EDITORIAL DEPARTMENT crimination, and the law can correct that, without violating or altering the Constitution, under one of the most sacred principles, the inviolability of contracts by state or national legislation." PUBLIC POLICY (Lynching). In " The Court v. The Mob," in the American Law Review (V. xl, p. 864), Edwin Maxey declares that lynching, despite " the specious plea that it is for the purpose of furthering the cause of justice," is in truth " resorted to for the purpose of gratifying a desire for revenge — a remnant of savagery." With equal keenness he says: "The mob excuses itself, and a great many well-meaning people are wont to excuse it, on the ground that " hanging was too good for him," that " the brute deserved all the punish ment he got," etc., etc. Grant all this and the main consideration has not been touched. We have not merely the claims of the crimi nal to consider, but those of the community as well, and viewed from the standpoint of the community, every consideration of law, moral ity, and expediency demands that the criminal shall be disposed of in a way least brutalizing to its members and least subversive to its peace and good order. The view which con siders merely the criminal is altogether too narrow." QUASI-CONTRACTS (Change of Position). The January Harvard Law Review has a quasicontract article by George P. Costigan, Jr. "Change of Position as a Defense in QuasiContracts — The Relation of Implied War ranty and Agency to Quasi-Contracts" (V. xx, p. 205). The action for money had and received to recover money paid by mistake of a material fact is the one which the author con siders; the words " change of position " are used " simply in the ordinary sense of such a change in the situation of the defendant in consequence of the mistake in payment as will entail financial loss to him if he has to make repayment. That change may consist in the loss of a legal right on the very claim or instrument upon which the payment is made, or in the giving up of property, or in delay in getting at the person really liable, or in the payment of money to third persons. Such a change of position may mean a total or only a
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partial loss, and, if the latter, can be of course only pro tanto a defense." The author's summing up is as follows: "This particular field has been somewhat neglected, so that exposition rather than argu ment is needed. Our exposition has disclosed that except in a few jurisdictions change of position caused by a payment made under mistake of fact, for which mistake the defend ant is not responsible, is a complete defense to an action to recover the money, unless by ex press contract or by a contract implied in fact the defendant has put it out of his power to make use of the defense. "It should be added that except in the few jurisdictions which allow a plaintiff to throw the loss upon an equally innocent defendant by taking from such defendant that title to the money which the plaintiff himself conferred upon the defendant, it is impossible to assert positively that the results reached by the courts are erroneous. It being conceded, as under our common law system it must be, that the general equitable doctrine that where the equities are equal the legal title must prevail has no application where by actual con tract, that is, by express contract or by con tract implied in fact, the parties agree that it shall not apply; the cases which find such an implied actual contract to exist rest upon an assumed general business understanding which is extremely difficult, if not impossible, to disprove. For that reason it is believed that they are now invulnerable to attack except through legislation. But vigorous protest may be effective, and therefore must still be raised, against those cases where equitable principle as such has been violated by the courts." QUASI-CONTRACTS. "The Doctrine of Boston Ice Company v. Potter," by George P. Costigan, Jr., in the January Columbia Law Review (Vol. vii, p. 32), is a careful examina tion with copious citations of a Massachusetts case, decided in 1877, which the author believes to have been correctly decided on wrong grounds. It was an action for the value of ice furnished by the plaintiff as assignee of an express contract, if the contract was assign able, but as the assignee sued in his own name, which then he had no right to do, no recovery could be had on the express contract. The
