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Doe v. Walker, 5 B. & C. III, 29 R. R. 184 ; Land Drainage Act, 1861, 8.35; Land Registry Act, 1862 ; Land Transfer Acts, 1875 and 1897, passim. The conflict between the legal and the popular view was recognized by the Real Property Commissioners in their Third Report of 1832, and they, on deliberate consideration, rejected a suggestion that the fundamental principle of tenure should be abolished and all land be made allodial, on the ground that the tenure of free and common socage had all the practical advantages of allodial ownership. Though the substantial identity for practical purposes of socage tenure in fee simple and allodial ownership cannot be denied, yet the greater part of the existing complexity of English land law scems to be due to the continued existence of the fee simple estate as a legal conception.
The substantial identity between the dominium of the Crown and the 'estate' of a subject in land, and judicial neglect of the technical distinction between the two things, are curiously illustrated in a case before the Privy Council, where the seisin in fee of the Crown'is spoken of: Nireaha Tamaki v. Baker (1901] A. C. at p. 574 (a New Zealand case).
(3) Law relating to persone. Questions relating to the rights, and methods of enforcing the rights, of natural persons who constitute a firm or other body of persons more or less organized, of the artificial or group persons known as corporations aggregate, and of the natural persons who are members of a corporation aggregate, questions of this kind afford striking illustrations, and perhaps the most interesting illustrations in the eyes of a jurist at the present day, of the divergence between the technical and the popular view. On the one hand, the popular view of a firm or a trade union is that they are legal entities hardly distinguishable from the lawyer's corporation aggregate, and are really conceived of as having a personality and legal rights and liabilities distinct from the personalities, rights, and liabilities of the persons constituting them. On the other hand, the essential feature of a corporation, and its recognition in law as an entity or personality distinct from the whole sum of the natural persons who are its members, are frequently overlooked by business men, especially as regards corporations constituted by registration under the Companies Acts. A business man who is a member of a firm nearly always thinks of his firm or house'as a separate entity. But if he and his partners take advantage of the Companies Acts in order to secure limited liability, they and the general public will seldom appreciate the fact that, as the law now stands, registration under the Acts has brought a new corporation into existence. Hence the very prevalent custom of addressing limited companies as Messrs. Brown, Jones, and Robinson, Limited ;
April, 1906.] Legal Conceptions from a Practical Point of View. 175
this technically incorrect usage is even adopted by lawyers, as may be seen by a letter from the author to the publishers prefixed to the second (temporary) volume of Williams' Vendor and Purchaser.
In this branch of law it seems possible that the efforts of jurists to bring about some sort of reconciliation between technical and popular views may at no distant date prove successful, and that the legal conception of a person' may be so far widened as to find room for group or collective persons other than wbat are now known as corporations. The subject of the true nature of the corporation bas been much discussed in recent years, and the liking of English lawyers for the 'fiction' theory appears now to be on the wane!. If the theory of the corporation being a real group or collective person, above and distinguished from the natural persons who are its members, comes to be recognized as the true theory of the English law of corporations, the recognition of organized bodies of men, which are not technically corporations, as legal entities would seem to be somewhat nearer. The language of the Courts and the Legislature appears to be growing bolder, both in recognizing the reality of a corporation's personality, and in recognizing the eventual possibility of non-corporate bodies of men becoming real legal entities. The heading to section 26 of the Companies Act, 1900 (63 & 64 Vict. c. 48) is defunct companies,' and the dissolution of such a company is spoken of in such a way as to suggest that the dissolution is rather the death certificate than the act of execution. The Rules of the Supreme Court enabling firms to sue and be sued (Order 48 a), and the judgments in the House of Lords in Taff Vale Railway v. Amalgamated Society of Railway Servants ( A. C. 426), go a long way towards recognizing firms and trade unions as 'legal entities. There is a curious note of uncertainty in Lord Macnaghten's words (p. 440), where he says : • A partnership firm, which is not a corporation, nor I suppose a legal entity, may now be sued in the firm's name.'
(4) Law relating to procedure. A most inconvenient legal conception has been established by the Court of Appeal in In re Scott & Alvarez' Contract (1895] 2 Ch. at p. 614, where it is laid down that the Supreme Court of Judicature has a double jurisdiction, the logical result of which the Court admitted to be unsatisfactory. But for the supposed necessity of this conception of a double jurisdiction, the case of In re Scott f. Alvarez' Contract would have been decided differently. That it is not impossible to dispense with this particular conception seems clear from the view, elsewhere taken by the Court of Appeal, that since the Judicature Acts there may under some circumstances be a single composite estate or interest, instead of two estates as formerly, one at common law and another in equity : see the observations made, and cases cited, by Farwell J. in Manchester Brewery Co. v. Coomb8 (1901] 2 Ch. at p. 617.
1 See an article in the L. Q. R. vol. xxi, p. 365 (October, 1905), by Professor Jethro Brown, and references there to the writings of Professor Maitland and Mr. Dicey; Pollock and Maitland, History of English Law (2nd ed.), vol. i, p. 486, note;
Pollock on Contracts (7th ed.), 113-116 ; Pollock, First Book of Jurisprudence (2nd ed.), 112.
The necessity or desirability of making such changes in the law as to bring legal conceptions into line with popular views must, of course, vary greatly in individual cases. Probably the fictions involved in the conceptions of constitutional law cause less general inconvenience than the fictions in other branches of law, and have some sentimental arguments in favour of their retention. All conceptions, however, which are really fictitious, involve waste of power to the community, and the burden of proof should be on those who advocate their continued existence. Particularly with respect to fictitious conceptions of property rights does reform seem to be advisable; the existence of fictions necessarily impedes transactions with property, and renders the law of property more difficult to acquire and practise. The inconvenience produced by long delayed reform in legal conceptions is illustrated in the case of Fines and Recoveries. The conception of an estate tail being incapable of being barred otherwise than by means of fictitious litigation continued to exist for about 180 years after the first attempt, made during the Commonwealth, to change it.
In order to carry out effectually any legislative scheme of law reform which included changes in legal conceptions, it would be necessary to adopt a method of drafting statutes somewhat different from that which now prevails. Whilst safeguarding existing rights, it would be necessary to frame a statute in such a way as to make it clear that a principle was laid down, which could be followed by the interpreting authority in applying the statute to individual cases. Two examples, the one good and the other bad, will make this clearer—the Act of 1660 for abolishing the military tenures (12 Car. 2, C. 24) and the Married Women's Property Act, 1882.
By the Act of 1660 all tenures of knight's service, &c., were enacted to be turned into free and common socage,' and all conveyances, &c., were to be construed as if the lands had been then held and continued to be holden in free and common socage only.' This enactment effects a radical reform by laying down a distinct principle in general terms, and does not seek to remedy a number of inconveniences in detail by a number of particular enactments.
With this method of legislating compare the method adopted in the Married Women's Property Act, 1882, by which it appears to April, 1906.] Legal Conceptions from a Practical Point of View. 177
have been intended to effect a reform quite as radical in kind. An attempt is made to remedy, by a number of particular enactments, various inconveniences which occurred to the draftsman as requiring remedy, with the result that a new and troublesome legal conception is created the legal separate estate--and many cases which required remedy were left unprovided for. The necessity for the numerous decisions on the meaning of the Act, and the enactment of two amending Acts, might have been saved had the required reform been effected by laying down the definite principle that coverture was not to create any disability, or difference of legal status, in a woman ; there would have been no difficulty in keeping on foot the existing rules as to restraint on anticipation of settled funds, if desired.
If legal conceptions could be made to accord with existing modern conditions, further necessary law reform would be made easier, and business men and owners of property would have far less difficulty in understanding their rights. The interpretation of the law would also be rendered very much less difficult for lawyers. The difficulties at present experienced both by laymen and lawyers, in consequence of the existence of immutable legal conceptions which do not accurately represent either existing facts or popular notions, must increase with the increase of the statute law; the statutes themselves, and the judges, as already pointed out, are frequently on the popular side, as against the jurists, in sanctioning untechnical views. Meanwhile, the juridical view remains the legal and technically correct view until changed by statute, or until some Court is bold enough to decide, in the absence of a reforming statute, that the juridical view has undergone a change.
JAMES EDWARD Hogg.
THE LEGAL PERSONALITY OF A FOREIGN
sities, and hospitals, were the principal members of their class, it was natural for people to think of a corporation as fixed to one place from which it could not move. In England this natural tendency found expression in the early rule of law, that every corporation must be incorporated as of some locality. It was said that the titular locality of incorporation must be limited to some certain place, such as a town, and must not be too large and uncertain, such as a county or bishopricl: and from this it seems as if the necessity for a titular locality may have grown from the common idea that a corporation was tied to one place. But the idea that the titular locality was the place to which it was tied vanished in course of time, and left the necessity for such a locality as a mere arbitrary rule. Already in the sixteenth century the locality might be fictitious. Catherine, the first wife of King Henry VIII, had a licence to found a chauntry by the name of the Chauntry de Monte Calvarie extra Algate Lond.? ' People did not think of the corporation as resident on Mount Calvary by Aldgate. When the titular locality could be fixed at a fictitious place, the reason for the rule that such a locality was necessary had been forgotten; and the rule having become a mere formality was in course of time itself forgotten also.
In contrast with the habits of modern trading corporations, corporations of the old type were content for the most part to stay at home. From early times, indeed, companies of merchant adventurers and chartered companies differed prominently from other corporations in this respect; but partly by chance, partly because of their own circumstances and those of their times, their foreign operations gave little trouble to lawyers of the foreign lands in which they were conducted; and questions about the status of foreign corporations were thus preserved for later times to discuss. Until the beginning of the seventeenth century companies of merchant adventurers, when they possessed any corporate character at all, were incorporated for the purposes of internal administration only. The company as a person concerned itself Vin., Abr, Corporations (D).
2 Coke, 10 Rep. 32 b.