WITNESSES PRIVILEGED COMMUNICATIONS

PATIENT'S COMMUNICATIONS

TO DENTIST. —A statute forbade "a person duly authorized to practise physic or surgery" to disclose any information acquired while attending a patient in a professional capacity, necessary to enable him to act in that capacity. The plaintiff, a dentist, was allowed to testify concerning dental work done for the defendant's testator. Held, that there is no error. Howe v. Regensburg, 132 N. Y. Supp. 837 (Sup. Ct.).

A confidential relationship exists between a physician and patient which statutes like that in the principal case are intended to preserve, so that the patient, to get relief, may tell everything about his condition without fear that such communications will ever be used against him. See Edington v. Mutual Life Ins. Co., 67 N. Y. 185, 194. Technically, dentistry is a branch of physic or surgery. In the Matter of Hunter, 60 N. C. 447. See State v. Beck, 21 R. I. 288, 293, 43 Atl. 366, 367. But it is difficult to imagine that a dentist's patient would be compelled to make damaging admissions in order to receive proper treatment. Thus, since the reason for the statute does not apply and since in common parlance dentistry is regarded as a separate profession, the decision of the principal case seems proper. See SUTHERLAND, STATUTORY CONSTRUCTION, 2 ed., §§ 367, 395.

BOOK REVIEWS.

WATER RIGHTS IN THE WESTERN STATES. By Samuel C. Wiel. Third Edition. In two volumes. San Francisco: Bancroft-Whitney Company. pp. xlvi, 967; 969-2067.

1911.

On account of the important changes which have been going on in the law of water rights in the western states in the past few years, this work, largely rewritten in view of such changes, which for the first time gives an adequate account of them, and discusses the principles involved, must supersede all our books upon the subject. Happily the work has been done so well that Mr. Wiel's treatise is likely to remain for a long time, as it were, an authoritative text. It has the merit, not common in current texts, of indicating the lines upon which progress is proceeding and should proceed, instead of merely digesting the recent cases and appending them to the views of prior writers. The author has thought critically and independently upon the important problems of the subject, especially upon the new problems arising under recent decisions, and thus has produced a book which deserves to be, and undoubtedly will be, of no little influence upon the case law of the subject.

One may commend especially the discussion of the tendency to depart from a possessory system of acquiring water rights and work out a use system. Undoubtedly the courts are hesitating between the two since many of them are bound by past decisions, if not wholly to the possessory system, at least to more than one consequence thereof. Mr. Wiel points out very clearly the relation of these two systems to the history of the subject, and his demonstration that the one view is historical and the other analytical should have much to do with enabling the courts to depart intelligently from rules which have a purely historical basis. It is to be hoped also that those who draft legislation with respect to water rights in the future will read Mr. Wiel's discussions carefully so that legislation will not waver between the two theories.

Another commendable discussion has to do with the recent tendency to recognize something very like riparian rights through perceiving that the owner

along the stream has a natural advantage which enables him to use the water to more purpose than owners remote from the stream. The decisions and legislation with respect to "sub-irrigation" and appropriation by improvement of natural surroundings which depend upon the flow of the water show that the common law was by no means wholly inapplicable even to our arid regions and that the judicial experience involved in the doctrine of riparian rights could not after all be entirely rejected.

A writer upon the law of irrigation at present is in truth compelled to write from two standpoints. On the one hand he must develop the law of appropriation founded upon a possessory system as it has existed in the past; on the other hand, he must develop the subject from the standpoint of the use system, which partially through legislation, but even more through judicial decision, is steadily gaining ground. If this were done in the conventional way, by writing wholly from the standpoint of the old law, and appending the recent decisions in the notes as stating conflicting rules or as indicating mere isolated departures in particular instances, the work would be worth no more than a digest. It is matter for congratulation that the author has seen clearly that two competing theories are in conflict here, has developed the one thoroughly out of the older cases and the recent cases which apply them, and has fitted the newer cases proceeding upon the newer theory into their place in a proper development of that theory and indicated the results to which that theory is likely to lead. Text-books developing the law in this manner are a significant and encouraging sign in American legal thought.

It might be suggested that the division of western states where the law of irrigation is in force into two classes, namely, those which apply the California doctrine of riparian rights on the private domain and of appropriation on the public domain, and those which adhere to the Colorado doctrine of appropriation throughout the entire jurisdiction, is not wholly adequate. Are there not in reality three classes of jurisdictions? In one class the appropriation system is in force on the public domain, while the common law is in force on private lands, but appropriations made on the public domain are valid against subsequently acquired riparian rights. In a second class the common law was originally in force over the whole jurisdiction, but statutes have subsequently introduced the appropriation system potentially for all or a part of the state. In a third group the appropriation system obtains exclusively over the entire domain, and has usually so obtained from the beginning. A distinction between the first and second classes seems to be necessary in that in the second group rights were acquired under the common-law doctrines which were in force for many years before the appropriation system was introduced or given sanction by legislation. In these jurisdictions a number of serious constitutional questions have arisen, and appropriations which may be made throughout the state must be subject to previously acquired riparian rights except as the latter are divested by some sort of condemnation. If a distinction is made between these jurisdictions, as, for example, the Dakotas, Kansas, and Nebraska on the one hand, and California, Montana, and Washington on the other hand, where practically from the beginning both riparian rights and appropriation have been coexistent, a number of apparent difficulties disappear.

It is a small matter, but a tantalizing method of cross reference by citing the reader to sections where the proposition in question is fortified by a further cross reference is employed too frequently.

R. P.

HANDBOOK ON THE LAW OF PARTNERSHIP. By Eugene Allen Gilmore. St. Paul: West Publishing Company. 1911. pp. xiii, 721.

This book is one of the best of the Hornbook Series. It was at first intended as a second edition of George on Partnership, but so much of the material is new and so much of the earlier treatise is abandoned that the new title is amply justified. The chapters on Actions between Partners and Actions between Partners and Third Persons are substantially taken from the earlier work, but both the arrangement and text of the other chapters are almost entirely

new.

Professor Gilmore has not attempted to contribute to the philosophy of the law of partnership but he has analyzed and stated clearly and, for the most part accurately, the present state of the law on this subject as it is administered to-day in this country. Occasionally his statements are rather too general and therefore inaccurate. Thus, in referring to the general doctrine of equitable conversion, he states on page 154 that if the owner "has indicated his intention to alter his real property into personal property or his personal property into real property, equity will treat the property as though the intention had been carried out." Certainly, the mere intention of the owner, even his expressed intention, is insufficient to work a conversion. Indeed, Professor Gilmore shows in his application of the doctrine to partnership property that the conversion is the result of the nature of the rights of the partners in the partnership property and is not merely dependent upon intention.

The book is very fully annotated and about five thousand cases are cited. The author has very ably fulfilled his purpose of making a clear and definite statement of the leading principles of the law of partnership so far as the scope of the work permits.

A. W. S.

A HISTORY OF THE AMERICAN BAR. By Charles Warren. Boston: Little, Brown and Company. 1911. pp. xii, 586.

No single volume could fairly be expected to square with the title of this book. There is a careful, fairly balanced, detailed account of the bars of the different colonies. Each is distinct, yet the reader can readily follow the tendency toward unity, toward a real American Bar. No easy task is this for an author, for the several necessary geographical subdivisions mar continuity of narrative. The influence of the English Bar of the time is properly emphasized. It bore intimate relation to the violent and distorted popular reactions against the English common law, its lawyers, and its judges. Incidentally the details of the rise and fall of such attacks may carry balm to those who look with too serious alarm upon recent symptoms of this recurring distemper.

The second half of the book does not attempt to cover the field in order, but sends out independent but effective scouting parties to examine the most significant features of our legal history from 1789 to 1860. This part is specifically labelled "Federal Bar"; but is more comprehensive than the title indicates. Besides the federal bar, the bars of the states are described, notably those of New York and of Massachusetts. In a general discussion of what the author calls the progress of the law, 1830-1860, in the list "of the Chief Justices who have left a marked impress upon the course of legal development" (p. 447), seven Chief Justices of states are named. The name of Thomas Ruffin is, however, not among them.

The origin and infancy of railroad law, corporation law, insurance law, personal injuries law, are sketched with care and skill. Of the evolution of legal education, of the exotic called codification, of the writing of modern law books,

and of the deep-going changes in the mental habits of the legal profession produced thereby, the author's vein is at its richest.

Lord Campbell, writing of a compact, highly organized class in a territory forming only a tiny fractional part of this author's field, with many volumes at his disposal, has fixed the average reader in the belief that his legal history is to be learned most readily through biography. "Great American Lawyers," in spite of the diversities of style and matter within its volumes, has not dispelled the idea. But in a single volume one will not ask for more than we have here.

S. M.

HARVARD

LAW REVIEW.

VOL. XXV.

JUNE, 1912.

No. 8.

LIMITATIONS OF THE STATUTORY POWER OF MAJORITY STOCKHOLDERS TO DISSOLVE A CORPORATION.

AMONG the "incidents which, as soon as a corporation is duly

erected, are tacitly annexed of course," Blackstone names first that "to have perpetual succession." This theoretical right of perpetual succession must in its origin have been subject to certain implied limitations, although it was seriously contended in the celebrated case of King v. Mayor, etc. of London2 that immortality was an attribute of corporate life.

The cases and the manner in which a corporation may be dissolved are said by Blackstone to be the following:

"(1) by act of Parliament, which is boundless in its operations; (2) by natural death of all the members, in case of an aggregate corporation; (3) by the surrender of its franchises into the hands of the King, which is a kind of suicide." 3

Kyd not only recognizes the implied power of voluntary dissolution, but proceeds to tell precisely how it may be brought about:

"In the nature of the thing there does not seem to be much metaphysical difficulty. That a corporation may, in point of fact, destroy itself by its own act seems as easy to be comprehended as that a natural

1

1 Bl. Comm. 475.

1 Bl. Comm. 485.

2 2 Show. 263 (1683).