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USURY — NATURE AND VALIDITY OF USURIOUS CONTRACTS — GUARANTEE TO LENDER OF RISE IN VALUE OF STOCKS SOLD TO MAKE LOAN. In return for a loan by the plaintiff the defendant agreed to repay the amount advanced with interest, the cost to the plaintiff of selling stock to procure the money loaned, and the rise in value of and dividends on the stock during the period of the loan. Held, that this does not constitute usury. De Moltke-Huitfeldt v. Garner, 145 N. Y. App. Div. 766, 130 N. Y. Supp. 558.

A lender may be compensated for his services or expenses in raising the money for the loan in addition to interest. Thurston v. Cornell, 38 N. Y. 281; Kihlholz v. Wolf, 103 Ill. 362. A contract guaranteeing to the lender the rise in value of stock sold to make the loan, without hazarding the sum advanced and interest, has been held usurious. White v. Wright, 3 B. & C. 273. A contrary result reached by the Massachusetts court was based on the ground that the contract contemplated two acts, the loan and the preliminary act of selling the stock, and that this preliminary act was consideration for the payment of the rise in value of the stock. Snow v. Nye, 106 Mass. 413. But in practically all cases the lender either disposes of property or foregoes an investment to make the loan. By a fair construction of the usury statute such a detriment is incident to and included in the transaction termed a loan. So it has been held that a lender cannot charge for the sacrifice he has made in selling securities to make the loan. Van Tassell v. Wood, 12 Hun (N. Y.) 388. The result reached by the principal case would seem to violate the spirit and lessen the effectiveness of the statute.


A TREATISE ON THE MODERN LAW OF EVIDENCE. By Charles Frederick Chamberlayne. Volumes 1 and 2. Albany: Matthew Bender & Company; London: Sweet & Maxwell. 1911. pp. cxxii, xxviii, 2328.

These two volumes are the first instalment of a larger work. The first volume, entitled “Administration,"contains introductory matter, and deals with Law and Fact, the function of the Court and Jury, general principles governing Judicial Administration, and Judicial Notice. The latter subject is divided into “Judicial Knowledge” and “Common Knowledge," and a chapter on “Special Knowledge” follows. The second volume, which is entitled “Procedure,” includes the Burden of Proof, Presumptions, Admissions, Confessions, and Former Evidence. The terms “Procedure” and “Administration" are used to mark the distinction between "judicial action controlled by rule and action not so controlled,” and this distinction is much insisted on throughout the book. Mr. Salmond's criticism of the law of evidence a criticism with a special point for this country beyond what its author can well have realized

is quoted with approval:

“No unprejudiced observer can be blind to the excessive credit and importance attached in judicial procedure to the minutiæ of the law of evidence. This is one of the last refuges of legal formalism. Nowhere is the contrast more striking between the law's confidence in itself and its distrust of the judicial intelligence. The fault is to be remedied not by the abolition of all rules for the measurement of evidential value, but by their reduction from the position of rigid and peremptory to that of flexible and conditional rules. Most of them have their source in good sense and practical experience, and they are profitable for the guidance of individual discretion, though mischievous as substitutes for it.” And the advantage of flexible and rational methods as against the “rigidity of procedural law” is constantly urged. There are many acute and vigorous

comments on the extremes to which our system has gone in tying the hands of the trial judge and treating the law of evidence as a body of minute rules to bind him instead of general principles to guide his judgment, and the attacks on the anachronisms and absurdities of our criminal procedure are particularly refreshing. Altogether Mr. Chamberlayne has made a timely and valuable contribution to the cause of procedural reform.

The wide reading and long reflection which are shown in Mr. Chamberlayne's outlook on his subject as a whole, and in his understanding of its growth and tendencies, appear also in his treatment of Presumptions. He deals with this subject fully in four chapters entitled: “Inferences of Fact," “Presumptions of Law," "Pseudo-Presumptions,” and “Administrative Assumptions," and his careful discriminations will help to clear up a tangled and difficult head of the law.

When we turn from the general design of the work to its execution some criticisms suggest themselves. Its bulk is especially to be regretted in a book with so practical a purpose. In his preface Mr. Chamberlayne says:

“Another concession to this necessity for extreme economy in the use of time has been a reluctant indulgence in repetition and the employment of a high degree of condensation.” Whatever may be the compatibility of these two aims in the nature of things, certain it is that in the present instance the former has not been sacrificed to the latter. Mr. Chamberlayne himself confesses to “an amount of repetition which would scarcely be justified in any work which might fairly be expected to be more continuously read or examined at greater leisure.” 'And it leads to other difficulties than mere bulk. The reader, for example, turns with some perplexity from this passage in section 1294 (in support of which Tilley v. Damon, ii Cush. 247, might have been cited):

“A distinction should, upon principle, be drawn between the admission obtained by the use of duress, where the will is overpowered or controlled and cases in which the judgment has been misled, by falsifying motives while the will has been left free. The first class of statements are, strictly speaking, involuntary, not the act of the speaker, and should be peremptorily rejected as irrelevant,” to this in section 1560:

“No rule of exclusion exists or has been suggested as valuable in civil causes. In such cases the admission obtained by duress is admitted in the first instance. The statement is submitted to the jury although the effect of such duress as was inflicted was increased by the fact that the declarant was under arrest or in prison at the time."

It turns out too from the table of contents that topics as important as Writings and Witnesses will not be included in the four large volumes which we had supposed from the announcements would treat the law of evidence comprehensively. Footnotes indicate that these subjects are to be dealt with hereafter; and if the method of their treatment is no less discursive than that now employed we may look forward to something more than a fifth volume. “Common Knowledge” and “Special Knowledge," for instance, are classified according to various forms of human activity facts of “human experience," “social life," "history," "business” and the like, with further subdivisions such as “carpentering," "chemistry," and "engineering matters"; and we find not less than twenty-two pages allotted to such common knowledge as concerns itself with intoxicating liquors.

Mr. Chamberlayne's terminology also contains matter for serious reflection. In his introduction he says:

“The most obvious suggestion in entering upon the task of definition would be that of coining a novel nomenclature to which a definite scientific meaning could be once for all attached. So inviting a short-cut to precision must reluctantly be disregarded. As Pollock and Maitland (2 Hist. Eng. Law, p. 30) say: ‘The license that the man of science can allow himself of coining new words, is one which by the nature of the case is denied to lawyers.'

No doubt the coiner of new words exposes himself to the reproach of strangeness and pedantry, but at least he purchases accuracy and consistency at the price. The evils of his method at their worst can hardly match those which must follow from deliberately adopting so discredited and discreditable a phrase as res geste for an important part of his analysis. Mr. Chamberlayne has done this with his eyes open. He concedes that the term, while presenting an appearance of learned exactness,” is “notoriously” and seductively ambiguous (p. cxxi, § 47), “extremely versatile and elusive” ($ 48), and "of protean meaning” (p. Ixxxv), and he even seems to admit that it is “entirely superfluous and principally used at the present time on account of its convenient obscurity” ( 1026). Its adoption is the less to be excused in one who recognizes (p. cxvi) the importance to clearness of thought of a good terminology. Some of the resulting evils are already to be seen in the unfruitful discriminations between “component," "constituent,” and “res gestæ" facts, and in the suggestion that for some reason “res gestæ facts” are not the subject of judicial knowledge (S$ 700, 714 n. 8, 867). For the hearsay exception which has been afflicted with this name we must await with some apprehension a later volume.

A like criticism, though in a lesser degree, may be made of the terms "administration” and “procedure," the meanings of which are confessedly fixed in a “somewhat arbitrary manner” (p. cxvi). In favor of “administration” it may be said that the more familiar “discretion” is burdened with associations which impair its usefulness for Mr. Chamberlayne's excellent propaganda. But we nevertheless find ourselves involved in uncomfortable double meanings of "procedure” which might have given the author more concern but for his disposition (SS 167-171) to undervalue the distinction between rights and remedies. And the assumption that “procedure” imports rigidity is not happy in so enlightened an advocate of procedural flexibility.

A habit of statement so cautious that the margin of safety is sometimes excessive (“It has been said to be error for the presiding justice to leave such a preliminary question (of fact] to the jury,” $ 83. “Probative writings may well be construed by the judge as matter of law. Thus a judge will be justified in not leaving the construction of a letter to the jury," $ 130) has not saved Mr. Chamberlayne from the inaccuracies which so large a work naturally involves. In section 75, for example, Massachusetts is cited among states which have authorized juries, by judicial decision, “to invent or improvise a rule of law for themselves in criminal cases." In section 154 it is said that in Massachusetts the determination of foreign law as a question of fact“ has been added to the province of the court . . . by judicial decision”. a statement not only unwarranted by the cases cited to support it, but conspicuously inconsistent with Electric Welding Co. v. Prince, 200 Mass. 386. In section 382, York v. Pease, 2 Gray 282, is cited in support of the rather surprising proposition that “where rebuttal has been anticipated, as on the examination of the actor's witness, the subject may still be resumed, as a matter of right, upon rebuttal.” And in section 203, note 13, the case of United States v. Coolidge, decided in 1815, has led the author to say that “in Massachusetts a witness is not allowed to affirm merely because he prefers to do so. The privilege is strictly limited to Quakers,” a proposition which must be taken as of a period antedating Mass. Stat. 1824, c. 91.

Mr. Chamberlayne's matter is conveniently and attractively arranged for practical use, and an admirable index to the two volumes calls for special praise. The lack of a table of cases will of course be met in a later volume.

E. R. T.

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THE LAW OF THE AIR. Three Lectures delivered in the University of London.

By Harold D. Hazeltine. London: University of London Press. 1911. pp.

vii, 152. This work is unique among law books. A legal writer generally undertakes to state what has already been settled as law. The principal purpose of the present publication is to state legal questions which are likely to arise in future. “The recent rapid development” “of aerial navigation” presents problems of great importance, both in international law and private law. And, as to the solution of these problems, there is no universal agreement on the part of statesmen, and very little in the way of decision on the part of judges.

It will surprise many persons to learn how much some of the new problems have already been discussed by individual jurists, and been made the subject of debate by learned bodies. An international committee is attempting to frame a draft“code of the air"; "and it has already begun the publication of a monthly review devoted to the legal problems of aerial locomotion.” A draft bill respecting aerial navigation has been drawn by members of the American Bar Association. The leading theories thus far advanced are clearly summarized by Mr. Hazeltine in a very readable form.

One of the principal points in dispute is whether the prevailing doctrine as to the freedom of the ocean should be applied to the air space above the earth. Should the state be held to have ownership of, or sovereignty over, the entire air space above the earth; or no sovereignty whatever over any part of it; or a sovereignty limited to a zone of a certain height upon "the analogy of the three-mile maritime belt”? (See p. 25.) This "fundamental problem” is discussed in the First Lecture.

Mr. Hazeltine points out the lack of perfect analogy between the ocean and the air space (pp. 14, 15, 24, 25, 41-43). He thinks that the state does not have "ownership" of the air space (p. 40). But he thinks that the state has sovereignty over the entire air space (pp. 44-46, 51). And he believes that the use of this air space by aliens is a matter which can best be regulated by international agreements (pp. 31, 37, 143, 144).

Mr. Hazeltine's Third Lecture is largely occupied with a statement of the proposed rules of international law, in regard to the use of both wireless telegraphy and air vehicles in time of war, what rules have been proposed and by what countries adopted, what restrictions should be imposed upon belligerents and what upon neutrals. Mention is also made of proposed governmental regulations of the use of airships in time of peace; some regulations having special reference to the safety of passengers, and other regulations with a view to the safety of inhabitants of the district over which flight is attempted (pp. 128-135). The author foresees that “the marking out of the great aerial routes across the territories of states will become a necessity”; and also that “rules of the road will have to be established” (p. 134).

Practising lawyers will be especially interested in Mr. Hazeltine's Second Lecture, which deals with matters of "private law”; such as the correlative rights of landowners and aeronauts, and the liability of the latter for actual damage occurring without fault on their part. These questions are, in a great degree, still unsettled. Until quite lately, one could find in the reports only "a few scattered observations thrown out almost at random, incidentally uttered by judges dealing with cases which were in essence quite different.”1

The landowner cannot safely rely on the old maxim, Cujus est solum, ejus est usque ad cælum, as furnishing a satisfactory ratio decidendi. That maxim, taken in its literal and unqualified sense, is not likely to be recognized at the present time as a complete statement of the law. Two theories are prominent: One, that the air space above the earth belongs to the public; the other, that it belongs to the landowner. But each theory is subject to provisos and limitations which, in the great majority of cases, would bring about the same result, whichever theory is adopted. The public right, under the first theory, is subject to be exercised with due regard to the interests of the landowner. On the other hand the ownership of the landowner, under the second theory, is burdened by a right of passage for the public. The German Civil Code, Article 905, states that the right of the owner of the land extends to the entire air space above the surface; but adds: “The owner may not, however, forbid interference which takes place at such a height . . . that he has no interest in its prevention.”

1 See 22 Juridical Rev. 103.

Mr. Hazeltine inclines to the second theory, qualified as above stated (pp. 76–78). And a similar view is taken by Mr. Valentine.? Whichever theory, with its accompanying restrictions, is adopted, the result is likely to be practically as follows:

(1) If the airship comes in contact with the land, or with objects upon the land, there will be, at the very least, a primâ facie liability.

(2) If the airship passes over the land at a great height, e. g. one mile, without causing any actual damage, there will be no liability.

(3) If the airship passes so near to the land, or under such circumstances as to impair substantially the beneficial user of the land, there will be liability.

Of course the facts can be varied so as to raise some fine points which we do not here discuss. Nor do we consider under what circumstances the action of trespass quare clausum fregit would have been an appropriate remedy under the old forms of action.

If damage to land or person results from the use of the airship without negligence or other fault on the part of the navigator, is he absolutely liable? Mr. Hazeltine inclines towards absolute liability (pp. 83-86). Mr. Valentine writing with special regard to Scotch law, takes the opposite view.3 Even upon Mr. Valentine's view, a liberal application of the res ipsa loquitur doctrine would often enable a plaintiff to make out a primâ facie case.

Ultimately, some questions, which are now open ones, will be made the subject of statutory enactments. Mr. Valentine, however, deprecates the “premature interference of the legislature"; and urges delay until experience has made it plain what the problems are which are important to be thus dealt with.5

Mr. Hazeltine has made an excellent book, and must have spent much time in making himself acquainted with recent utterances on this modern topic. The leading theories and arguments are very clearly stated.

J. S.


II. A. D. 1509-1544; edited for the Selden Society by I. S. Leadam. (Being Vol. XXV of the publications of the Selden Society). London: Bernard

Quaritch. 1911. pp. cxxxiv, 382. The Selden Society volume for 1910 carries us away again into the realms of economic and institutional history. There is substantially nothing in the volume which makes its appeal on the legal side. The text itself, like that of the preceding volume on the Star Chamber, consists of the petitions and other

22 Juridical Rev. 95-96.

22 Juridical Rev. 99-101. Compare Judge Baldwin in 4 Am. J. of International Law, 101-102.

* See Judge Baldwin in 4 Am. J. of International Law, 101; and Mr. Hazeltine's Third Lecture, 128-135.

5 See 22 Juridical Rev. 103.



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