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law never refer a judge to the whole law of another country, but only to its internal laws. Professor Westlake discusses the two alternatives with his usual acumen. Article 27 of the new German Civil Code seems to apply the doctrine when it says, 'If by the law (Recht) of a foreign State, of which the laws (Gesetze) are declared' by different articles which it mentions, to be applicable, the laws (Gesetze) of Germany are to be applied, the latter shall be applied’; that is to say that the renvoi is admitted without any reference back. It is obvious that the doctrine arises out of the fact that some countries apply the law of the domicile in cases where others apply the law of nationality. This is not the place to discuss the question, but it occurs to us that where the law of a country prescribes that the national law of a foreigner shall apply, such a law can only mean that the law which attaches to his person, as the subject of the foreign State, and not merely a rule for the determination of conflicts of law, is applicable, and we take this also to be the view of our learned friend, the author, though the conclusion he sets out at the close of Chapter II (p. 40) does not appear to us to perfectly clear up the point.
Professor Westlake's book is too well known among the indispensable books on Private International Law to require any further commendation, and a new edition bringing all the matters of which he treats in it down to date can only be welcome.
La Constitution juridique de l'empire colonial britannique. Par H. SPEYER.
Paris: Arthur Rousseau. 1906. 8vo. viïi and 337 pp. (6 fr.) Both in France and in Belgium there has been great advance of late years in the accurate study of foreign institutions, and the present work of a learned Belgian is a good example. So far as the author has a thesis, it is that the leading factor in the development of the British Empire has been the character of its political institutions.
He describes the various types of government which are to be found under the British flag, from the complete dependency of a merely military station like Gibraltar to the complete autonomy of New Zealand or Canada. So far as we can judge without a very minute examination, his statements are founded on careful study of the best and most recent sources of information, and may be relied on throughout. To take a small point about which the present writer happens to know something, the practical supersession of Spanish law by the Common Law in Trinidad, on which it would be very easy to go wrong, is reported with absolute correctness. For a test of the work being up to date, the erection of Alberta and Saskatchewan (not Askatchewan as printed) into Provinces of the Dominion of Canada is duly recorded. From one unguarded sentence an uninformed reader might infer, but M. Speyer does not say, and we do not suppose him to believe, that the Supreme Court at Ottawa not only has authority to interpret the Confederation Act, but exists only for that purpose. The account of the Australian Commonwealth Act, anything but an easy subject, is remarkably clear. We doubt whether any Continental author before M. Speyer has explained so well, or at all, the singular juxtaposition in British India of Asiatic and European personal and territorial law.
The last chapter, entitled 'La Fédération impériale,' is to some extent in the nature of prophetic conjecture. We conceive that M. Speyer is a freetrader; at any rate he sums up the objections to Mr. Chamberlain's fiscal policy with great force. As to future constitutional development, we think he greatly exaggerates the difficulties of getting the existing Colonial Conferences, with or without a change of name, to do the work of a real Council of the Empire; and the alternative which he suggests of enlarging the number and functions of the Imperial Defence Committee is open to much graver objections on both imperial and colonial grounds. But one is agreeably surprised to find that a Continental student of our political system appreciates the importance of the Defence Committee so far as even to expect too much of it.
A Compendium of Mercantile Law. By JOHN WILLIAM Smith,
Eleventh Edition. By EDWARD LOUIS DE Hart and RALPH ILIFF
Lim. 1905. La. 8vo. Two volumes. lxxxiii and 1484 pp. (£2 28.) THE last edition of this well-known work was published in 1890. The editors of the present edition have re-arranged and partly re-written the chapters on the sale of goods and on partnership and on the contract of affreightment; they have also added a summary statement of the rules of patent law to the chapter hitherto dealing exclusively with goodwill and trade marks. They have not, however, succeeded in removing the principal faults pointed out in our notice of the last edition (L. Q. R., vol. vi. pp. 333-7), namely : 'absence of arrangement, inaccuracy of statement and failure to revise judiciously both the law and the practice therein stated with regard to the changed conditions of commerce.'
A legal textbook and more particularly a textbook on mercantile law which has lived for more than seventy years must of necessity suffer from senile decay. The editors, however able and industrious they may be, cannot do themselves justice while the fear of laying impious hands on a venerable arrangement and a venerable text hampers all their efforts. In the case of the book now before us, this fear seems to have gone even beyond the ordinary limits. The faults of arrangement have already been sufficiently dealt with in our notice of the last edition, but some of the instances in which the retention of the old text has had a particularly unfortunate effect may be given, so as to illustrate our meaning.
On p. 485 it is stated with reference to the fiction discarded in Aubert v. Gray (1862) 32 L. J. Q. B. 50, which at one time impaired the validity of an insurance effected by a foreigner against the acts of his own Government, that: 'this fiction has been disregarded, and a foreigner, in a time of peace, may effectually protect himself by such an insurance. What possible good can it do to a modern reader to be informed about a fiction, which in fact was not merely disregarded but utterly extirpated by the Court of Exchequer Chamber in 1862, and which already at that time was considered unwarranted by the most authoritative textbook writers ?
On p. 581 the text states, as regards contracts of ‘hiring and service,' that: “if there be no special agreement or no usage or custom, but the hiring is a general one without mention of time, it is considered to be for a year certain,' and (on p. 583) the author proceeds as follows: 'it was thought to follow from what is above stated, that if a master dismissed his servant (hired generally) without cause, the latter would have a right of wages up to the expiration of the year. This notion however has proved to be erroneous.' The case quoted as having proved the notion to be erroneous was decided in 1828. What possible object could there be for retaining either passage ? The first gives an incorrect statement of the
law; the second refers to an incorrect inference drawn from it, and recognized as incorrect by a judicial authority nearly eighty years ago.
On p. 660 the following statement begins the section on the form and requisites of a contract of sale : 'A sale of goods may either be by deed or parol. A sale by deed is not at present usual. When such a deed (which is denominated a bill of sale) is executed, the property in the goods conveyed by it passes out of the vendor into the vendee by its delivery.'. This suggests (1) that a bill of sale must necessarily be under seal ; (2) that the property in goods cannot be transferred by a contract of sale made by parol. The editors are of course aware of the fact that this is incorrect, but why did they retain such an archaic and incorrect passage by the side of the plain language of s. 3 of the Sale of Goods Act which is transcribed on the next page ?
The section on the nature of joint stock companies begins with the following passage (on p. 72): 'A joint stock company [established before the enactments presently mentioned and which has not adopted their provisions] is a partnership consisting of a large number of members, whose rights and liabilities would be precisely the same as those of any other sort of partners, had not their multitude obliged them to adopt certain peculiar regulations for the government of the concern, which are ordinarily contained in an instrument called the deed of settlement.' Here a type is selected as the starting-point for the explanation of the nature of joint stock companies, which if not entirely extinct, is dead for all practical purposes. This is sufficiently misleading, but the reader's confusion is increased by the passage (on p. 76) beaded ‘how formed and regulated,' which runs as follows: "A joint stock Company established before the ist November 1844 ... was usually formed by deed of settlement, as it is called, sometimes accompanied by a private Act of Parliament or a royal patent.' The statement (on p. 72) clearly refers to unincorporated companies, but the passage (on p. 76) which the reader must take to refer to the same class of companies, seems to draw no distinction between them and corporate bodies constituted by Act of Parliament or by Royal Charter; if this is not intended, the words 'accompanied by a private Act of Parliament or a royal patent' are quite unintelligible.
Many more examples could be added to those already given, illustrating the vice of the practice of continuing to bring out new editions of books on mercantile law written at a time since which the general conditions of life and the machinery of trade and commerce have been fundamentally changed and transformed in every direction.
There can be no two opinions on the unsatisfactory results of a method which aims at describing the present state of mercantile law by means of a series of postscripts to statements giving an account of the law as it existed at the time of William IV, and the principal faults of the present edition are due to the adoption of this method. The editors might however have exercised a little more diligence in the revision of inaccurate and misleading passages.
In addition to those already referred to we give a few more examples, taken from the chapters on negotiable instruments and bills of exchange, but many others could be added from these as well as from other parts of the book.
On p. 245, sect. 55 of the Bills of Exchange Act, 1882 (which defines the engagements as to acceptance and payment undertaken by the drawer of a bill of exchange) is transcribed in extenso and then the text proceeds as follows : 'If the drawee refuse to accept, the contract is broken and the Statute of Limitations begins to run in his favour from that period ...
Time runs in favour of an indorser or drawer from the time when he becomes liable to an action at the suit of the holder, that is, in general, when notice of non-acceptance or non-payment is given.' According to the natural interpretation of words this seems to mean that the statute runs in favour of the drawee from the time of non-acceptance, and in favour of the drawer or of an indorser from the time of the receipt of the notice of non-acceptance or non-payment, but it is hardly possible that the editors should have intended to convey such an absurd statement; for the liability referred to in s. 55 (1) is exclusively the drawer's liability; the drawee by not accepting a bill incurs no liability arising on the bill of exchange, and there can be no question affecting him as to the computation of the period of limitation. The first sentence, therefore, as well as the second must refer to the drawer's liability arising on the non-acceptance of the bill—the two sentences, however, do not agree as to the date from which the statute runs, and neither of them contains an accurate statement on the subject.
On p. 239 we read : 'an instrument is, properly speaking, negotiable when the legal right to the property secured by it is transferable from one man to another by its delivery. Of this description are bills of exchange and promissory notes payable to bearer or indorsed in blank.' Does this mean that bills of exchange or promissory notes drawn to order and not indorsed in blank are not negotiable instruments ?
On p. 242 it is stated that a cheque may be rendered not negotiable by crossing. If this means that an ordinary special or general crossing deprives a cheque of its negotiable character, the assertion is of course incorrect; if it alludes to the effect of the insertion of the words 'not negotiable,' a previously uninformed reader will hardly discover the meaning.
On p. 278 the following passage occurs : ‘A bill or note, though generally speaking negotiable, after it has become due, is nevertheless discharged by payment in due course by or on behalf of the drawee or acceptor, or, in the case of an accommodation bill, by the party accommodated. We have vainly tried to decipher the meaning of this sentence, but whatever its mcaning may be, it is clearly incorrect to say that an overdue bill is negotiable (see Bills of Exchange Act, 1882, s. 36 (2)).
A general book on mercantile law, as pointed out in our notice of the last edition, is not wanted by legal practitioners, who will naturally prefer to make use of the excellent textbooks which are in existence on every one of the subjects usually dealt with in such a work, but for students and even for men of business a well-arranged and accurate survey of the general principles of law affecting the several kinds of transactions usually occurring in mercantile business, and explaining the constitution of mercantile partnerships and companies and other trading associations would be extremely useful; such a book must primarily give an account of the present state of things, referring to extinct institutions and repealed or obsolete law only in so far as this is necessary to explain the existing rules, and above all it must be written in intelligible language and be free from mistakes similar to those which we have pointed out.
We do not of course object to historical statements as to the growth of the law, and we therefore appreciate the fact that the editors have retained Sir John Macdonell's excellent introduction as to the origins of the Law Merchant, but the law of to-day should be described in the language of to-day.
International Civil and Commercial Law as founded upon Theory, Legis
lation, and Practice. By F. Meili, Professor of International Private Law in the University of Zürich, &c. Translated and supplemented with additions of American and English law. By ARTHUR K. Kuhn. New York: The Macmillan Company; London: Macmillan & Co., Lim. 1905.
8vo. xxyii and 559 PP. MR. Kuhn deserves the thanks of English and American readers for his painstaking translation of Professor Meili's well-known treatise on private international law, which constitutes the first and—so far—the only attempt to give a comparative exposition of the varying theories and legal rules which respectively exist in European and other countries with reference to the conflict of laws. A judicious comparison of these rules is in itself a help to their intelligent interpretation, and a guide to the solution of many practical difficulties arising from the application of any particular system. Professor Meili's work contains most valuable material for such a comparison, but his own critical observations, though frequently valuable and suggestive, show a lack of unity and system which detracts from their usefulness. The author has hampered himself by comparing too many systems and too many opinions; a selection of the principal types would have facilitated his task as well as that of the reader.
To an English or to an American reader the comparison between his law and continental law is, of course, of special interest; and in view of this fact the translator has made considerable additions to the text, but, as the text itself also contains allusions to English and American law, this leads sometimes to repetition and at other times to contradiction. Thus there are two entirely contradictory assertions as to the English view on the rules upon which the validity of a marriage depends (comp. p. 220 with p. 224).
On some matters as to which the author and the translator are in agreement in their view of English law, they express opinions opposed to those of the recognized authorities. Thus the translator's assertion on p. 188 that it is uniformly held in both countries (viz. England and the United States) that the question of majority is one of national policy and therefore the lex loci actus ... will govern,' which corroborates Professor Meili's opinion expressed on p. 186, is clearly incorrect. The subject is one in which no uniformity of opinion has so far been attained (see Lord Macnaghten's dictum in Cooper v. Cooper (1888) 13 App. Cas. 88, 108), but there is no doubt whatever that, as to certain classes of transactions, the disabilities imposed by the law of his domicile upon a person deemed to be an infant according to that law are recognized by English Courts, irrespectively of the question whether, according to the lex loci contractus, such person would be deemed an infant or not (see Dicey, Conflict of Laws, pp. 543– 8; Westlake, Private Int. Law, 4th ed., pp. 41-4).
The author, when stating (on p. 160) that the status of a prodigus is not recognized in American or English law, is no doubt in agreement with some textbook writers of great authority, but the only decided cases on the subject (Worms v. de Valder (1880) 49 L. J. Ch. 261, and re Selot's Trust (1902] 1 Ch. 488) deal with persons placed under a conseil judiciaire' under French law, and rest mainly on the ground that the appointment of a 'conseil judiciaire' does not effect a change of status, It would therefore still be open to an English Court of first instance to recognize the disabilities imposed on a prodigus by the law of his domicile,