Imágenes de páginas
PDF
EPUB

COMMENTARIES ON THE LAW OF CORPORATIONS. The object of this authorized American edition
Volume 5. By Seymour D. Thompson, LL. D.

of Sir William Anson's well-known treatise on Con

tract is to give parallel references to selected AmeriWe liave already given considerable space to the

can authorities where the American law corresponds l'eview of the first four volumes of this work, and

with the English law as stated by the author, and it is only necessary to say that the high praise be

to indicate clearly the points at which the Ameristowed upon the other volumes may properly be

can authorities either disagree wholly with the Eng. accorded to this one. No work of any time has lish law, or are strongly divided among themselves. been so large and tremendous as the series which It is easily seen at the first glance that no attempt we are now reviewing, and the entire volumes are at exhaustive citation of American authorities has really representative of the life work of the eminent | been made, as the sinplicity and conciseness of the and distinguished author. This volume begins author's treatment would be marred by a large numwith title 12, and the chapters begin with chapter ber of citations of cases, while the book would be 127 and end with chapter 172. Title 12 deals with

to that extent less useful to the student. The scope

of this work may not be thoroughly known to pracCorporate Powers and the Doctrine of Ultra Vires.

titioners thongh its value as a text-book is conceded. Title 13 deals with Corporate Bonds and Mortgages. For this reason it is well rather to give the subjectand is subdivided into six chapters on different

matter than to attempt any minute criticisms of the party of the subject Title 14 is in relation to Torts book. The work is divided into four parts, each of and Crimes of Corporations, and is divided into which is subdivided into one or more chapters eight chapters which are respectively on Civil Lia Part one deals with the Place of Contract in Juris. bility of Corporations for Torts, Liability for Tres-prudence. Part two considers the Formation of pass and Malicious Injuries, Liability for Frauds, Contract and is divided in chapters on Offer and Liability for Negligence, Rules of Dam:ges, Unlaw

Acceptance, Form and Consideration, Capacity of ful Trusts for the Control of Corporations and the Parties. Reality of Consent, Legality of Object. Prevention of Competition among them, Indict

Part three is on the Operation of Contract and in

cludes chapters on The Limits of the Contractual ment of Corporations, and Contempt by Corpora- Obligation and the Assignment of Contract. Part tions. Title 15 is on Insolvent Corporations and is

four deals with the Interpretation of Contract and divided into four chapters on Issignments for

contains chapters on Rules relating to Evidence and ('reditors, Preferring (reditors, Fraudulent Convey-Rules relating to Construction. Part five deals with ances by Corporations, Selling Out to a New Cor

the Discharge of Contract and is subdivided into poration, and Creditors' Suits. Title 16 is in rela

chapters on Discharge of Contract by Agreement, tion to the Dissolution and Winding Up of Cor- Discharge of 'ontract by Performance, Discharge porations, while Title 17 deals with Receivers of

of Contract by Brench, Discharge of Contract by ('orporations. This last title of volume 5 adds one

Impossibility of Performance, and Discharge of Conmore to the volumes of this most exhaustive and

tract by Operation of Law. Part six deals with important work.

Agency, containing chapters on the Mode in which Published by Bancroft (hitney Company, San

the Relation of Principal and Agent is created,

Effect of Relation of Principal and Agent, and DeFrancisco, Cal.

termination of Agent's Authority. This is followed by chapters on Contract and Quasi-Contract. The

index contains the title of the case, with the date TREATISE ON THE ENGLISH LAW OF CONTRACT,

of the decision and the reference to the page in the AND OF AGENCY IN ITS RELATION TO CONTRACT. By volume where the case is cited. This is a most Sir William R. Anson, Bart., D. C. L. of the Inner

convenient and useful arrangement, as it allows the Temple, barrister-at-law, wurden of All Souls' Col- question of time when the decision was rendered to lege, Oxford, 8th edition.

First American copy

be easily ascertained. right edition edited with American notes, by Ernest Published by Macmillan & Company, 66 Fifth W. Huffcut. professor of law in the Cornell Uni.

Avenue, New York city. Price, bound in cloth, versity of Law

$23.00.

[ocr errors]

the appointment is only marred by the great The Albany Law Journal. loss which we will sustain by Judge Peckham's

resignation from the Court of Appeals — a loss ALBANY, DECEMBER 7, 1895.

at once to the Court of Appeals and to his na

tive city. Current Lopics.

A very interesting article appears in the

American Law Review for September. The (All communications intended for the Editor should be ad

author, Mr. Knott, in writing on Lord Seldressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other

borne, says : business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.]

As Sir Roundell Palmer, Lord Selborne

succeeded to the role of Lord Westbury, as the НЕ

ham for Associate Justice of the Supreme of legal education. In 1833 the Incorporated Court of the United States has been received Law Society introduced a system of lectures, and with the greatest satisfaction and enthusiasm by in 1836, a qualifying examination for admission members of the Bar, who have always recog to practice in the solicitors' branch ; but, as nized in Judge Peckham a keenness of intel- late as 1870, the Inns of Court still continued lect, quickness of perception, honesty of pur- to call students to the Bar who need only pospose, uprightness of motives and thorough ap- sess the qualification of being able to eat and preciation of the law which few men have ever drink and write their names; provided they equalled in the learned profession. Judge ate and drank in the halls of the Inns, and paid Peckham's career as Judge of the Court of Ap- certain fees on making their signatures. In peals has entitled him and has given him the 1855 a commission had been appointed to indeepest respect and regard of the members of quire into the arrangements of the Inns of the court and of the Bar, who have viewed his Court in regard to legal education. In 1856 forcible opinions with the greatest favor, and it reported recommending that the four Inns of have considered them among the ablest that Court should be turned into a legal university, have ever been written by any member of the whose examinations or degrees should be necescourt of last resort of the State. The only re sary to enable persons to be called to the Bar; gret that has been heard is that our own high- and at which others of position in society, as est court will lose its senior Associate Justice, country gentlemen, who, as unpaid magistrates, one of the most experienced and learned jurists perform such important duties as administrators who has ever graced the bench of that court. of the law, might avail themselves of means of No words but those of praise can be uttered in legal studies, which were, up to that time, noregard to the nomination, and its wisdom will where provided for them. This report remained be made manifest in the early and prompt con- inoperative, chiefly owing to the resistance of firmation by the Senate.

the Ions of Court. They disliked contact with Judge Peckham was born in Albany fifty-six the public and with the freer air of the outer years ago, and entered upon the study of law world, which would have blown on them after at the age of eighteen, having previously grad- the creation of a body with specified duties and uated from the Albany Boys' Academy. After responsibilities imposed by Parliament. But three years' study he was admitted to the Bar, they proceeded in a feeble and languid manner beginning practice in his native city. In 1869 to justify their opposition, as they considered, he was elected district attorney of Albany by voluntary action through the Council of county, and in 1883 was elected to the Supreme Legal Education - an alliance of the four Court bench. Three years later he was elected | Inns for supplying certain lectures and holding to the Court of Appeals, wherein he has since non-compulsory examinations, which they had remained. During his life Judge Peckham has entered into in 1852. Peace reigned within held many posts of honor aside from those men their ancient walls for fourteen years longer, tioned, always enjoying the greatest faith and when Lord Selborne (then Sir Roundell Palconfidence of the people. Our gratification at I mer), who was out of office at the time, took

Vol. 52 No. 23.

up the task which Lord Westbury had dropped, arisen in recent years. The Hale and Norcross and he and others, in both branches of the pro- Silver Mining Company owns one of the claims fession, formed 'The Legal Education Associa on the Comstock lode in Nevada. It is a valution,' for the purpose of carrying out the plan able property, and ore worth many millions of of a legal university.

dollars has been taken from the mine. A stock“ He was its first president, and in a paper holder in the company made complaint a few on “Proposals for a University or School of years ago that some of the directors had de. Law,' and in his presidential address, he laid frauded the company out of more than $2,000, down the lines upon which the proposed school ooo by means of a conspiracy. He declared should be constituted.

that the directors, acting through the president “In 1876 he moved a resolution in the House of the company, caused the superintendent to of Commons for an address to the crown, pray mix low-grade ores with the high-grade ores, ing for a charter establishing such school or for the purpose of concealing their real value, university. The state of business prevented it and of giving employment to mills at which the from getting beyond the stage of his opening ores were crushed and milled. The directors, speech. The resolution was never heard of af it was charged, received some of the profits of terwards; and we are, at this day, apparently the milling company, which charged an exorbias little likely as ever to see a legal school es tant price for its work. The directors denied tablished, granting certificates of proficiency, or the accusation. The trial of the case occupied degrees to both branches of the profession, and nearly four months. The plaintiff obtained without which no person in either branch would judgment for over $1,000,000, but the case was be allowed to practice. The only result of the carried to the Supreme Court, which has now movement was to extract from the benchers an modified the judgment. The Supreme Court expression of opinion, and a scheme founded affirms that three of the directors formed a upon it, which has been in operation since 1871, fraudulent combination for mining and milling to the effect that, while it was not desirable that the ores, but that the other directors were the education of students articled to solicitors merely negligent and cannot be properly charged should be under one joint system of manage- with actual fraud. It declares that the three ment, yet that there should be a compulsory ex-directors caused a large quantity of worthless amination of students for the bar before being ure to be taken from the mine and milled after called, and that the four Inns of Court should being mixed with ores of a higher grade, and established such an examination through the that the charge for milling was one-third greater agency of the Council of Legal Education. than the cost, The Supreme Court allowed a Education under this system is no longer fla- judgment against some of the directors, though grantly insufficient, but it is far from satisfactory; for a smaller amount than that granted in the and there is not, for either branch of the pro- trial court, fession, anything like such efficient provision as may be found in Scotland, for example; and

To those restless spirits who always seek no law school so good as some of the larger law variety, even in the comparison of governments schools of America. The universities of Ox of the various nations, ancient and modern, the ford and Cambridge are not available for the interesting article in the Law Journal on majority of students; and though a London Guernsey government, revealing the peculiariuniversity would be more accessible for them,

ties of law and constitution to be found in the Channel Islands, will be welcome.

The article as the Edinburgh and Glasgow universities are for the Scottish students, the present London

is as follows:

The peculiarities of law and of constitution university is not a teaching but merely an examining body."

to be found in the Channel Islands have occa

sionally been touched upon by the wandering In Fox v. Hale and Norcross Silver Mining lawyer from the adjacent island of Great Company (41 Pac. Rep. 308), the Supreme Britain, and not always, unless he were an anCourt of California has decided one of the most tiquary, with unmixed delight. It is to be closely contested mining litigations which has feared, however, that the judgment of lawyers

in England does not distinguish with the clear- legislating. A nominal right of election on a ness which is desirable between the state of restricted franchise is a mere form. affairs in the different islands which compose 4. There is no relief from arbitrary imprisonthat fragment of the old Norman duchy which ment or exile. No code, statute or binding remains attached to the British Crown. For judicial precedent (even of the very judges the truth is that Jersey, while retaining much themselves) tempers the mere arbitrium of the of the mediæval form of government and judi- body which is executive, judiciary and Legislacature, has, with timely forethought, introduced ture combined. There is no appeal against its such modifications as were required to har. sentences in criminal matters. monize with the conditions of modern life. 5. There is no rule against ex post facto of reHence, in Jersey, what remains of the mediæval troactive legislation. The punishing body claims has the advantage of being picturesque, and the right to inflict punishment, notwithstanding has not the drawback of being antiquated and that no previously enacted law has been violated. obstructive. Jersey has representative govern- The bizarre defense of this paternal rule is that ment, separation of the legislature from the evil deeds are nipped in the bud before settled judiciary, and trial by jury ; while in Guern- courses of ill doing and example can grow up sey all the anachronisms flourish.

in the community. At the same time, the case is worse in Guern 6. As follows from what has been said, there sey than if it were one of mere survival of is none of that séperation des pouvoirs wherein medieval institutions. The antique freedom Montesquieu discovered the secret of English of constitution, which was to be found all over liberty. Judge, legislator and administrator are Western Europe before the centralizing mon- rolled into one. archies crushed out the local liberties of the 7. Magna Charta, which provides that judges provinces, exists in Guernsey no more. Local shall be learned in the law, has no force. liberty has disappeared, although the king was Twelve out of the thirteen judges are laymen. not the destroyer. By a fantastic inversion of 8. Last, and not least from the point of view rôles, the Royal Court of Justice was the of the administration of justice, the bar is not, usurper.

as in England, open to all who qualify by folWhat are the distinguishing features of the lowing a prescribed course of study. The Bar present system, which fifty years ago merited is limited to nominally six, really four, memthe condemnation of a royal commission? The bers, nominated by the head of the governing, answer will surprise most people. The present legislating, judging corporation. system rests

on a flat contradiction of every Other points whereat the English resident cherished maxim of English (and, indeed, of chafes are perhaps not fairly describable as most civilized) government, and on a denial of grievances, though they may detract from the every condition supposed by Englishmen to be amenities of residence. The language of the the defenses of English liberty and good ad supreme body, in all its various transmutations ministration. Let us see what are the chief of name, is French, even though the parties infeatures:

terested be English. Universal compulsory 1. There is no representative government in military service is imposed on all residents, Guernsey. The government, say the royal even on Englishmen who have no voice in the commissioners, is practically self-elected and government. hereditary.

In one of Sir Walter Besant's tales of the 2. There is no trial by jury. Accused persons future it is recorded how in England supreme are triable, and the property of all persons (in-power is grasped by the College of Physicians, cluding that of a large body of English resi- who have frightened the people into subjection dents) is under the judicial control of the same by the terror of microbes. Seated in the Caself-elected body, which constitutes the Legis- thedral of Canterbury, the college has absorbed lature, judiciary and executive.

the whole powers of government. In somewhat 3. There is taxation without representation; similar fashion the Royal Court of Guernsey the same body taxing as well as judging and has ousted all its rivals, and has concentrated

into its hands all the powers of administration. for it is hardly possible that, however curious,
As Sir Henry Maine would put it, Themis has these peculiarities, so often condemned, can
set up for herself in Guernsey. But by a happy last much longer.
stroke of irony the Royal Court of Justice,
which makes, interprets and supersedes the

A very pretty and proper distinction is made law, is not composed of lawyers; it is composed by the Court of Appeal in England in the case of twelve laymen, styled jurats, presided over

of Russell v. Russell, in which it is held that by one lawyer, called the bailiff, the latter nom

certain acts of the wife are sufficient to justify inally appointed by the crown, really chosen by the court in refusing to decree a restitution of the jurats. Bailiff and jurats alike, as the royal conjugal rights, but that they do not amount to commission attests, are practically a self-elected, legal cruelty sufficient to support the husband's hereditary body.

counter-claim for judicial separation. The It would be tedious to trace in detail the his

court holds that in order to constitute legal tory of the successful usurpations of this singu- cruelty as between husband and wife there must lar body. Suffice it to say that the bailiff and be danger to life, limb or health, bodily or

mental, or a reasonable apprehension of it. jurats in the beginning of the fourteenth century ousted the jurisdiction of the king's itiner. The wife, in a suit brought against her husband ant justices. At the end of the same century him with the commission of an unnatural

for judicial separation which failed, charged they encroached on the legislative authority of the medieval three estates of nobles, clergy and offense, and reiterated that charge subsequently, commons, herein exactly imitating the French notwithstanding the verdict of acquittal which judicial parlements. At three great church feshe had obtained. The wife then brought a tivals in the year, still called the Chief Pleas, suit for the restitution of conjugal rights, which the Guernsey jurats and bailiff pass ordinances

, the husband opposed on the grounds of cruelty precisely as Bacon describes their prototypes of on the part of the wife in making the above France, who for the purpose arrayed themselves charge, well knowing the same to be false ; and en robe rouge. A century ago in France the

he also counter-claimed for judicial separation code put an end to this usurpation: Il est

on the same ground. The court very properly fondu aux juges de prononcer par voie de disposi- held that the above charge was sufficient to tion générale ou réglementaire sur les causes qui justify it in refusing to decree restitution of leur sont soumises."

conjugal rights, and not enough to constitute
This is the anomalous body which is all in legal cruelty to support the husband's counter-
all in Guernsey. The military forces of the claim for judicial separation. An exhaustive
crown are at the disposal of the lieutenant-gov- opinion is written by Lopes, L. J., in which the
ernor appointed by the crown. All other mat- question of cruelty and other kindred subjects.
ters are avowedly or substantially in the hands are discussed fully, and which is entirely too
of the Royal Court. Sitting in Chief Pleas, the long to quote in the Law Journal. The
jurats and bailiff legislate; sitting as judges, case shows a pretty and proper distinction, as
they interpret their own enactments; sitting as we remarked before, and one which, as we
jurors, they decide on the facts in each cause; must place confidence in the court, is very fit-
sitting in appeal, they hear appeals from them- tingly determined.
selves. Dividing themselves, they validate wills
as single members, hold inquests as coroners,

LEGAL EDUCATION,
hear police cases as magistrates. And all this
time they are self-elective and hereditary.

BY THE LORD CHIEF JUSTICE OF ENGLAND.
Many other curious details of the adminis-

(Lord Russell of Killowea.)
tration in equal contrast to the institutions
of England as of France – might be given

. I
might be given. I the invitation of the Council of Legal Education,

you Enough, however, has been said to show that

to address you upon the subject of legal education. lovers of the curious and of “survivals ” should I felt honored by that invitation, but I confess it find enough to interest them in this one of the was not without misgiving that I accepted it. I Norman isles. And they should go soon to see,

felt — and I feel – how much more worthily this

[ocr errors][ocr errors]
« AnteriorContinuar »