done to another by the fire, for it shall be intended that the servant had authority from his master, it being for his master's benefit."

In Hern v. Nichols,1 “Holt, C. J., was of the opinion that the merchant was answerable for the deceit of his factor, though not criminaliter, yet civiliter; for seeing somebody must be a loser by this deceit, it is more reasonable that he that employs and puts a trust and confidence in the deceiver should be a loser than a stranger."

In Lane v. Cotton,2 an action against the postmaster-general for the loss of certain exchequer bills which had been delivered at the post-office, Lord Holt said: "What is done by the deputy is done by the principal, and it is the act of the principal, who may displace him at pleasure, even although he were constituted for life." And again, "It is a hard thing to charge a carrier; but if he should not be charged, he might keep a correspondence with thieves, and cheat the owner of his goods, and he should never be able to prove it."

I find no evidence in these opinions that Lord Holt was carried away by the use of formulas whose application he did not understand. Nor can I assent to the view that this enlarged responsibility of the principal is so irrational as to be accounted for only by some illogical working of the judicial mind. The most careful person will sometimes be careless, and for those careless acts the law holds him responsible. The most carefully selected servant engaged in his master's business will sometimes be careless. Upon what ground should the person for whose benefit the business is carried on be held to a greater degree of liability in the one case than in the other? It can readily be seen that if any other rule had been established, there would be an enormous inducement to every man carrying on a business in which accidents were likely to happen, and damage was likely to be done, to get himself incorporated, and have his work done by agents for whose torts he need not answer.

I have taken here two instances of legal criticism, by writers of the highest authority, for the purpose of giving point to the question whether any limit may properly be set to the criticism of cases.

Professor Gray suggests a new reason for an old rule, and upon the strength of that suggestion attacks a decision which is plainly sound, if the reason which has been given by the judges for two hundred years is sound.

Judge Holmes suggests a remote historical explanation for a well-established rule which he declares to be an absurdity and an anomaly. But the judges by whom that rule has been enunciated and applied, the most eminent of their time, have been quite unconscious of the historical influence, and have never recognized the absurdity.

Neither of these writers would wish to be called a law reformer, meaning by law reformer a person who is ambitious to write a code. They aim, not at the improvement of the law by legislation, but rather at such improvement in its study and in its administration as shall render its principles more intelligible, and its application more certain.

How far do these speculations tend to clear up the knotty points of the law? Are we to take nothing for granted? Are we to argue every question de novo, as if the decisions of the last two hundred years had settled nothing? Are we to reconstruct our precedents by declaring that the grounds upon which the decisions are made to rest are not the true grounds?

The criticism of a case because it is opposed to another case, or to a principle which has been established and defined by a line of cases, - all this we understand. But to criticise a case because it is opposed to a principle which the writer would be glad to see recognized, as more rational or as offering a fairer ground for the decided cases to rest upon than any which the courts have seen fit to adopt, what is this but a beating of the air? How does such criticism help us to a sound judgment of cases and a correct application of principles?

Jabez Fox.

HARVARD LAW REVIEW.

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

A MASSACHUSETTS ACT MAKING THE RECORD OF INSTRUMENTS AFFECTING THE TITLE TO LAND CONCLUSIVE EVIDENCE OF DELIVERY. One of the provisions in the Acts and Resolves of Massachusetts for 1892 is a long step in the right direction. The Act reads: "The record of a deed, lease, power of attorney, or other instrument duly acknowledged or proved in the manner provided by law, and purporting to affect the title to land, shall be conclusive evidence of the delivery of such instrument, in favor of purchasers for value without notice, claiming thereunder." It would seem in the line of reason and convenience for the Legislature to go further, leave out the restriction to purchasers for value, and so reverse the law as laid down in the leading Massachusetts case of Maynard v. Maynard, 10 Mass. 456. A man should be prevented from denying that a document which he has recorded is a deed, even where it is a pure gift, as in Maynard v. Maynard. If it is a mere private memorandum, it has no business on the public records. Still, much the most important thing is to protect innocent purchasers; and the new Massachusetts statute sets a good example to the other States, in most of which the registration of a deed is merely prima facie evidence, and the presumption may be rebutted even as against purchasers for value without notice.

BUILDERS' CONTRACTS WITH ARCHITECTS' CERTIFICATE; THE TRUE GROUND OF THEIR DECISION. The rule so readily accepted by the Washington Supreme Court, Craig et al. v. Geddis, 30 Pac. Rep. 396, in regard to builders' contracts and the necessity of producing the architects' certificate required by the contract, had better be put on the true ground, — hardship. The defendant's promise to pay was conditioned expressly on a certificate being produced from the architect that the work had been done satisfactorily. The plaintiff attempts to recover without so producing. And the court ruled, in substance, that where there has been substantial compliance with all the terms of the contract, and nothing remains to be done which is practicable and reasonable to require, there is no need of producing the certificate.

Two well-settled rules of express conditions are,

Express conditions must be performed, not alone in spirit, but in letter. But prevention by the defendant of performance of the condition will excuse non-performance.

A descending scale of prevention of performance of this particular condition might be thus written: (1) prevention directly by the defendant, or indirectly by his collusion with the architect; (3) prevention by fraud on the part of the architect; and (3) prevention by the unwillingness or unreasonableness of the architect. But of these three, only (1) has the quality of prevention laid in the above rule; namely, prevention by the defendant. Authority and principle agree that (1) excuses non-performance; but on (2) and (3) they part company, (2) being the more conservative rule adopted in this country, Chinn v. Schipper, 51 N. J. Law, 1, and (3) the more general rule, Nolan et al. v. Whitney, 88 N. Y. 648; Bentley v. Davidson, 43 N. W. Rep. 139.

Often the proposition is confounded with the rule of implied conditions, that. after part performance the breach must go to the essence. So in builders' contracts the question is put, as in the principal case: Has there been substantial compliance? But when this is done, the real nature of an express condition is lost sight of. An express condition is one mutually agreed by the parties to be binding; and when there is a contract already expressly made by the parties, the court must not find another in its stead.

After all is said, the facts remain that the condition is a very common one and a very hard one. Either the condition had to be changed by the builders, or its interpretation by the courts. And the change has been made by the courts rather than by the building fraternity.

THE LIABILITY OF MUNICIPAL CORPORATIONS AS CONSTRUCTIVE TRUSTEES. The opinion of the Supreme Court of Pennsylvania in the Franklin Will Case (In re Franklin's Estate, 24 Atl. Rep. 626) is in more ways than one a disappointment. The subject is surely of importance to justify an opinion of average clearness and care; but the court succeeds in keeping two possible grounds for its decision vaguely shadowed forth so impartially that it is impossible to pick out either point as absolutely decided. To add to the flimsiness of their opinion, they refrain from quoting authorities on either point.

Benjamin Franklin left £1000 to the city of Philadelphia, to hold in trust, to lend at interest for one hundred years, at the end of which time part was to be appropriated to municipal objects, and the rest accumulated another century, to be divided finally between the city of Philadelphia and the State of Pennsylvania. The present appellant from the Orphans' Court, where the petition for an account was brought, claim that the trusts are void, and that they are entitled as representatives of the next of kin and the claimants under Franklin's residuary legatees.

The court grants for the present purpose that the trust for accumulation was illegal, and the bequest for that reason void. "It does not, however," they say, "necessarily follow that the fund was impressed, in the hands of the city, with a trust in favor of the residuary legatees or the legal representatives of the testator, or that the city, in virtue of its acceptance of it, became a trustee for the appellants, and, as such, liable

to account to them in the Orphans' Court." The last part of this sentence suggests the possibility that the court only wishes to say that the Orphans' Court has jurisdiction of express trusts only, and that therefore this case belongs to the Court of Common Pleas. If so, their expressions are most unfortunate; and it really seems impossible to escape the belief that they intend to say that a municipal corporation is not liable as constructive trustee when an express trust fails, so that an individual would be liable. A corporation, they say, being the creature of law, can have only those capacities which are imparted, and exercise only those powers which are expressly, or by necessary implication granted to it.. In the absence, therefore, of an express grant of power to accept and hold property upon purely private trusts, and to execute such trusts, it can no more do so than can a nonentity." This last point is the only one on which they quote authorities, — one a dictum from Judge Sherwood, who is speaking of express trusts, and says that a municipal corporation cannot administer them for purely private purposes; the other, Mayor v. Elliott, 3 Rawle, 170, where nothing is said on the subject, and the decision is that certain trusts were good, as among the objects for which the corporation existed.

After supporting a point not in issue by this brilliant array of authorities, the court quickly assumes that a city can be constructive trustee in no case where it could not be express trustee. "Where a trust is implied contrary to intention, as would be the case here, the implication is a fiction of the law inserted to prevent a failure of justice. But the law will not resort to a fiction that will defeat its own policy by converting into a trustee a municipal corporation from which it has, for the public good, withheld capacity to accept and administer the trust."

Why this reasoning would not apply to an individual trustee, they do not state. It would be superfluous to quote authorities to show that the decision is as bad law as it is bad sense. Several cases are collected in Chapman v. Co. of Douglas, 107 U. S. 348. A good statement of the law is this from Chief Justice Field, in Pimentel v. City of San Francisco, 21 Cal. 362: "The city is not exempted from the common obligation to do justice which binds individuals. Such obligation rests upon all persons, whether natural or artificial. If the city obtain the money another by mistake or without authority of law, it is her duty to refund it, from the general obligation. If she obtains other property which does not belong to her, it is her duty to restore it, or if used, to render an equivalent therefor, from the like obligation. The legal liability springs from the moral duty to make restitution."

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WAGERING CONTRACT: A QUESTION OF DEFINITION. In Carlill v. Carbolic Smoke Ball Co. (1892), 2 Q. B. 484, Hawkins, J., gives us a definition of wagering contract. In view of the prominence or contracts in "futures," and the unsatisfactory grounds of their decisions, some analysis of this definition may be of service. The question was raised on curious facts. The Smoke Ball Co., by public notice, offered £100 to whomsoever contracted the increasing epidemic influenza colds after using their carbolic smoke ball daily for two weeks. The plaintiff did so use the smoke ball, and contracted the cold; and the defendant now contends that it is a wagering contract, as the liability depended on events beyond control of the parties.