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it vanishes into thin air, and the person who is suing it finds himself in as disconcerting a position as Menelaus when the Goddess of Love snatched Paris in a cloud from his avenging arm. This was the litigant's position in Whiteley Exerciser, Lim. v. Gamage ('98, 2 Ch. 405, 67 L. J. Ch. 560). He wanted an order for taxation of costs against the company whose action had been dismissed, and he took out a summons for that purpose before the company's three months of suspended animation under s. 143 of the Companies Act, 1862, had expired, but when the day of hearing arrived the company was dissolved. What, by the way, becomes of a company so dissolved is

. a metaphysical nicety well fitted to have exercised the subtlety of the schoolmen. Its soul cannot be extinct because the company can be recalled to earth and reinstated on the register of companies on petition under the Companies Act, 1880. It must, presumably, be hovering in nubibus or latent in gremio legis. North J., however, without 'entangling himself in these cobwebs of the schools,' held that he had jurisdiction to make the order against the company, though defunct, inasmuch as it was in esse when the summons was taken out. A defendant company which winds up voluntarily pendente lite is not deserving of much sympathy, as it is evidently evading justice by a sort of felo de se. But in the meanwhile what of any assets ? Are they bona vacantia belonging to the Crown, or do they go to the Board of Trade under the Companies Liquidation Account?


Cowen v. Truefitt, '98, 2 Ch. 551, 67 L. J. Ch. 695, is a curious example of 'falsa demonstratio. A lease of rooms on the second floors of two houses numbered 13 and 14 was expressed to give the lessee free ingress and egress through the staircase and passages of no. 13. In fact no. 14 had a practicable staircase, no. 13 had not (a lift having been substituted for a former staircase), and there was no access by any other staircase. The plaintiff claimed the use of the staircase of no. 14; the defendant denied that the demise could be so construed, and claimed rectification in his own sense. Romer J. held, though not without doubt, that the description, having regard to the facts, was apt and sufficient for the staircase of no. 14, and that-although there could be no question of reading 14 for 13the words of no. 13' might be rejected as an erroneous addition, leaving the staircase of no. 14 as the only object to which the description could apply.

Legislating by delegating a judicial discretion at large is a very convenient course, a tribute to the wisdom of the Bench, but something of an embarrassing compliment. The Judicial Trustees Act, 1896, is an instance. It empowers the Court on application by å settlor, trustee, or beneficiary to appoint at discretion a judicial trustee, but it gives no rules to guide the discretion or indicate when such an appointment should be made. By degrees, no doubt, the experience of the Chancery judges will formulate the classes of cases in which the Court will exercise the power, but at present that grave tribunal may be said to be at sea (In re Ratcliff, '98, 2 Ch. 352,67 L. J. Ch. 562). Appointment of judicial factors in Scotland offers the nearest analogy. One element in the case is the power under the Act to allow remuneration to the judicial trustee. This—tardy act of justice to trustees though it is—is extremely likely to prove a fruitful source of discord. The remainderman will be quite agreeable to having a judicial trustee appointed to protect the trust estate, provided he is paid out of income, and the tenant for life will be equally agreeable if the trustee is paid out of capital, but each may think the blessing of a judicial trustee too dear at the price of a salary of his paying. Even on the terms of the judicial trustee being paid out of capital, Kekewich J. in the above case refused to appoint, and thought an ordinary trustee would do, and it is really difficult to see when an ordinary trustee will not do.

The rapid growth of local and municipal government has created a world of multifarious duties and energetic authorities, and the least that can be done for the public-spirited persons who serve on local boards and sanitary committees is to save them harmless from the vexatious litigation which attends the exercise of their reforming or administrative activities. This the legislature has recognized in passing the Public Authorities Protection Act, 1893, and by it giving public authorities vexed with unsuccessful actions a complete indemnity in the shape of solicitor and client costs. The policy is clearly evinced in the preamble of the Act, and it would have been very unfortunate if it had been necessary to give the word 'action such a narrow interpretation as would have excluded from its beneficial purview actions for an injunction (Fielding (or Fielden) v. Morley Corporation, '99, 1 Ch. 1, 67 L. J. Ch. 611): indeed it would have gone far to neutralize the Act altogether, because this is the shape which proceedings against public authorities largely take on the principle that prevention is better than cure. It is matter for thankfulness that fusion is gradually eradicating the dual terminology of common law and equity.

Mr. R. Floyd Clarke writes from New York to complain that our review of his book · The Science of Law-Making' (L. Q. R. xiv.

317) does not correctly represent his views and statements in some particulars. These, in Mr. Clarke's own words, are as follows :

'I am accused of ignoring the Indian Penal Code, and of not saying anything about the Bills of Exchange Act. I am also told that I could have strengthened my case by referring to the political reasons leading Germany, France, &c. to codify.

'If your Reviewer had turned to pages 324 and 360 et seq. he would have found a discussion of the truth that the respective expediency of codifying Criminal law and Civil law rests upon different considerations, and why this is so. Had he turned to pages 35, 413, 414, 424, 426, 439 he would have found a discussion showing clearly that the author is in accord with the expression in statutory form of rules about days of grace and protest (conventional, not ethical rules), and the reasons why he is so in accord. Had he referred to page 449 he would have found the English Bills of Exchange, and Partnership, Acts referred to, fault being found with the fact that their construction clauses are not worded strongly enough to give the courts the wide discretion contended for-the expediency of codifying the subject matter involved being left to be solved by the wider generalization that the propriety of expressing rules of law in statute or case depends upon the class of conduct involved in the rule. And the fact of the political reasons leading to codification in Germany, France, India, &c., is pointed out at pages 264, 265.

*Your Reviewer also says that “two more than doubtful assumptions run ” through the book. One that Roman law has an inherent fitness for codification as contrasted with the English law. This assumption is not in the book reviewed. ... The other assumption I am said to make is that modern advocates of codification expect Codes to make case law superfluous. In view of the fact that at pages 298 and 340 I have cited the divergent views of codifiers on this point, giving their names, it would seem that the period [sic, apparently a slip of the type-writer) of their views is sufficiently referred to.'

The letter contains other argumentative and discursive matter which, in accordance with our general rule announced in a very early number of this REVIEW, we are unable to publish.

It seems convenient to repeat in a conspicuous place that it is not desirable to send MS. on approval without previous communication with the Editor, except in very special circumstances ; and that the Editor, except as aforesaid, cannot be in any way answerable for MSS. so sent.



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THE Court of Cassation is an institution which has no parallel

among even the numerous and varied jurisdictions known to Anglo-Saxon communities. It is not, properly speaking, as Englishmen usually suppose, an appeal court, though derived from what was probably in its origin a Court of revision, which is practically the same thing. In early times the French king in council, as the supreme power in the State and fountain-head of its justice, seems to have attributed to himself a right to revise all sentences delivered in his name. Abuse of the costly procedure such revision entailed led later on to different royal ordinances defining its limits and character, and ultimately to the restriction of the council's jurisdiction to violations of the king's coûtumes, ordinances, edicts, and declarations, i. e. to questions of law only, which is the real character of what are known on the continent as powers of Cassation.'

In 1738 all that was useful in the various royal edicts and ordinances on the subject was consolidated into a single Règlement, and upon this Règlement were based the rules of the (as it was called in 1790) Tribunal de Cassation. After some vicissitudes connected with the varying ideas of the revolutionary period, the Tribunal became in 1800 the Cour de Cassation (29 Ventôse, year VIII).

The Court of Cassation under this enactment practically received powers to deal with points of law only, the idea of the legislature being that while the facts of each case were properly dealt with by the local Court of Appeal, points of interpretation of the law could not be left finally to a local jurisdiction without endangering that unity of legislation which it was the main object of the reformers of the period to bring about. Hence the Court of Cassation was intended to unify the interpretation of the unified law. Its powers are thus limited to the four following grounds of intervention :

Ultra vires on the part of the lower Courts;
Express violation of the Law ;
Violation of the forms of Procedure; and
Contrary judgments delivered by different courts of last

instance. Though it has no power as a Court of Cassation to deal with the facts of a case, it nevertheless fixes the new district Court of Appeal



for re-trial and it interprets the law which has been misinterpreted by the Court of Appeal whose judgment it has quashed.

It was only in 1808, when the Code of Criminal Procedure was drawn up, that the Court's powers not of cassation but of revision were exhaustively dealt with. They were practically unlimited under the old Règlement. An intermediate decree of 1793 had restricted them unduly. The Code of 1808 adopted a middle course, taking into consideration on the one hand the possibilities of error, and on the other the evils of any hierarchy of jurisdictions in criminal cases. The provisions of the Code have been recast and modified by a recent Act (June 8, 1895)". As the law now stands

a there are four cases in which revision is permitted. We need not go into all of them in the text of this article, which is mainly intended to help those interested in the Dreyfus case to a better understanding of the present procedure. The last of the four, which was added by the new Act, and which is the one the Dreyfus revision proceedings rest upon, provides that an application for revision is permissible:

• When after a condemnation a fact shall come to light or be revealed, or when documents the existence of which was unknown at the time of the first trial are presented, such documents tending to establish the innocence of the condemned person.'

To prevent any abuse of revision the law has vested in the Minister of Justice exclusively the right of moving the Court 2.

Once, however, moved, the Court has the widest possible powers of investigation and may take all the measures it may judge necessary by rogatory commissions, enquêtes ab initio, confrontations, identifications, interrogatories, and any other calculated to bring the truth to light.'

Two immediate courses are open to the Court:

1. To declare the case non-receivable, that is to say, dismiss it as having already been properly tried ; or

2. To declare it receivable, that is to declare it not en état, and as having been judged on insufficient evidence.

If it decides that the case is not en état, it delivers a preliminary judgment in this sense, of which the following in the Dreyfus case is a model:

Considering the letter of the Minister of Justice, dated September 27, 1898;

Considering the requisition of the public procurator of the 1 For the provisions of this new Act, see end of article.

? I need not point out to professional readers a distinction which some persons seem not to understand, namely, that between powers of a Court of ievision and the prerogative of pardon vested in the President of the Republic. The latter presupposes the facts to be established, whereas the ascertainment of the facts is the very object of the former.



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