children of several persons. See 2 JARMAN, WILLS, 6 ed., 1711. This is true where the gift is to the children of X. and Y. in equal shares. Armitage v. Williams, 27 Beav. 346; Budd v. Haines, 52 N. J. Eq. 488, 29 Atl. 170. So also where it is to the children of X. and the children of Y. Lady Lincoln v. Pelham, 10 Ves. Jr. 166; Britton v. Miller, 63 N. C. 268. A gift to X. and Y. and their children is treated in the same way. Cunningham v. Murray, I De G. & Sm. 366. And so is a gift to a class and their children. See Almand v. Whitaker, 113 Ga. 889, 890, 39 S. E. 395. "Bodily heirs" as used in the principal case must mean children. Where words importing equal division are used, as in the principal case, a presumption is raised in favor of giving per capita. In re Stone, [1895] 2 Ch. 196, 201; Kling v. Schnellbecker, 107 Ia. 636, 638, 78 N. W. 673. This presumption, however, yields to very slight evidence of a different intention in the context of the will. See Scott's Estate, 163 Pa. St. 165, 169; 2 JARMAN, WILLS, 6 ed., 1712. Had the gift in the principal case been substitutional, i. e., to several persons or their children, a different result would have been reached. Congreve v. Palmer, 16 Beav. 435. See Kling v. Schnellbecker, 107 Ia. 636, 639, 78 N. W. 673, 674.

USE IN EVI

WITNESSES PRIVILEGE AGAINST SELF-INCRIMINATION DENCE OF BANKRUPT'S BOOKS IN POSSESSION OF TRUSTEE. -The defendant's books were taken over by a receiver and afterwards by a trustee in bankruptcy. They were used against him without his knowledge in subsequent proceedings before the grand jury. Held, that the defendant's constitutional right not to be compelled to be a witness against himself was not violated. United States v. Halstead, 40 Wash. L. Rep. 23 (D. C., Ct. App., Jan. 2, 1912). The constitutional sanction of the common-law privilege against self-incrimination forbids compelling a person to act affirmatively in furnishing evidence against himself. See 4 WIGMORE, EVIDENCE, §§ 2252, 2263, 2264. The production of documents under a subpoena or other process treating him as a witness may be refused. Boyle v. Smithman, 146 Pa. St. 255, 23 Atl. 397; Lamson v. Boyden, 160 Ill. 613, 43 N. E. 781. But articles obtained by search, whether legal or not, may be admitted in evidence without violating the privilege. Gindrat v. People, 138 Ill. 103, 27 N. E. 1085; Adams v. New York, 192 U. S. 585, 24 Sup. Ct. 372. But see Boyd v. United States, 116 U. S. 616, 633-635, 6 Sup. Ct. 524, 532-534. A bankrupt must deliver his account-books to a receiver, although they contain incriminating information. Matter of Harris, 221 U. S. 274, 31 Sup. Ct. 557. Contra, In re Kanter, 117 Fed. 356. And they may afterwards be used as evidence against him. Kerrch v. United States, 171 Fed. 366. But cf. Blum v. State, 94 Md. 375, 51 Atl. 26. Where, as in the principal case, the books have been delivered to a trustee, there is an additional reason for reaching the same result. The trustee is vested by operation of law with title to the bankrupt's property. BANKRUPTCY ACT OF 1898, § 70 a (1). See In re Hess, 134 Fed. 109, 111. Therefore, its use before the grand jury cannot be a violation of his constitutional rights. Thus, through the trustee as intermediary, a person may have to divulge information which cannot be got directly. But "that is one of the misfortunes of bankruptcy if it follows crime." See Matter of Harris, 221 U. S. 274, 279, 31 Sup. Ct. 557, 558.

BOOK REVIEWS.

CORRECTION. Attention is called to an error in the review of Chamberlayne on Evidence in the March issue. 25 HARV. L. REV. 483, 485. In the last line of page 485 "table of contents" should read "table of cases."

THE COLLECTED Papers of FREDERIC WILLIAM MAITLAND. Edited by H. A. L. Fisher. In three volumes. Cambridge: The University Press; New York: G. P. Putnam's Sons. 1911. pp. ix, 497; 496; vi, 528.

The fifteen hundred or more pages of these three volumes contain sixty-eight papers of various kinds written between 1875 and 1906. They vary in length and subject matter from a book review of three or four pages, a brief note on some historical point from the English Historical Review or an appreciation of Lord Acton, to a college dissertation on Liberty and Equality of over one hundred and fifty pages, a bibliography of English legal history originally contributed to the Political Science Quarterly, a sketch of English legal history of over seventy-five pages which first appeared in Traill's Social England, a long essay "designed to explain to Germans the nature of a trust" published in Grünhut's Zeitschrift, or the careful papers on the History of the Register of Original Writs from this Review.

It is safe to assume that every lawyer who is even slightly acquainted with the historical foundations of our legal system already knows something of the contents of these three volumes. The larger that acquaintance, it is also safe to say, the greater will be his welcome of this opportunity, now first given, of having in convenient and inexpensive form these papers which have hitherto been accessible only to the favored few who possessed complete files of the Law Quarterly Review and the English Historical Review, and not all accessible even to these.

Much of Maitland's best work appeared in these papers and apparently none of importance which could be reasonably expected in a collection of this kind has been omitted from this one, unless it be the chapter on the Anglican Settlement and the Scottish Reformation in volume two of The Cambridge Modern History. The omission of Maitland's introductions to his volumes of the publications of The Selden Society and his remarkable introduction to the Parliament Roll of 1305 in the Rolls Series, the editor satisfactorily accounts for on the ground that they "could not without injury be wrenched from the texts which they are intended to introduce." In the case of the former of these there is the additional good reason that every one who is sufficiently interested in the subject to read them ought if possible to obtain them by enrolling himself as a member of the society itself, and thus help to further a project dear to Maitland's heart and likely to be in the coming years his principal memorial. With the exception of these we have in these volumes practically "the whole mass of Maitland's scattered writing."

Of these sixty-eight papers the editor has starred twenty-two as "of a less technical character" than the rest. The other forty-six have practically all to do with the law or its history, and this is also true of some of the twenty-two more popular ones. Among subjects such as The Origin of Uses, The Corporation Sole, The Origin of the Borough, The Seisin of Chattels, and The Law of Real Property, the breadth of Maitland's knowledge and interests is indicated

by a learned review of Liebermann's Gesetze der Angelsachsen and a paper on the making of the German Civil Code.

The problem of corporate personality in its history, nature and practical effects in our legal system was the centre of Maitland's investigation and interest in the last few years of his life. Under the influence of Gierke he became profoundly convinced of the truth of the theory of a real though incorporeal existence of the corporate person and of the corporate will, in opposition to the view that the corporation is merely a figment of the imagination, a creation out of nothing made by the State for purposes of convenience. Though this controversy has gone on for years on the Continent and now fills a library of books, these six papers, together with Maitland's brilliant introduction to his translation of Gierke's "Political Theories of the Middle Age" have virtually introduced the subject to English and American lawyers at large, and are likely to remain the classical exposition of it in English. To appreciate Maitland's influence in this respect one has only to compare the number of articles on this subject which have appeared in leading legal periodicals in England and America before and since he began to publish these papers. The timeliness of this subject and its intimate connection with some of the most pressing problems before our courts and our people, serve to illustrate the intensely practical character of all Maitland's aims and interests. However far back these papers may take us in the historical development of our legal doctrines, we always feel in reading them that in tracing the beginnings of that development our author has constantly in mind a better understanding of its end. Maitland has none of that foolish impatience with the study of our past development which renders superficial and worthless so much that is written to-day, but he never falls into the opposite error of mere legal antiquarianism.

It is unnecessary at this late day to try to give a critical estimate of these writings. That matter was settled long ago. Considering the fact that the series was begun thirty-five years ago, there is surprisingly little which must be revised in the light of later research. "He wrote little, perhaps nothing, in early manhood which he would have cancelled in later years." There will no doubt be a difference of opinion as to the correctness of a few of the conclusions. All may not be able, for example, to accept entirely the author's views on the origin of the borough; and many will be unable to see in the corporation as Maitland did, "no fiction, no symbol, no piece of State's machinery, no collective name for individuals, but a living organism and a real person, with body and members and a will of its own." Most of the papers, however, are on subjects not controversial; but even where they are, and in the rare cases where we cannot accept all their conclusions, our admiration for their value and suggestiveness is not one whit diminished. They are, as Mr. Fisher says of their author, "always learned, always original, and in ninety-nine cases out of a hundred . . transparently right."

The papers are given in their original form without annotation.

C. H. M.

THE LAW OF CONTRACTS. By Clarence D. Ashley. Boston: Little, Brown and Company. 1911. pp. xxviii, 310.

This little treatise on the Law of Contracts is an interesting book and an interesting kind of book. It is a thought which cannot fail to occur to every lawyer and especially to such lawyers as are compelled constantly to search for authoritative statements of the law, that before many years the mass of material will be so great as to paralyze the efforts of the most industrious. The American Digest and the Key Number System are useful, but when pertinent decisions

on a single point are numbered by hundreds, what can be done? The only answer to such an inquiry can be that lawyers must endeavor to seek the principles at the foundation of their science and rely chiefly on accurate reasoning from these principles rather than simply on an endeavor to find cases similar in facts to the one under consideration. But such a search for fundamental principles cannot mean an endeavor to memorize sundry brief formulæ, but rather an effort, through testing every proposition by applying it to a variety of facts, to discover how many of the general statements in law books are gold and how many are mere dross.

Dean Ashley, who has been himself an active practitioner and is now at the head of a large law school in the City of New York, where, if anywhere, it may be supposed the demand for the immediately practical is insistent, finds time to write a book (doubtless in large measure the reflection of his teaching) which makes slight pretense to any elaborate collection or consideration of American decisions, but is occupied almost wholly with a statement and discussion of the theoretical principles which must govern all decisions involving the law of contracts. It is this method which the author invariably pursues of seeking the sound and reasonable principle rather than merely stating what courts have decided that is the most interesting feature of the book.

In general the writer's conclusions and reasoning will commend themselves to the reader, and even in cases where an individual student of the subject may differ from Dean Ashley's conclusions, he will always recognize the force of his arguments. The book is written, moreover, in an attractive style and is singularly readable.

The author, both in his preface and elsewhere, makes the fullest acknowledgment to the work of Professor Langdell and other writers on the law of contracts. His acknowledgments are indeed so generous that a hasty reader might fail to give the author himself sufficient credit for the power of analysis and of statement which he shows.

S. W.

THE LIABILITY OF RAILROADS TO INTERSTATE EMPLOYEES. By Phillip J. Doherty. Boston: Little, Brown and Company. 1911. pp. 371.

The last decade has witnessed in this country a marked tendency on the part of law makers to impose upon masters and hence, indirectly, upon society as a whole, a share of the burdens of industrial accidents hitherto, under common-law fictions, borne alone by workmen. It is for an interpretation of a remedial statute of this nature from what the author pleases to term the "humane," in contradistinction to the "property," point of view that this volume pleads. The particular statute under consideration is the Federal Employers' Liability Act of 1908. The work is in no wise a text-book." Rather is it an aggressive and exhaustive "brief" urging (1) a broad and liberal interpretation of this Act, and (2) its constitutionality, being, in large measure, a reply to arguments advanced in a report of a committee appointed by a conference of railroad counsel at Atlantic City, N. J., in July, 1908, to consider questions arising under the Employers' Liability Acts. The contentions of the author as to the constitutionality of the Act of 1908 have recently been confirmed by the Supreme Court of the United States. Second Employers' Liability Cases, 223 U. S. 1, 32 Sup. Ct. 169. With the author's vigorous attack on the established but discredited common-law doctrines of fellow service and assumption of risk in his excellent second chapter, most readers will incline to agree, but the constant reiteration of hostility to these doctrines tends to become wearisome. Interesting originality is shown in the chapters considering "When

is a railroad engaged in interstate commerce?" and "What employees are engaged in interstate commerce?," and in the chapter supporting the proposition that "Congress may regulate the regulations between master and servant engaged in interstate commerce." The work as a whole, however, suffers from an excess of lengthy quotations and from a redundancy which suggests "padding."

R. T. S.

THE LAW OF EVIDENCE. By Sidney L. Phipson. Fifth Edition. London: Stevens and Haynes. 1911. pp. lxxix, 743.

In an earlier number (21 HARV. L. REV. 157) the fact was mentioned that Phipson on Evidence passed into its fourth lustrum of life coincidently with its fourth edition. The distinction of bringing out a fifth edition by his own hand has come to the author after a still shorter interval, and the success which has made this possible is well deserved. Our notice of the fourth edition renders unnecessary any detailed reference to the many merits of the book, among which are its neat and compact style, the skilful variation of type and spacing as aids to the eye, the illustrative examples following each chapter, and the author's careful study of the literature of his subject, English and American, including (p. 49) editorial comment in this Review. Over five hundred new cases have been added to the present edition, together with references to recent statutes affecting the English law, and the text has evidently been revised with care.

E. R. T.

THE LAW OF CONTRACTS. By Clarence D. Ashley. Boston: Little, Brown and Company. 1911. pp. xxviii, 310.

THE LAW AND CUSTOM OF THE CONSTITUTION. By Sir William R. Anson, Bart. Vol. I, Parliament. Reissue revised. Fourth Edition. Oxford: The Clarendon Press; London, New York, Toronto: Henry Frowde. 1911. pp. xxvi, 404.

THE UNDERLYING PRINCIPLES OF MODERN LEGISLATION. By W. Jethro Brown. London: John Murray. 1912. pp. xx, 331.

THE LAW RELATING TO CONFLICTING USES OF ELECTRICITY AND ELECTROLYSIS. By George F. Deiser. Philadelphia: T. & J. W. Johnson Company. 1911. pp. xv, 138.

CLAIMS. FIXING THEIR VALUES. By George F. Deiser and Frederick W. Johnson. New York: McGraw-Hill Book Company. 1911. pp. ix, 158.

THE LAW OF PERSONAL INJURIES. Based on the Statutes and Decisions of the Supreme Court and of the Court of Appeals of Georgia. By John L. Hopkins. Second Edition. In two volumes. Atlanta: The Harrison Company. 1912. pp. xvi, 772; xv, 773-1542.

A DIGEST OF ENGLISH CIVIL LAW. By Edward Jenks. Book III: Law of Property. London: Butterworth & Company; Boston: The Boston Book Company. 1911. pp. xlii, 547-668, 9.