portions in comparison with that which besets the New York lawyer when called upon to advise his client whether a given stipulation in a sale contract is a warranty, or may become available as a warranty." 7. Finally, under Caveat Emptor v. Caveat Venditor, he says, "the distinct tendency of modern cases" and of modern legislation. "is to limit its scope, ." for "the same causes which converted the rule of caveat emptor into that of caveat venditor in Roman law have been operating, during the last century, towards the same result in English law, . . ." and "in fact caveat emptor is a rule of primitive law."

The article is very clearly written and is a valuable contribution to the literature touching this delicate point of law. The analysis of cases is excellent.

F. B. S.

THE REQUIRED Number of WITNESSES.-A Brief History of the Numerical System in England.-Prof. John H. Wigmore, Booth, of the Northwestern University Law School.-Harvard Law Rev., June, 1901.

In the civil law of continental Europe which was the great rival of the English common law, proof rested on a numerical system of witnesses. One witness was in general insufficient. In some regions a fixed number of witnesses was required in certain actions, and for some purposes the weight given to each witness was represented in numerical values, even to counting the quarters and halves of a witness. This continued in force down to comparatively recent times. In the English common-law system of jury trials, this numerical idea had no place.

Professor Wigmore then takes up in detail :

I. The Numerical System in General; pointing out 1, that it has been doubted that the Roman law in its prime, i. e., before 300 A.D., proceeded upon this numerical system; 2, that civilization, almost began over again with the invasion and settlement of southern and western Europe by the Gothic hordes in the third and fourth centuries-one of the marked notions being the oath as a formal act, quantitative in its nature; 3, that in the English common-law courts of the sixteenth century there was nothing repugnant to the numerical system already fully accepted in the ecclesiastical law; 4, but after the middle of the seventeenth century there never was any doubt that the common law of England in jury trials rejected entirely the numerical system; 5, for common-law judges, declined to number witnesses as did the ecclesiastical courts, and to

lay down the rule that a single witness was insufficient, because of the different nature of the tribunal; 6, the question did not come up for settlement earlier than the seventeenth century, because, before then there had been no witnesses to whom the ecclesiastical rules could be claimed to apply.

II. The Treason Rule is next discussed, of which he says: "It is clear that the rule requiring two witnesses to prove a charge of treason was not a common-law rule, but had its beginning in the statutes of the sixteenth century." The first statuary provision was that of Edward VI. (1547 and 1552), by which two witnesses were declared necessary. In 1554 the statute of Mary was passed, declaring that all trials for treason hereafter shall be according to . . . the common laws. But before the end of the first half of the seventeenth century came Coke's Third Institute, in which he advanced the view that the statute of Mary had not repealed the statutes of Edward, so that "from the beginning of the eighteenth century there has never been any doubt or vacillation upon the rule that two witnesses at least are required upon a charge of treason."

III. The Perjury Rule: It was after the end of the seventeenth century "that there arose the single exception to the common-law doctrine that one witness alone may suffice in every case, namely, the rule that one, without corroborating circumstances, does not suffice on a charge of perjury . . . and the rule, persisting through the eighteenth century, was fully confirmed in England in the nineteenth century."

F. B. S.

VESTED AND CONTINGENT Remainders.-Stewart Chaplin, Story, '86.-Columbia Law Rev., May, 1901.

This article is a discussion of the interpretation by the New York courts of Sec. 13, 1 R. S. 723 and Sec. 30 of the New York Real Property Law, which section states that a future estate is vested "when there is a person in being, who would have an immediate right to the possession of the property on the determinaton of all the intermediate or precedent estates." This has given rise to a number of confusing questions, and apparently contradictory constructions; some claimed that it was simply the eommon-law definition redressed, and therefore the old rule of interpretation should be applied; others, that along with other portions of the revised statutes it was remedial, and should be liberally construed.

A landmark in this matter is Moore v. Littel, 41 N. Y. 66, a case in which an estate was given to A for life and after his decease

The life tenant conveyed to his

to his heirs and their assigns forever. children, who executed partition deeds to one of their number. The question was whether there was an interest in fee in the heirs which they could then convey. The court was divided. In the prevailing opinion Justice Woodruff held, first that the remainder vested; second, if not vested even then the transfer could be made under a statute making contingent remainders assignable, descendable, and devisable. Many authorities regard the latter as what the case really decided, and the former only dictum. And yet this case is regarded as a stumbling block whenever the question arises. The author cites a number of later cases in which the doctrine of Moore v. Littel is restricted, among them, Hennessy v. Patterson, 85 N. Y. 91, in which after a life estate to daughter M., the will concluded, "Should my said daughter M. die without leaving any issue, then the said property shall be left to my nephew J. F." And J. F. was held to have only a contingent remainder. The court says "while F. was undoubtedly the person who would have an immediate right to the possession of the land upon the ceasing of the precedent estate, yet the certainty of his designation did not do away with the uncertainty of the event upon which alone his estate would vest." Mr. Chaplin claims that none of the later cases go to limits of Moore v. Littel.

A recent case, decided since the article appeared is Daugherty v. Thompson, 167 N. Y. 472 (No. 27 Advance Sheets), in which the court again divides on the question of vesting or contingency.

Mr. Chaplin's article is brief, and remarkably clear for the subject of which it treats. M. I. ST. J.

INDEPENDENT CONTRACTOR.-Judge Claudius B. Grant, Kent, wrote the opinion on this point in the recent interesting Michigan case of Peerless Mfg. Co. v. Bangley.

There was no dispute as to the facts, which briefly are as follow: Bagley, the owner of a building, let the contract to a firm for the placing of a sprinkler plant in the building occupied by the plaintiff. The contract called for the fusing point of the sprinkler heads to be 155° and they were so marked. One of these sprinkler heads was placed in the skylight where the evidence showed the temperature to be 146° on the day when the damage occurred.

It also appeared from other evidence that these plants when properly installed should have the fusing point placed about 30° above the desired fusing point, and in the plant in question this was not done and damage was caused by the negligence.

Demand was made for settlement and, when refused, action was brought in the lower court the plaintiff received the verdict. From this verdict there was an appeal and it is on that appeal that the opinion is given.

The only question for determination, of the court was whether by the employing of an independent contractor to establish the said plant, and by reason of negligent construction on the same, damage resulted to the tenant, the owner of the building would be released from liability to the tenant for the resulting damage.

To this question the court has held squarely, that such a course does not release the landlord from his liability, but says, "that where one owes an absolute duty to another, he cannot acquit himself of liability by delegating that duty to an independent contractor."

There seems to be no question, but that the relation of landlord and tenant comes under the above rule and in the same line with the above decision are opinions from the Supreme Courts of Wisconsin, Massachusets, and Missouri.

J. M. T.

THE LAWYER AND THE STATE.-Prof. Henry Wade Rogers, Booth, formerly President of the Northwestern University and now of the faculty of the Yale Law School, writes on this subject in the June Yale Law Journal. Professor Rogers shows that lawyers, by virtue of their peculiar training and education, are the best fitted for the discharge of public duties, and quotes Rufus Choate as saying of the legal profession that it is "raised from a mere calling by which bread, fame, and social place may be earned, to a function by which the republic may be served." He goes on to show how the Republic has been served by lawyers and the part they played in the history of liberty.

The system of the common law was built up by the lawyers and it is due to them that it was not supplanted by Roman civil law. Coke, a lawyer, carried through Parliament the Petition of Right. The victory gained by Pemberton, Pollexfen, and, John Somers in the acquittal of the seven bishops in 1688 as much marks an epoch in English history as the battle of Waterloo. In our own country, the

lawyers were the leaders of the people in their revolt against the tyranny of Great Britain. They, in the main, framed the constitution. In the government which it created, the influence of the profession has been great.

The judicial department of our government is, of necessity, exclusively filled by lawyers. Of the twenty-four Presidents of the

United States, twenty-one have been lawyers. All but two out of thirty-four Secretaries of State have been admitted to the Bar. In the legislative department of government, the lawyers have been influential and in the majority. The speaker of the House is usually a lawyer.

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The profession has been foremost in bringing about all great law reforms and conserves the highest interests of the state by teaching the people a respect for law and for the powers of government. The profession has always withstood the populace in order to vindicate the majesty of the law. Nothing has occurred since the days of Cicero that reflects more honor upon the profession than the heroic conduct of Maitre Labori at Rennes, who without hope of remuneration, and knowing that his life was in danger and that the public sentiment of France condemned him, walked into the arena of justice and vindicated the rights of Captain Dreyfus against the government and the military tribunal of his country."

V. M.

THE WAR-REVENUE ACT OF JUNE 13, 1898, as Amended BY ACT OF MARCH 2, 1901.-In effect on and after July 1, 1901.

On the first of July the amendment (Act of March 2, 1901) to the War-Revenue Act of June 13, 1898, went into effect. In many respects the original act has been modified or repealed so that it is necessary to look up the question of stamps and special taxes anew.

In order that the readers of the BRIEF may have the most important items of the present law before them in convenient form, the following alphabetical list has been prepared. Where the tax has been entirely removed, the subject has been omitted from the list, but the modified or unchanged items are given as fully as possible.

Agreement to Sell, 2 cents on each $100 or fraction thereof. Agreement of Sale, I cent on each $100 and on each additional $100, 1 cent.

Agreement to Sell any product or merchandise at any exchange, board of trade, etc., I one cent on each $100 and on each additional $100, I cent. Bankers, capital not exceeding $25,000, $50 annual tax; and every thousand exceeding $25,000, $2.00 per thousand. Beer, lager beer, ale, porter, $1.60 per barrel. Billiards and Pool, $5 for each table. Bills of Exchange (inland) not exceeding $100 2 cents, and on each additional $100 or fractional part thereof, 2 cents; (foreign) not exceeding $100, 2 cents, and on each additional. $100 or fractional part thereof, 2 cents. If any such bills are drawn in sets of two or more, each bill not exceeding $100, I cent; and in excess of $100, I cent on each additional $100 or fractional part thereof.