the facts were essentially the same as in the present case, i. e., an assault by an unknown individual upon the employee in the course of his employment, yet the duties of the watchman are such as expose the employee to the peculiar hazard of attack by third persons. Thus, in order for a case to arise out of the employment of an employee, the injury received must be traceable to a risk peculiar to the employment. In the Ohio Building Vault Co. case, supra, the court says the real question in that case was, "Was Christiansen assaulted because he was Christiansen, or was it because he was the night watchman of the building?" And in this case the same form of question was before the court for determination. Since the work of Connelly did not expose him to any risk of assault not common to other persons not so employed, it would seem both in reason and authority that the conclusion of the court is both sound and in harmony with the trend of the decisions upon this subject. If the deceased had been a bank messenger and thus been known to handle large sums of money, as contradistinguished from the inconsequential proceeds of the day's sales which he had made, it might be expected that the court would sustain an award based upon practically the same evidence, because bank messengers, like watchmen, are exposed to greater hazards of attack than ordinary individuals.

P. E. PRICE.

DIVERSITIES DE LA LEY

WHEN NOT No Is NOT YES.-"What burden and risk of 'election' should a promisor's anticipatory repudiation of his fair and binding promise cast upon the promisee? The promisor's proposal to cancel the promisee's obligations would, if accepted, be a good consideration for the promisee's release of the promisor's obligations. But it takes two to make the new bargain of mutual release. And if the promisor's proposal of cancellation is made when no benefit could possibly accrue to any one except himself, when by reason of his power in the business world to award future prizes or inflict future pains he expects or hopes to force the promisee to stand the loss, the only 'election' which the law should permit to be cast upon the promisee is to say yes or no to the promisor's proposal of mutual releases. If the promisee says yes, the matter is at an end. If he says no (meaning thereby that he declines to submit to the arbitrary and unjust demand, and the promisee's failure to say yes is one means of saying no) he should not be held to be digging pitfalls for himself and building isles of safety for the repudiator. And he is so betrayed, if the law makes more of his no than this:

""I refuse to accept your proposal of mutual releases. I am able and willing to go ahead with our arrangements as originally agreed upon, except that it may be necessary to count out the loss of time occasioned by your recalcitrance. This is the only "election" or notice of my intention to which you are entitled. It is no concern of yours whether I sue you today on "anticipatory breach" or on any other day' down to the due date. If I do not sue you on "anticipatory breach," you may take my action in that regard as a continuing invitation to you to repent. Indeed, I may from time to time down to the due date repeatedly urge you to repentance, but only in the interest of your morality, not to increase your immorality by permitting you to claim immunity through my courtesy and fair dealing. I am giving you the opportunity to repent, and in that sense I am "keeping the contract alive for your benefit," but in no other sense. If despite your recalcitrance I do things looking toward performance, that is only to show my willingness and ability. for I realize that the law will not permit me to increase the damages by doing unnecessary things. And, finally, if by the due date you have not repented, I shall then and thereafter count on what had stood as your continuous anticipatory repudiation as having ripened into a completed breach.'

"We say that, in our judgment, the law should so pronounce, because the law should not be regarded as crystallized strata of a dead past, but as a living force that pulses in response to preponderant convictions of morality. Commercial law should reflect commercial morality. Over the portals of commerce no longer swings the ancient warning. Associations of commerce, leagues of

advertisers, and of advertising publishers, courts of equity developing rules of fair trade, and the people through their representatives in Congress setting up a commission to promote and emphasize commercial morality in a broader sweep than is possible for courts, all these help to make plain the preponderant conviction of today. Repudiators of fair and solemn and binding promises are commercial sinners. If they are unrepentant, courts should hold them to the full consequences of their sins. While promisees should be encouraged to hold open the door to repentance, courts should be vigilant to see that repudiating promisors do not use that very door as an exit to immunity."-[Mr. Circuit Judge Baker in Lagerloef Trading Co. v. American Paper Products Co. 291 Fed. 947 (955-6)].

THE SLAVE IN ENGLAND.-It was no idle boast of William Cowper's

"Slaves cannot live in England; if their lungs
Receive our air, that moment they are free"

but that was in 1783, more than a decade after Lord Mansfield had said in the case of the Negro, James Somerset: "The air of England has long been too pure for a slave and every man is free who breathes it." Little more than two centuries before another, Somerset had totally falsified the saying.

On January 21, 1547, the Crown of England devolved upon a nine-year-old boy, Edward, the son of Bluff King Hal, Henry VIII, and Jane Seymour. Well educated and of good parts as he was, he was quite too young to take an active part in the government and legislation of the land of which he was King in name-that was in the hands of his uncle Edward Seymour, Earl of Hertford, who became Duke of Somerset before Parliament met, November 4, 1547.

By that Parliament wholly under the control of Somerset, was passed one of the most curious of Statutes, "An Act for the punishing of Vagabonds and for the reliefe of the poore and impotent persons."1

The Statute recites that idleness and vagabondery is the mother and root of all thefts, robberies, and all evil acts and other mischiefs and that the number of people given thereto in the Kingdom has always been large; that all the King's noble progenitors and the High Court of Parliament had often and with great travail gone about and essayed with godly Acts to repress; yet until this time it had not had the wished for success partly by foolish pity and mercy of those who should have seen the said godly Laws executed and partly by the perverse nature and long accustomed idleness of the persons given to loitering: and "idle and vagabond being unprofitable members or rather enemies of the Commonwealth have been suffered to remain and increase and yet so do, whom if they should be punished by death, whipping, imprisonment and with other cor

1. Statutes at Large, London, 1786, Vol. X, Appendix, p. 139, the statute is (1547) 1 Edw. VI, c. 3. I shall modernize the spelling.

406

poral pain it were not without their deserts, for the example of others and to the benefit of the Commonwealth-yet if they could be brought to be made profitable and do service, it were much to be wished and desired.'

The statute then repeals all previous statutes and acts of Parliament for the punishment of vagabonds and sturdy beggars. Then follow the slavery clauses. It is enacted in effect that every one, man or woman, not too lame, impotent, or old to work, and not having lands, etc., sufficient to support him, who shall wander round without work for three days or more without offering themselves to labor with anyone who will take them "according to their faculty," shall be on proof before two Justices of the Peace ordered to be marked with a hot iron in the breast with V, and delivered to the prosecutor "to be his slave to have and to hold the said slave unto him, his executors or assigns for new master is to be ordered "to take the person adjudged to be a two years." And the slave with him and, only giving the said slave bread and water or small drink and such refuse of meat as he shall think meet, cause the said slave to work by beating, chaining or otherwise in such work and labour (how vile soever it be) as he shall put him to." If the slave ran away or stayed away from his master for fourteen days, the master might retake him and punish the fault by chains or beating, and two Justices were to cause him to be marked on the forehead or the ball of the cheek with an hot iron with the sign of an S and adjudge him to be a slave forever. If he ran away or absented himself a second time he might before the Justices of the Peace in General Sessions be convicted as a felon and "condemned to suffer pains of death as other felons ought to do."

Not only were vagabonds and sturdy beggars legislated against, but also clerks in Holy Orders-such clerks being convicted of crime were no longer to be allowed to make their purgation and immediately set free. A clerk when convicted was to find a man (the Act wisely says "if he can") who will be bound with two sufficient sureties to pay to the King £20 to retain the convict as a slave and not to let him go abroad or at large for a year and the convict was to be delivered to the person so becoming bound as his slave for a year-with the same penalties (except burning in the breast) as in the case of the vagabond. If the convicted clerk could not find any person to become so bound, he had to stay in prison for a year and then make his purgation and be set free.

If a clerk could not make his purgation, instead of his remaining in prison during his life, any one might become bound to the King as in the case above mentioned and take him as a slave for five years. The masters of such slaves might "let, set foorth, sell, bequeath, or give" the service of their slaves like any other moveable goods or chattels.

A slave wounding his master or during or after the term of slavery conspiring to kill, wound or beat him or burn his house, barn, etc. (if the conspiracy come to an overt act as lying in wait,

etc.), shall be condemned to death unless the master will take him as a slave forever.

There are many other provisions in this extraordinary statute, but the above will suffice if one more be added. Section XVI provides that if any aged, maimed, or impotent parishioners be not so lame and impotent "but they may work in some manner of work," then "if they refuse of wilfulness or stubborness to work or run away and beg in other places," they might be punished "with chaining, beating, or otherwise." Moreover, "be it enacted .. that every Sunday and Holiday after the reading of the Gospel the Curate of every Parish do make (according to such talent as God hath given him) a godly and brief exhortation to his Parishioners, moving and exciting them to remember the poor people and the duty of Christian charity in relieving of them which be their brethren in Christ, born in the same Parish and needing their help."

This drastic Act failed of its object and, 1549-1550, by the Act 3, 4 Edw. VI, C. 16, it was "utterly repealed, made frustrate, void and none effect" and the former Act of 22 Henry VIII renewed. WILLIAM RENWICK RIDDELL.

Osgoode Hall, Toronto, Canada.

CHINESE SUPREME COURT CASES.-It is apparent from the following instances that the Supreme Court of China is not greatly burdened by a large body of precedent. They may point a moral in their brevity.

In reply to High Court of Justice, Shangtung, Supreme Court, No. 1140, November 25, 1919.

Syllabus: A marriage ceremoney performed by the mother, in absence of the father, for their daughter is valid.

Facts: The father, A, was engaged in business away from home, but kept in touch with his home by correspondence. Upon the maturity of the daughter, C, the wife, B, after consulting with D, her brother's cousin, married C to E without any notice to A. Two months later A returned home and refused to acknowledge the marriage.

Decision: C is lawfully married to E.

Reasons: According to the 'Laws in force,' if a boy goes out and gets married, the marriage is valid, despite the fact that his father afterwards, without knowledge of the marriage, engages a girl for him at home. In the same manner the law could be applied in this case. Moreover, the young couple are living harmoniously together, and it would be against social justice to order them separated.

In reply to the High Court of Justice, Fengtien, Supreme Court, No. 1737, June 17, 1922.

Syllabus: 1. The wife is liable for her husband's debts, when he dies without heirs, though leaving no property to her. 2. The more so, if she claims any rights in the capacity of her husband's executor against her husband's debtors.