problems of crime. He is the author of “Religion and Crime" and numerous articles in Dutch and German periodicals on crime and its treatment. The Socialist point of view is very apparent in Dr. Bonger's writings, and it is doubtless the desire to bring before American readers the views of criminality held by this important school of European thought that has led to the selection for translation of “Criminality and Economic Conditions."

In style of presentation Dr. Bonger is somewhat academic. Almost half of the work is devoted to a critical exposition of the literature dealing with the relations of criminality and economic conditions. Space is even taken for the presentation of the views of men like Thomas More and Rousseau who wrote before the birth of modern criminal science. More recent writers are grouped under the titles Statisticians, Italian School, Bio-Socialists, Spiritualists, and others. The views of each are suggested by extracts and interpretations. Where Dr. Bonger differs in opinion he states his criticisms forcibly. Of one author he says that a complete criticism would require “a whole book, great is the number of his errors and omissions.”

In summing up this review of the literature the author finds that a very small proportion of the writers deny the existence of a relation between criminality and economic conditions — the great majority are of the opinion that economic conditions occupy a more or less important position, but that other factors are also at work while a small number are of the opinion that the influence of economic factors is sovereign. Of the third group Dr. Bonger says, “I have been able to find no inaccuracies in the foundations of their theses."

Part Two of “Criminality and Economic Conditions” contains the author's own discussion of the problem of crime. In the opening chapter one finds a brief but effective statement of the orthodox Socialist view of the present economic system. From the essential injustice of the system flow the outstanding evils of society. Prostitution is “the consequence of existing social conditions, which, in their turn, spring from the economic system of our time.” “Alcoholism has its deeper causes in the material, intellectual and moral poverty created by the economic system now in force.” Militarism is “a consequence of capitalism."


With regard to crime, the subject under consideration, the discussion is detailed and evidence is presented in abundance. While some crimes are more immediately economic the author finds all traceable to economic causes. Even in the crimes of degenerates the social and economic causes of degeneracy are the ultimate factors.

Upon the evidence reviewed the author claims that we have a right to say that "the part played by economic conditions in criminality is preponderating, even decisive." This conclusion he considers to be the most optimistic of criminological theories, for since crime is the consequence of economic and social conditions, we can combat it by changing these conditions, and humanity may look forward to the possibility of "some day delivering itself from one of its most terrible scourges.”

In the opinion of the reviewer Dr. Bonger's work as translated is a valuable addition to our American literature on criminology. It is a partisan statement, but is a much-needed corrective to the numerous individualistic interpretations of crime recently published. It may be that lawyers especially need to consider these Socialist views of crime.



Tucker. New Haven: Yale University Press. London: Humphrey Milford. Oxford University Press. 1916. pp. X, 204. The present volume is an elaboration of the Storrs lectures, recently delivered by the author at the Yale Law School. Mr. Tucker attacks the proposed constitutional amendment, providing that no state shall restrict suffrage because of sex, on the ground that it violates the fundamental principles of the Constitution by destroying local self-government in a most important respect, and that such a “break in the Constitutional wall” would be almost certainly enlarged in the future (p. 150). To sustain his indictment of the proposed amendment, he quotes at length from the debates of the Constitutional Convention, and cites the Tenth Amendment as a specific establishment of state control of suffrage. The only limits upon such control have been in the Fifteenth Amendment. It, with the two other post bellum amendments, made changes in the Constitution as organic as the suggested Eighteenth Amendment would make, Mr. Tucker admits; but omitting from consideration their doubtful wisdom, they were the direct products of the Civil War, and hence no precedents for the suffrage amendment.

Mr. Tucker's argument, it will be seen, is directed primarily to the psychological effect of adoption of the suffrage amendment; that it is constitutionally impolitic per se is of lesser importance. But, for the state-rights idea to be destroyed, it must first have a present existence and potency. The assumption of such a potency is the fundamental fallacy in Mr. Tucker's argument. That the preservation of the sovereignty of the state once dominated constitutional thought, is true; that it so dominates now is obviously not. The Civil War and the subsequent amendments have combined with changes in the nature of the country, to make precarious even the continued existence of the staterights conception. Economic pressure has increased the tendency to centralize at the expense of state powers. The sovereignty of the state, in a true sense, has already passed away; and to a new generation of lawyers there may seem nothing strange even in the abolition of the historical states as the units of local government, and the substitution for them of economic units in harmony with

1 Cf. Former Atty.-Gen. George W. Wickersham, “Confused Sovereignty," 11 ILL. L. Rev. 225, with "The Failure of the States,” 9 New REPUBLIC 170, and Harold J. Laski, “Sovereignty and Centralization," 9 NEW REPUBLIC 176.

efficient administration. The state-rights idea is to-day without power. It has now passed where no future amendment to the Constitution can ever injure it. The suffrage amendment cannot change constitutional thought, for constitutional thought has already changed beyond it.

But Mr. Tucker's book illustrates not only the persistence of old habits of thought, but also the strength of the allegiance which that brilliant, flawless conception, state sovereignty, attracted. Here we have the able successor of Calhoun, the worthy descendant of Randolph and of earlier Tuckers. The book is the last gallant lance in behalf of state rights. It marks the end of an



EQUITY AND ITS REMEDIES. By Charles Neal Barney. Boston: G. A. Jack

son. 1915. Pp. xxxiii, 252. This volume attempts to give in a small compass a simple, yet comprehensive, survey in outline form of the principles of equity jurisdiction. There is no attempt to discuss or analyze these rules, so that the book is of little value to the student. However, the full citation of Massachusetts cases, conveniently arranged under appropriate headings, makes the book valuable to Massachusetts practitioners as a “first-aid” manual of reference. Aside from the chapter on Reparation and Prevention of Torts, which contains some new matter not readily found elsewhere, the work can hardly be termed a permanent contribution to the literature of this branch of the law.

THE WAR AND HUMANITY. By James M. Beck. New York and London: G. P.

Putnam's Sons. 1916. pp. xi, 322. THE DEPORTATION OF WOMEN AND GIRLS FROM LILLE. Translated textually

from the Note addressed by the French Government to the Governments of Neutral Powers on the conduct of the German Authorities towards the population of the French Departments in the occupation of the enemy.


Laws. By Arthur B. Honnold. Two Volumes. Kansas City: Vernon


Wellington Husband. Princeton: Princeton University Press. 1916.


ING ELECTRIC Law. By S. Walter Jones. Second Edition. Kansas City:

Vernon Law Book Company. 1916. pp. xxiv, 1065. THE ROCKEFELLER FOUNDATION: ANNUAL REPORT. 1915. New York: The

Rockefeller Foundation. OPHTHALMIC JURISPRUDENCE. By Thomas Hall Shastid. Chicago. 1916.

pp. vi, 147. A TREATISE ON FEDERAL IMPEACHMENTS. By Alex. Simpson, Jr. The Law

Association of Philadelphia. 1916. pp. 230.

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