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COMMENTARIES ON THE LAW OF CORPORATIONS. Volume 5. By Seymour D. Thompson, LL. D.

We have already given considerable space to the review of the first four volumes of this work, and it is only necessary to say that the high praise bestowed upon the other volumes may properly be accorded to this one. No work of any time has been so large and tremendous as the series which we are now reviewing, and the entire volumes are really representative of the life work of the eminent and distinguished author. This volume begins with title 12, and the chapters begin with chapter 127 and end with chapter 172. Title 12 deals with Corporate Powers and the Doctrine of Ultra Vires. Title 13 deals with Corporate Bonds and Mortgages, and is subdivided into six chapters on different parts of the subject. Title 14 is in relation to Torts and Crimes of Corporations, and is divided into eight chapters which are respectively on Civil Liability of Corporations for Torts, Liability for Trespass and Malicious Injuries, Liability for Frauds, Liability for Negligence, Rules of Damages, Unlawful Trusts for the Control of Corporations and the Prevention of Competition among them, Indict

ment of Corporations, and Contempt by Corporations. Title 15 is on Insolvent Corporations and is divided into four chapters on Assignments for Creditors, Preferring Creditors, Fraudulent Conveyances by Corporations, Selling Out to a New Corporation, and Creditors' Suits. Title 16 is in rela tion to the Dissolution and Winding Up of Corporations, while Title 17 deals with Receivers of Corporations. This last title of volume 5 adds one

more to the volumes of this most exhaustive and important work.

Published by Bancroft-Whitney Company, San Francisco, Cal.

TREATISE ON THE ENGLISH LAW OF CONTRACT, AND OF AGENCY IN ITS RELATION TO CONTRACT. By Sir William R. Anson, Bart., D. C. L. of the Inner Temple, barrister-at-law, warden of All Souls' College, Oxford, 8th edition. First American copyright edition edited with American notes, by Ernest W. Huffcut, professor of law in the Cornell University of Law.

The object of this authorized American edition of Sir William Anson's well-known treatise on Contract is to give parallel references to selected American authorities where the American law corresponds with the English law as stated by the author, and to indicate clearly the points at which the American authorities either disagree wholly with the English law, or are strongly divided among themselves. It is easily seen at the first glance that no attempt at exhaustive citation of American authorities has been made, as the simplicity and conciseness of the author's treatment would be marred by a large number of citations of cases, while the book would be to that extent less useful to the student. The scope of this work may not be thoroughly known to practitioners though its value as a text-book is conceded. For this reason it is well rather to give the subjectmatter than to attempt any minute criticisms of the book. The work is divided into four parts, each of which is subdivided into one or more chapter Part one deals with the Place of Contract in Juris prudence. Part two considers the Formation of Contract and is divided in chapters on Offer and Acceptance, Form and Consideration, Capacity of Parties, Reality of Consent, Legality of Object. Part three is on the Operation of Contract and includes chapters on The Limits of the Contractual

Obligation and the Assignment of Contract. Part four deals with the Interpretation of Contract and contains chapters on Rules relating to Evidence and Rules relating to Construction. Part five deals with the Discharge of Contract and is subdivided into chapters on Discharge of Contract by Agreement, Discharge of ontract by Performance, Discharge of Contract by Brench, Discharge of Contract by Impossibility of Performance, and Discharge of Contract by Operation of Law. Part six deals with Agency, containing chapters on the Mode in which the Relation of Principal and Agent is created, Effect of Relation of Principal and Agent, and Determination 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 of the decision and the reference to the page in the volume where the case is cited. This is a most convenient and useful arrangement, as it allows the question of time when the decision was rendered to be easily ascertained.

Published by Macmillan & Company, 66 Fifth Avenue, New York city. Price, bound in cloth, $3.00.

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The Albany Law Journal.

ALBANY, DECEMBER 7, 1895.

Current Topics.

[All communications intended for the Editor should be addressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.]

THE

HE nomination of the Hon. Rufus W. Peckham for Associate Justice of the Supreme Court of the United States has been received with the greatest satisfaction and enthusiasm by members of the Bar, who have always recognized in Judge Peckham a keenness of intellect, quickness of perception, honesty of purpose, uprightness of motives and thorough appreciation of the law which few men have ever equalled in the learned profession. Judge Peckham's career as Judge of the Court of Appeals has entitled him and has given him the deepest respect and regard of the members of the court and of the Bar, who have viewed his forcible opinions with the greatest favor, and have considered them among the ablest that have ever been written by any member of the court of last resort of the State. The only regret that has been heard is that our own highest court will lose its senior Associate Justice, one of the most experienced and learned jurists who has ever graced the bench of that court. No words but those of praise can be uttered in regard to the nomination, and its wisdom will be made manifest in the early and prompt confirmation by the Senate.

Judge Peckham was born in Albany fifty-six years ago, and entered upon the study of law at the age of eighteen, having previously graduated from the Albany Boys' Academy. After three years' study he was admitted to the Bar, beginning practice in his native city. In 1869 he was elected district attorney of Albany county, and in 1883 was elected to the Supreme Court bench. Three years later he was elected to the Court of Appeals, wherein he has since remained. During his life Judge Peckham has held many posts of honor aside from those mentioned, always enjoying the greatest faith and confidence of the people. Our gratification at VOL. 52 No. 23.

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A very interesting article appears in the American Law Review for September. The author, Mr. Knott, in writing on Lord Selborne, says:

"As Sir Roundell Palmer, Lord Selborne succeeded to the rôle of Lord Westbury, as the advocate of a fundamental reform in the system of legal education. In 1833 the Incorporated Law Society introduced a system of lectures, and in 1836, a qualifying examination for admission to practice in the solicitors' branch; but, as late as 1870, the Inns of Court still continued to call students to the Bar who need only possess the qualification of being able to eat and drink and write their names; provided they ate and drank in the halls of the Inns, and paid certain fees on making their signatures. In 1855 a commission had been appointed to inquire into the arrangements of the Inns of Court in regard to legal education. In 1856 it reported recommending that the four Inns of Court should be turned into a legal university, whose examinations or degrees should be necessary to enable persons to be called to the Bar; and at which others of position in society, as country gentlemen, who, as unpaid magistrates, perform such important duties as administrators of the law, might avail themselves of means of legal studies, which were, up to that time, nowhere provided for them. This report remained inoperative, chiefly owing to the resistance of the Inns of Court. They disliked contact with the public and with the freer air of the outer world, which would have blown on them after the creation of a body with specified duties and responsibilities imposed by Parliament. But they proceeded in a feeble and languid manner to justify their opposition, as they considered, by voluntary action through the Council of Legal Education an alliance of the four Inns for supplying certain lectures and holding non-compulsory examinations, which they had entered into in 1852. Peace reigned within their ancient walls for fourteen years longer, when Lord Selborne (then Sir Roundell Palmer), who was out of office at the time, took

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arisen in recent years. The Hale and Norcross Silver Mining Company owns one of the claims on the Comstock lode in Nevada. It is a valu able property, and ore worth many millions of dollars has been taken from the mine. A stockholder in the company made complaint a few years ago that some of the directors had defrauded the company out of more than $2,000, ooo by means of a conspiracy. He declared that the directors, acting through the president of the company, caused the superintendent to

for the purpose of concealing their real value, and of giving employment to mills at which the ores were crushed and milled. The directors, it was charged, received some of the profits of the milling company, which charged an exorbitant price for its work. The directors denied the accusation. The trial of the case occupied nearly four months. The plaintiff obtained judgment for over $1,000,000, but the case was carried to the Supreme Court, which has now modified the judgment. The Supreme Court affirms that three of the directors formed a fraudulent combination for mining and milling the ores, but that the other directors were merely negligent and cannot be properly charged with actual fraud. It declares that the three directors caused a large quantity of worthless ore to be taken from the mine and milled after being mixed with ores of a higher grade, and that the charge for milling was one-third greater than the cost. The Supreme Court allowed a judgment against some of the directors, though for a smaller amount than that granted in the trial court.

"In 1876 he moved a resolution in the House 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 university. The state of business prevented it from getting beyond the stage of his opening speech. The resolution was never heard of af: terwards; and we are, at this day, apparently as little likely as ever to see a legal school established, granting certificates of proficiency, or degrees to both branches of the profession, and without which no person in either branch would be allowed to practice. The only result of the movement was to extract from the benchers an expression of opinion, and a scheme founded upon it, which has been in operation since 1871, to the effect that, while it was not desirable that the education of students articled to solicitors should be under one joint system of management, yet that there should be a compulsory examination of students for the bar before being called, and that the four Inns of Court should established such an examination through the agency of the Council of Legal Education. Education under this system is no longer flagrantly insufficient, but it is far from satisfactory; and there is not, for either branch of the profession, anything like such efficient provision as may be found in Scotland, for example; and no law school so good as some of the larger law schools of America. The universities of Oxford and Cambridge are not available for the majority of students; and though a London university would be more accessible for them, as the Edinburgh and Glasgow universities are for the Scottish students, the present London university is not a teaching but merely an examining body."

In Fox v. Hale and Norcross Silver Mining Company (41 Pac. Rep. 308), the Supreme Court of California has decided one of the most closely contested mining litigations which has

To those restless spirits who always seek variety, even in the comparison of governments of the various nations, ancient and modern, the interesting article in the LAW JOURNAL on Guernsey government, revealing the peculiari

ties of law and constitution to be found in the Channel Islands, will be welcome. The article is as follows:

The peculiarities of law and of constitution to be found in the Channel Islands have occa sionally been touched upon by the wandering lawyer from the adjacent island of Great Britain, and not always, unless he were an antiquary, with unmixed delight. It is to be feared, however, that the judgment of lawyers

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in England does not distinguish with the clear

ness which is desirable between the state of affairs in the different islands which compose that fragment of the old Norman duchy which remains attached to the British Crown. For

the truth is that Jersey, while retaining much of the mediæval form of government and judicature, has, with timely forethought, introduced such modifications as were required to har monize with the conditions of modern life. Hence, in Jersey, what remains of the medieval has the advantage of being picturesque, and has not the drawback of being antiquated and obstructive. Jersey has representative government, separation of the legislature from the * judiciary, and trial by jury; while in Guernsey all the anachronisms flourish.

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At the same time, the case is worse in Guernsey than if it were one of mere survival of mediæval institutions. The antique freedom of constitution, which was to be found all over Western Europe before the centralizing monarchies crushed out the local liberties of the provinces, exists in Guernsey no more. Local liberty has disappeared, although the king was not the destroyer. By a fantastic inversion of rôles, the Royal Court of Justice was the

usurper.

legislating. A nominal right of election on a restricted franchise is a mere form.

What are the distinguishing features of the present system, which fifty years ago merited the condemnation of a royal commission? The answer will surprise most people. The present system rests on a flat contradiction of every cherished maxim of English (and, indeed, of most civilized) government, and on a denial of every condition supposed by Englishmen to be the defenses of English liberty and good administration. Let us see what are the chief features:

1. There is no representative government in Guernsey. The government, say the royal commissioners, is practically self-elected and hereditary.

4. There is no relief from arbitrary imprisonment or exile. No code, statute or binding judicial precedent (even of the very judges. themselves) tempers the mere arbitrium of the body which is executive, judiciary and Legislature combined. There is no appeal against its sentences in criminal matters.

2. There is no trial by jury. Accused persons are triable, and the property of all persons (including that of a large body of English residents) is under the judicial control of the same self-elected body, which constitutes the Legislature, judiciary and executive.

3. There is taxation without representation; the same body taxing as well as judging and

5. There is no rule against ex post facto of retroactive legislation. The punishing body claims the right to inflict punishment, notwithstanding that no previously enacted law has been violated. The bizarre defense of this paternal rule is that evil deeds are nipped in the bud before settled courses of ill doing and example can grow up in the community.

6. As follows from what has been said, there is none of that séperation des pouvoirs wherein Montesquieu discovered the secret of English liberty. Judge, legislator and administrator are rolled into one.

7. Magna Charta, which provides that judges shall be learned in the law, has no force. Twelve out of the thirteen judges are laymen.

8. Last, and not least from the point of view of the administration of justice, the bar is not, as in England, open to all who qualify by following a prescribed course of study. The Bar is limited to nominally six, really four, members, nominated by the head of the governing, legislating, judging corporation.

Other points whereat the English resident chafes are perhaps not fairly describable as grievances, though they may detract from the amenities of residence. The language of the supreme body, in all its various transmutations of name, is French, even though the parties interested be English. Universal compulsory military service is imposed on all residents, even on Englishmen who have no voice in the government.

In one of Sir Walter Besant's tales of the future it is recorded how in England supreme power is grasped by the College of Physicians, who have frightened the people into subjection by the terror of microbes. Seated in the Cathedral of Canterbury, the college has absorbed the whole powers of government. In somewhat similar fashion the Royal Court of Guernsey has ousted all its rivals, and has concentrated

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A very pretty and proper distinction is made by the Court of Appeal in England in the case

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 law, is not composed of lawyers; it is composed of twelve laymen, styled jurats, presided over by one lawyer, called the bailiff, the latter nominally appointed by the crown, really chosen by the jurats. Bailiff and jurats alike, as the royal commission attests, are practically a self-elected, hereditary body.

It would be tedious to trace in detail the his

tory of the successful usurpations of this singu.
lar body. Suffice it to say that the bailiff and
jurats in the beginning of the fourteenth cen-
tury ousted the jurisdiction of the king's itiner.
ant justices. At the end of the same century
they encroached on the legislative authority of
the medieval three estates of nobles, clergy and
commons, herein exactly imitating the French
judicial parlements. At three great church fes-
tivals in the year, still called the Chief Pleas,
the Guernsey jurats and bailiff pass ordinances,
precisely as Bacon describes their prototypes of
France, who for the purpose arrayed themselves
en robe rouge.
A century ago in France the
code put an end to this usurpation: "Il est dé-
fendu aux juges de prononcer par voie de disposi-
tion générale ou réglementaire sur les causes qui

leur sont soumises."

This is the anomalous body which is all in all in Guernsey. The military forces of the crown are at the disposal of the lieutenant-governor appointed by the crown. All other matters are avowedly or substantially in the hands of the Royal Court. Sitting in Chief Pleas, the jurats and bailiff legislate; sitting as judges, they interpret their own enactments; sitting as jurors, they decide on the facts in each cause; sitting in appeal, they hear appeals from themselves. Dividing themselves, they validate wills as single members, hold inquests as coroners, hear police cases as magistrates. And all this time they are self-elective and hereditary.

Many other curious details of the administration in equal contrast to the institutions

of Russell v. Russell, in which it is held that certain acts of the wife are sufficient to justify the court in refusing to decree a restitution of conjugal rights, but that they do not amount to legal cruelty sufficient to support the husband's counter-claim for judicial separation. The court holds that in order to constitute legal cruelty as between husband and wife there must be danger to life, limb or health, bodily or mental, or a reasonable apprehension of it. The wife, in a suit brought against her husband him with the commission of an unnatural for judicial separation which failed, charged offense, and reiterated that charge subsequently, notwithstanding the verdict of acquittal which he had obtained. The wife then brought a suit for the restitution of conjugal rights, which the husband opposed on the grounds of cruelty on the part of the wife in making the above charge, well knowing the same to be false; and he also counter-claimed for judicial separation on the same ground. The court very properly held that the above charge was sufficient to justify it in refusing to decree restitution of conjugal rights, and not enough to constitute legal cruelty to support the husband's counterclaim for judicial separation. An exhaustive opinion is written by Lopes, L. J., in which the question of cruelty and other kindred subjects are discussed fully, and which is entirely too long to quote in the LAW JOURNAL. The case shows a pretty and proper distinction, as we remarked before, and one which, as we must place confidence in the court, is very fittingly determined.

of England as of France - might be given. I

Enough, however, has been said to show that lovers of the curious and of "survivals" should find enough to interest them in this one of the Norman isles. And they should go soon to see,

LEGAL EDUCATION.

BY THE LORD CHIEF JUSTICE OF ENGLAND. (Lord Russell of Killowea.)

APPEAR before you this evening, in response to the invitation of the Council of Legal Education, to address you upon the subject of legal education. I felt honored by that invitation, but I confess it was not without misgiving that I accepted it. I felt- and I feel-how much more worthily this

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