« PrethodnaNastavi »
where the subject of a foreign country, the law of which recognizes the lex domicilii (and not the lex originis) is domiciled in Germany, the German law will treat him as if he were or had been a German subject. The effect will be that the German courts will deal in one way with Frenchmen, Austrians, Italians, &c., they being subject to the law of nationality, and in another way with Englishmen, Americans, &c.
The principle of retaliation, which the law of Germany had already adopted in respect of foreign judgments and foreign creditors in bankruptcies, is conditionally provided for in sect. 31. It is made dependent upon a decree issued by the Imperial Chancellor, and sanctioned by the Federal Council, and is therefore not left to the opinion of the courts, as is the case with the enforcement of foreign judgments.
On the other hand, the widest scope is given to judicial discretion by sect. 30, which runs thus: "The application of a foreign law is excluded if such an application would infringe on morality, or the object of a German law.' This clausula generalis has already given rise to some controversy 1. It is considered to be questionable policy to give the judges carte blanche to such an extent, and the apprehension is expressed that it may justly lead to reprisals, even from quarters where legislation has hitherto resisted that principle.
[Dicta to the like effect are to be found in English judgments of authority, but it is doubtful whether they were necessary to the decisions, and still more doubtful whether they would be acted on to the full extent of their terms. They are generally taken as a saving of the right to make exceptions to the application of foreign laws in extreme cases which, as between civilized nations, can hardly ever happen.-ED.]
REVIEWS AND NOTICES.
[Short notices do not necessarily exclude fuller review hereafter.]
Investigation of Title, being a practical treatise and alphabetical digest of the law connected with the title to land, with precedents of requisitions. By W. HOWLAND JACKSON and THOROLD GOSSET. Second Edition. London: Stevens & Sons, Lim. 1899. 8vo. lii and 490 pp. (128. 6d.)
Precedents of Purchase and Mortgage Deeds, being a companion volume to the above. By the same AUTHORS. London: Stevens & Sons, Lim. 1899. 8vo. xiv and 199 pp. (78. 6d.)
THE rapid sale of the first edition of the volume dealing with investigation of title shows that the authors have produced a book which the profession find useful.
The present edition has been fully revised and to some extent enlarged; and we notice that the matters to which we called attention in our review of the first edition have been carefully considered. However the authors seem to retain their opinion (p. 180) that section I of the Land Transfer Act, 1897, applies to estates tail.
It remains to see whether the little book of precedents of purchase and mortgage deeds will be as great a success as its companion volume.
There can be no doubt that the system of severing the precedents from the notes and merely giving references to the dissertations in footnotes is for many purposes convenient; but whether there is really any demand for a book confined exclusively to purchase and mortgage deeds is open to doubt.
With so many existing standard books on this subject, the authors must have found it difficult to strike out a line of their own. To this must be attributed the want of crispness which sometimes appears in the drafting.
There is a very general opinion that so far as practicable conveyancers should endeavour to protect trustees from risk, and to give them as little to do in connexion with the trust as possible; in the face of this it seems strange that the authors (p. 39) should suggest that the trustees as well as the tenant for life should, where the latter sells, give covenants for title. The trustees cannot under their power sell without the consent of the tenant for life; hence his covenant for title is sufficient.
In using this book a solicitor would have no difficulty in giving directions as to what should be copied, but as a whole it seems to us that the book is better adapted to the requirements of students and articled clerks than of any other class of persons. B. L. C.
Principles of the English Law of Contract. By Sir WILLIAM R. ANSON, Bart. Ninth Edition. Oxford: at the Clarendon Press; London and New York: Henry Frowde. 1899. 8vo. xxxvi and 391 pp. (108. 6d.)
THE principal new feature in this edition is the short explanation at an early stage (pp. 11, 12) of the general nature of remedies in matters of contract. We do not doubt that this will be welcome and 'useful to beginners in the subject. Only we must humbly protest that the use of such terms as sharp practice,' which are unknown to the law, and can have no meaning in a court of justice, except on a purely discretionary question such as that of allowing or disallowing costs, does not tend to make things easier for novices in the end. Since the student by the time he comes to the very troublesome case of Dickinson v. Dodds, p. 37, will now know the difference between damages and specific performance, it might be well in the next edition to point out that, although only the House of Lords can overrule that decision, it was not actually decided that the plaintiff had no contract, but only that he could not have specific performance. Recent cases appear to have been diligently noted down to the latest possible date.
Advanced learners will continue to regret that Sir W. Anson's discussion of many interesting points is so brief. But this is unavoidable if the book is to remain of a size and character suitable for elementary instruction ; and for students of the elements we certainly think it is better to stimulate their intelligence by calling attention to disputable questions of principle, however briefly, than to leave such things alone on the ground of want of space.
A Treatise on the Law of Bills of Exchange. By the Right Hon. Sir JOHN BARNARD BYLES. Sixteenth Edition by MAURICE BARNARD BYLES and WALTER JOHN BARNARD BYLES. London: Sweet & Maxwell, Lim. 1899. 8vo. lxx and 582 pp.
BYLES on Bills belongs to that small class of text-books which are so good as to be almost beyond the range of criticism. Editors of such books are under a heavy responsibility to the profession. To introduce the modifications necessitated by recent decisions without unduly departing from the approved text of the author is no easy matter. The method too often adopted in such cases is, where a proposition of law has become obsolete, to change the present tense into the past, and then introduce the altered law with some such expression as 'but now.' This method is irritating to the reader and only permissible where the historical development of the law is thereby made plain. Another and hardly less vicious method is to leave the text unaltered and add the new matter to the notes. The editors of Byles on Bills incline to both methods. They have noted up the former edition with diligence, but they have not ventured to modify the text in accordance with recent decisions, and the new points are hidden away in the notes, instead of being exposed in the text. Thus Bank of England v. Vagliano, Clutton v. Attenborough, Scholfield v. Earl of Londesborough, Decroix v. Meyer, and In re Soltykoff, which are among the mostnoticeable cases of the last ten years, seem to have called for no alteration in the text, and even in the notes their effect is inadequately set forth.
Vagliano's case (which, by the way, is wrongly cited as Vagliano v. Bank of England) is worked in at the end of a very long note upon the question
whether it is material that the acceptor of a bill does not know that the payee is a fictitious person. No reference at all is made to the far-reaching effect of Lord Herschell's rules for interpreting a codifying statute by reference to the pre-existing law, nor to Lord Halsbury's admirable explanation of the meaning of the term 'fictitious person,' though these are the two matters which make the case important, and upon which the House of Lords differed from the Court of Appeal.
The two or three pages of discussion of the liability of infants on bills might now be reduced to a single sentence since the decision of In re Soltykoff.
It is unfortunate that the edition was not held back long enough to introduce the effect of the Finance Act, 1899, in its proper place instead of in the preface-a place where one does not usually look for addenda et corrigenda.
If Byles on Bills is to hold its place in the esteem of lawyers it must be re-edited and not merely noted up.
Model By-laws, Rules, and Regulations, under the Public Health and other Acts. By WILLIAM MACKENZIE and PERCY HANDFord. London: Shaw & Sons and Butterworth & Co. 1899. La. 8vo. Vol. I, xxxii and 597 pp. and 20 plates; Vol. II, xiv and 218 pp. (258.)
MANY of the Acts of Parliament by which our system of Local Government has been established give to the local authorities limited legislative powers in addition to their administrative functions. But in most cases the by-laws by which the legislative power is exercised have no validity until they have been confirmed by the Local Government Board. It appears to be the policy of that Board to secure a large measure of uniformity in the codes of the various local authorities, aud to that end they have issued model by-laws applicable to nearly all the subjects to which by-laws coming before them for approval relate. This policy, though possibly it somewhat fetters the independence of the local bodies, has manifest advantages. The local bodies get the benefit of the experience and good drafting of the experts who advise the Board; acquaintance with the bylaws of one district enables a person quickly and easily to become acquainted with those of another; and legal decisions on the effect of a by-law are often conclusive upon the interpretation of similarly expressed by-laws in other places.
Most of the models issued by the Board appear to be excellent in form and have been found to work well in practice. In the case of others improvements might be suggested. Thus the regulations for letting allotments by a Parish Council would be made much more useful if they contained clear provisions with regard to breaking up permanent pasture, removing trees and shrubs planted by the tenant, compensation, subletting and building on the allotment. These are just the things the tenant wants to know. The law upon them is scattered about in several Acts of Parliament. If it was embodied in the regulations or the agreement for letting, the tenant would have the information in an easily accessible form. Absurd and wholly inappropriate restrictions on building in country districts have been known to follow from the unthinking application of forms obviously intended for urban use, but we presume the Board is not answerable for this.
Messrs. Mackenzie and Handford have issued the Board's Model By-laws and Regulations together with some models suggested by themselves, and they have added explanatory notes and a general introduction. The notes appear in many cases to be very wide of the mark, and not always accurate. Thus with regard to Allotments. They say that allotments let by a Parish Council can only be let to persons belonging to the labouring population, giving as their authority s. 2 (1) of The Allotments Act, 1887. That section, however, does not apply to land hired by the Parish Council for allotments, and we know of no similar limitation applicable. The authors do not appear to appreciate the important differences between allotments provided by District Councils under the Act of 1887, and those provided by Parish Councils under the Act of 1894. What is the authors' authority for saying that the Chairman and Parish Councillors must seal the regulations? We fail to see what s. 182 of the Public Health Act, 1875, has to do with the matter, and s. 3 (9) of the Local Government Act, 1894, seems to make their signatures sufficient.
A lengthy note on Markets contains a considerable amount of miscellaneous information which has very little to do with by-laws, and is open to a good deal of criticism. The authors begin by quoting the ludicrous definition of a market given in the Report of the Royal Commission on Markets and Fairs, a source to which they seem to have gone for much of their law. Is it from the same source that they get the statement that 'tolls proper are leviable on the goods brought into a market for sale'? It has been said in an old case that by special custom toll may be leviable on all goods brought into a market (Leight v. Pym, 2 Lutw. 1336), but there can be no doubt that the usual common law toll is properly payable only on articles sold in the market.
The section on Disturbance of a Market seems to consist largely of an indiscriminate collection of extracts from the headnotes of reported cases; and without explanation they produce some startling results. Jessel M.R. and the Lords Justices on Appeal certainly did not decide in Elwes v. Payne (12 Ch. D. 468) that 'a market held on a Monday is in these days prima facie an injury to a market held on the Thursday,' though the headnote in the Law Reports lends some colour to that view.
Another example of headnote law is the statement that 'It is essential to the complaint of an old market against a new one set up near it, that the old one was competent to the accommodation of the public (O'Reilly, ex parte (1790), 1 Ves. J. 114; 1 R. R. 89).' This statement is identical with the summary of the case in Mews' Digest, which again is practically a reproduction of the side-note to the report of the case in 1 Vesey Jr. at p. 114. We notice also that our authors follow Mr. Mews' spelling of O'Reily in preference to that of the reporter. The side-note in Vesey Jr. is founded on an obiter dictum of Lord Thurlow in the course of his observations upon the hearing of an application for a patent for a new opera house in London. If Lord Thurlow had meant that to an action for disturbance of a market by setting up a rival market, it is a good defence that there is not room in the old market, as our authors seem to suppose, the dictum would be worthless in the face of the decision of the House of Lords in Great Eastern Railway Co. v. Goldsmid, 9 App. Cas. 927. In any case an off-hand dictum in an unargued case is not of much value; but, in fact, all that Lord Thurlow meant was that an owner of a market cannot successfully oppose the grant of a new market near his own, if the old market fails to provide sufficient accommodation for the public. Even in this sense the proposition is too wide, and no one would now contend that it is good law (see