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THE GREEN BAG

eluding " that the practice of conveyancers in using words of limitation in the creation of easements de novo has been merely ex abundanti canlela. ROMAN LAW. The first article in the first number of the new Maine Law Review is a brief argument in favor of the study of Roman Law, by Chief Justice Emery of the Maine Supreme Court. He emphasizes the fact that while many systems of law have disappeared or become stationary, like the Hindoo law, the Roman Law, though of ancient origin, is still spreading and developing. The practical reason for its study in this country is its relation to the fundamental law of our new possessions. SALES (Market Overt). " The Change of the Property in Goods by Sale in Market Overt," by J. G. Pease. Columbia Law Review (V. viii, p. 375). A history of the principle of sale in market overt, giving also the present state of the English law. TORTS (Moral Duty). "The Moral Duty to Aid Others as a Basis of Tort Liability. I," by Francis H. Bohlen. University of Penn sylvania Law Review and American Law Register (V. Ivi, p. 217). Professor Bohlen is moved by several recent cases to inquire "how far, if at all, is one man bound, being able to do so without serious inconvenience to himself, to go out of his way to care for those injured without any fault of his? ... It is 'curious to find that many text writers flatly assert the existence of such a duty, at least in those cases where the harm or peril has -been caused by some act of the defendant, even though that act be legally innocent. This doctrine is so opposed to the normal attitude of common law, and to the statements thereof, (generally, it is true) by way of dictum, of so many eminent judges, that it is necessary to examine the decided cases to see whether thev afford any authority in favor, first, of a general duty to act as a good Samaritan; or, second, whether innocent but injurious action entails upon the actor a duty to remove as far as possible the injury which he has caused; or, third, whether again, there may not be other definite classes of circumstances or. relations out of which may arise a duty of this sort peculiar to themselves." In the first place the author deduces that the rule against actively causing harm to a trespasser whose presence is known, and the

doctrine of the last clear chance afford no authority for the doctrine that " the law has recognized as a legal duty the moral, ethical and humanitarian obligation to aid the un fortunate." "It may be said with some confidence that the primary conception of the common law was that which regarded the individual as competent to protect himself if not inter fered with from without. So while there is a general liability recognized in common law courts for the natural consequences of all actions whose probable result will be a posi tive injury to others, duties of positive action for the benefit of others are not general to the common law, but exceptional and abnormal, requiring some other basis than the mere probability that such action is necessary to protect others from an injurious situation not caused by any antecedent misconduct of the defendant himself. Now, while the duty to take active care for others is not general in the common law, there are undoubtedly many relations to which duties of this nature of varying stringency do attach." Professor Bohlen doubts if breach of obli gation to take positive beneficial action ever should have been regarded as a true tort, the differences between it and active misconduct being so marked. But the historical de velopment of the writ of trespass on the case, and the common law tendency to classify rights by the remedy applicable, rather than by their substantive characteristics have re sulted in ignoring these differences. "Were it possible to rearrange and reclassify common law liabilities and duties one might place all obligations to act in a class distinct from the obligations to refrain from injurious actions (if this indeed be the proper conception of tort liability). While such an attempt would, at this date, savor of mere theory and useless affection, it is quite possi ble to segregate such positive obligations as remain after the removal of those based solely on the consent of the individuals into a distinct class of tort obligation. "This class is composed of certain distinct groups: First, those obligations expressly created by statute, in which the extent of the obligation depends entirely upon the intent of the legislative body which enacts the statute.