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by means of an old shaft? what the rights of a dowress may be in mines opened after her husband's death? how far the owner of the soil may, by injunction, prevent his property being broken up to insert gas-pipes, telegraph wires, &c. &c. ? when trespass will lie against companies who have obtained parliamentary_powers to construct canals, railways, &c. &c. ? Mr. Yool, in his Essay on Waste, Nuisance, and Trespass, has collected, and commented upon the judicial decisions and recent statutes which exhibit the application of the ancient maxims and doctrines of the common law to the new wants and circumstances of civilised times. It is no disparagement to add that originality was possible only in the exposition of the more recent decisions and later statutes. The old treatises had sufficiently expounded the old law ; but, in addition to a very clear and strictly accurate account of what may not perhaps be to the reader altogether new, he will find valuable additions to the ancient learning in the modern cases which have been judiciously selected and intelligently construed.
It should also be stated that the volume has been compiled chiefly to explain the equitable reliefs and remedies which may be obtained in the Court of Chancery and Common Law, in reference to these correlate offences. Considering the progress which has recently been made in the assimilation of the powers and procedure of the Courts of Law and Equity, it is to be regretted that the author has not embodied in his treatise to a sufficient degree the practice of the former in regard to injunctions and other equitable powers recently conferred upon them, and which they not unfrequently exercise in cases of waste, trespass, and nuisance. This work will probably pass through the present edition rapidly ; and the next, we trust, will be supplemented with an account of the operation of the new statutory common law powers conferred on the Court of Chancery, as far as pertinent to the subjects treated of in this book, and also of the equitable powers exercised in reference to the same in Westminster Hall.
The Merchant Shipping Amendment Act, 1862. With an Intro
ductory Analysis, an Appendix, &c. By James O'Dowd, Esq., of the Middle Temple, Barrister-at-Law and Assistant-Solicitor for the Merchant Shipping Department of Her Majesty's Customs.
London: Butterworths. 1863. For a country of such great commercial intercourse as England, good text-books on the laws of Merchant Shipping are of the first importance. Mr. O'Dowd, who had a hand in the making of the Act of 1862, has now undertaken to edit it. As the result, we have here an interesting and elaborate book. The Act conferred increased juris. diction in salvage cases upon the County Courts, Quarter and Petty Sessions; and in order to make his book more useful to practitioners in these Courts, Mr. O'Dowd has appended a digest of the most important salvage decisions. A better book, of its kind, we have not seen for some time. The author has spared no trouble to make it complete, by an elaborate analysis, an appendix of cases and forms, and also by that requisite of all books-a very fair index. Not only ought it to be in the library of the lawyer, but also in the hands of county and borough magistrates, and men of business. The titlepage is too modest to convey a notion of the scope of the book. The Analysis is, in truth, an accurate treatise on the law of Merchant Shipping. From it (p. 69), we extract the following, on the interesting subject of derelict at sea, as a fair example of Mr. O'Dowd's perspicuous writing:
“The title which is acquired to property by finding is a species of occupation; and it is laid down as a rule of law by the civilians that the mere discovery or sight of the thing is not sufficient to vest in the finder a right of property in the thing found (Pothier, ' Traité de la Proprieté '). His title is acquired by possession, and this must be an actual possession. He cannot take and keep possession by an act of the will oculis et affectu, as he may when the property is transferred by contract, and the possession given by symbolical delivery. To consummate his title, there must be a corporal prehension of the thing. Though it is said, it is established by custom, and that such was the ancient law of the Romans, when two are near together or in company where the thing is found, that the title is acquired in common (Pothier, “Pandects,' xli. 1-8; Heineccius, * Recitationes in Intit.,' 350 ; Vocet ad Pandect.' xli. 1-9). Upon these principles, the discovery of wreck left derelict by three schooners, and the boarding of her from one of them, were sufficient to give them the right of possession (the schooner John Wurts, Olcott's R. 462)."
The Testament of the Law; or, the Truth about the Devolution and
Distribution of Property in Cases of Intestacy; with a Proposal for an Intestacy Act, to include Real as well as Personal Estate ; being a Letter addressed to the Right Honourable John Earl Russell. By Thomas Boyfield Sikes, Solicitor. London: Arthur
Hall & Co. 1862. UNDER this somewhat quaint title, the author has presented a particularly clear and compendious statement of the leading provisions of the law of inheritance (3 & 4 Will. IV. c. 106), and of the several statutes of distribution. The pamphlet is addressed under the form of a letter to Lord Russell, with the avowed object of inducing "the great middle class of England (as the author has it) to insist on the reformation of a law which so intimately affects the domestic happiness of their families." From a preface so impassioned, we were not prepared for an argument so temperate and well sustained. The author writes apparently under a conviction which has grown deeper and deeper with advancing years. Referring to the inefficiency and injustice of the laws now controlling the devolution and distribution of property in cases of intestacy, he urges the necessity of their immediate revision in this strain. “ Such is my anxiety to supply this deficiency, and so indignant am I at the existence of those legal anomalies which do nothing but engender quarrels and lawsuits between the different members of a family, that I cannot be content to remain any longer a silent spectator of their baneful operation.” In the ardour of controversy, Mr. Sikes has once or twice missed the point, and allowed his judgment to be thrown off its balance. Hard words not unfrequently spoil even good arguments, and a writer possessing unquestionable ability with only too much fervour, would do well as soon as possible to change declamatory censure for a more discriminating and temperate antagonism. It is not in good taste to assume that the whole legal profession is banded together in a selfish and unscrupulous conspiracy to oppose wise reforms; nor is there any justification for the bold insinuation that, “when the law is simplified, when the perplexing distinctions in the succession to real and personal estate, which are the source of so much litigation are removed, men of the law know very well that a portion of their occupation is gone." The author is also in error when he confounds simple acquiescence in the present state of things, with some hidden and deeply contrived scheme on the part of lawyers to defraud the public of their rights; and it is silly extravagance of speech to add "that to be mute under such circumstances is to be particeps criminis - to be accomplice and abettor of those who are always conspiring against everything in the shape of legal reform." After so grandiose a preface, the only excuse for noticing the pamphlet itself is the good sense and excellent taste by which it is distinguished. Mr. Sikes has evidently bestowed upon the subject a good deal of sound practical thinking. The canons of descent have been well considered, and compared not only with the familiar genealogical chart in the text-books, but with the habits and wants of the present age. Many of the suggestions thrown out are really worthy of careful reflection. With reference to the distribution of personal estate, these are some of the changes he would recommend : “ Where an intestate dies without wife and issue, and leaving a father and brothers and sisters him surviving, the same objection which was made to a father taking the whole of his intestate son's real estate equally applies to his taking the whole of his personalty, in which, I contend, the brothers and sisters ought to be allowed to participate with their father. Neither is it fair or just that an aged grandfather or grandmother should be excluded by the brothers and sisters of the intestate from participation in the personalty, when they are all in equal degree of kindred to him. The right of representation among collateral kindred should not be confined to the children of brothers and sisters, but should be extended to their issue in infinitum, in the same manner as among the intestate's lineal descendants.” It is also suggested that, in the event of there being no issue or next of kin to a deceased husband dying intestate, the widow should not only be entitled to a moiety of the personalty, but to the whole. “ To give the eldest son the whole of the land,
and also an equal share of the personal estate with his younger brothers and sisters, is so monstrous an act of injustice that such a disproportion of property, I verily believe, is not sanctioned by the law of any other country in the world. What I propose, therefore, is an Intestacy Act, under which the whole of the intestate's property, real and personal, should vest in an administrator, who should be authorised to convert the same into money, and divide the residue among the distributees. Power should be given to the Court of Chancery, in cases where it might be deemed advisable, to prevent the administrator from selling the whole or any portion of such property. With respect to the persons who should be the distributees, the order in which they should succeed, and the proportions of the intestate's property which they should take in every case, it would be desirable in any new enactment (with the above exceptions) to imitate the present statute of distributions.” The whole argument is founded upon the proposition that property, real and personal, should by law descend, and be distributed as much as possible in that course which would have been marked out by the deceased, had he or she disposed of the same by will; and it is only just to the author that this notice should conclude with a cordial acknowledgement of the ability and cogency with which the argument is maintained. Supplement to a Treatise on the Law of Partnership; including its
Application to Joint-stock and other Companies. By Nathaniel Lindley, of the Middle Temple, Esq., Barrister-at-Law. London:
William Maxwell, 32 Bell Yard, Lincoln's Inn. 1863. Two years ago, Mr. Lindley's Treatise on the Law of Partnership was welcomed by the profession as a valuable and elaborate addition to the legal text-books of this country.
Since that time, two important statutes — the Bankruptcy Act, 1861, and the Companies Act,
1862 — have been passed, and many leading decisions have been pronounced. The completeness of the original work has thus been broken up by the legislation of the last two years, and it became necessary to adapt it to the present state of the law. There were two ways in which this might have been done. A new edition of the whole work might have been issued, incorporating the new Acts and decisions throughout the two volumes, as they originally stood. This arrangement would have entailed a double expense upon the purchasers of the first edition, inasmuch as they would have been compelled to buy over again a great bulk of matter already in their possession. Mr. Lindley has wisely adopted the more economical plan of publishing a supplemental volume, containing everything that is new on the subject, indexed and arranged for reference to the original work. It will be remembered that the first treatise was divided into four parts. The first related to the creation and dissolution of partnerships. The second treated of the rights and obligations of partnerships and companies, as regards non-members. The third, of rights and obligations, as between the members themselves ; and the fourth, of the dissolution and winding-up of partnerships and
companies. The present Supplement is divided into two parts. “ The first part consists of notes, showing what alterations require to be made in the text, irrespectively of the Companies Act, 1862. These notes are placed in the order of the pages of the original treatise; and by turning from any page in the present Supplement, the alterations and additions which ought to be made will at once be seen. The second part is devoted exclusively to the Companies Act, 1862, and consists of four chapters, corresponding with, and intended to be supplementary to, the four books, into which the original treatise is divided." The notes throughout are written with the accuracy and clearness which were so conspicuous in the first edition. All the leading recent decisions are collected and commented upon, so that the reader will find the law as it now stands with regard to almost every question connected with partnership. The important case of Cox v. Hickman (5 Ho. Lo. Ca. 268) had not gone up to the House of Lords when the original work was issued. The present Supplement follows up the case to the highest Court of Appeal, and contains a clear analysis of their Lordships' judgments. Nor has the author given too much space to the consideration of that case, seeing that by it the law, as laid down in Waugh v. Carver, is modified in a most material respect. The House of Lords have now decided, “that whether persons who share the profits of a business incur the liabilities of partners or not depends upon whether that business is carried on by themselves personally or by others as their agents.” Thus a great branch of partnership law has been substantially placed on a new footing, by making agency the true test of partnership, and not the agreement to share profits to an indefinite extent. Studies in Roman Law, with comparative Views of the Laws of
France, England, and Scotland. By Lord Mackenzie, one of the Judges of the Court of Session in Scotland. Edinburgh and
London : Blackwood & Sons. Tuis is, in many respects, one of the most interesting works that the legal press has issued in our time. On perusal it will be found to be something more than its modest and yet attractive title would indicate. Although we do not value so highly as Lord Mackenzie appears to do some of the authorities cited, we regard the book as an important contribution to the learning of comparative jurisprudence. It, in fact, forms a lucid exposition of the principles and rules of law, municipal and international, which prevail in and are recognized by the countries referred to, with a historical summary of the Roman Law, by way of introduction ; and the author is one of Her Majesty's Judges, actually on the Bench, and in the daily discharge of his judicial duties. Its claims to attention and authority, therefore, are of a peculiar nature, and very different from those accorded to other law books, however able and well written, while at the same time the responsibility attaching to its statements is proportionably great.