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REVIEWS AND NOTICES.
(Short notices do not necessarily exclude fuller review hereafter.]
A Preliminary Treatise on Evidence at the Common Law. By JAMES
BRADLEY THAYER. London: Sweet & Maxwell, Lim. 1898.
8vo. xxxvi and 636 pp. (218.) The introductory historical chapters of Prof. Thayer's book, which were issued in advance, have been already noticed (L.Q.R. xii. 208). We now have the volume complete. It goes on to deal with the relations of questions of law to questions of fact in modern jury trials; the difference between rules of evidence, which are matter of law, and rules of logic or inserence, which are matter of common sense, and assumed by the law to be known and applied ; the theory of judicial notice; the true meaning and office of presumptions; the burden of proof ; the rules about 'parol evidence' and • best evidence'; and— partly in the last chapter, partly in various incidental remarks—the distinction between rules of evidence properly so called, and other rules often but wrongly so called, which have become, if they were not always, rules of substantive law. A book which has come to our hands rather late in the quarter, and goes to the root of the subject more thoroughly, we venture to say, than any other text-book in existence, cannot receive full justice here. We can only call attention to some of Prof. Thayer's leading points. Most important of all, perhaps, is his position (p. 267) that the law of evidence is really, and necessarily, negative. It does not undertake to teach us logic, or to tell us what kinds of fact tend to establish the existence of other facts. What it really does is to set bounds to the classes of more or less probative facts which may be brought before a jury (we say a jury because, as Prof. Thayer shows, the whole common law of evidence has been moulded by the need of directing juries), to the persons who may bear witness, and to the ways in which certain facts may be proved. Not long ago we had occasion to say something of this kind in a notice of Sir W. Markby's edition of the Indian Evidence Act, of which Act the positive or logical part is in our opinion a splendid mistake; and we are very glad to find our view confirmed by Prof. Thayer's full and mature consideration of the subject, which of course was prior in fact if not in actual publication to our own.
Then, following the same line of thought, Prof. Thayer excellently says of presumptions that they are not in themselves either argument or evidence, although for the time being they accomplish the result of both' (p. 314). As he adds in a note, the law has no mandamus to the logical faculty; it orders nobody to draw inferences'—though it can order the Court to act as if a certain inference had been drawn. In truth a presumption is not a rule of evidence or proof, but a rule for dispensing, absolutely or conditionally, with proof of some matter in issue or relevant to the issue. Some presumptions grew into positive rules of law, which have now to do with the law of evidence just so much as any other rules of law; that is to
say, the facts which the rule declares to have a certain legal effect must be proved or admitted before the rule becomes operative in a particular case. Statute law, when it made a certain length of adverse possession amount to title, only set the final stamp on the transforming process of the common law. The rule as it now stands is plainly not a rule of evidence, but a substantive and most important rule in the law of property.
The chapters on Judicial Evidence and the Burden of Proof will be found to throw light on much ambiguous terminology and many perplexed questions. Law reformers will be, or ought to be, interested in Prof. Thayer's final conclusion – the conclusion not of an a priori theorist in legislation, but of a patient and thorough student of the actual law and its history—that the rules of evidence might well be somewhat largely simplified.
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. London:
Stevens & Sons, Lim. 1898. 8vo. xliii and 457 pp. (108. 6d.) The scheme of this book is to give a series of short notes, not in any way exhaustive of the subjects dealt with, but still sufficient to put the reader on the track of what he requires. The notes being in alphabetical order, and well arranged, will render the book of considerable value to the hurried practitioner.
Precedents of requisitions follow after each note, and though they will be found very suggestive, they should not, by reason of their position, frighten the reader into thinking that the title before him is a hopelessly bad one.
As a whole the book is excellent, and should go far towards superseding several previous efforts in the same direction: the cases have been carefully selected.
When another edition is issued, as we hope it will be, the authors will no doubt take the opportunity of reconsidering several of their opinions as now expressed; for instance, the note at p. 52 with regard to the necessity of
tenant for life concurring in a sale does not seem very clear. If there is a strict settlement then, unless the sale is carried out under an overriding power or in virtue of an estate paramount to the settlement, clearly the person having the powers of a tenant for life must be a party.
Again, requisition 9 on p. 75, with reference to a grant de novo as copyholds of part of the waste, seems to ignore the Copyhold Act, 1894, S. 81, which renders the consent of the Board of Agriculture requisite to effect
such a grant:
Then with regard to the covenant implied by the word 'demise, it is curious that the authors have not (p. 79) referred to Baynes d Co. v. Lloyd de Sons, '95, 1 Q. B. 820, 2 Q. B. 610, which seems throw doubt on whether the covenant is an absolute one. On the same page it would probably save misconception, if attention were called to the necessity for naming the assigns of a covenantor, where it is intended to bind the land in equity with a restriction in the hands of assigns with notice.
Several authors have thought that an estate tail is within the Land Transfer Act, 1897, s. 1, and the present authors (p. 165) favour this view, which, if correct, will throw matters into hopeless and unnecessary confusion.
Though in a subsequent edition the authors will, no doubt, aim at, if possible, still greater accuracy, yet it is to be hoped that this will be secured without any appreciable increase in length. The late Mr. Dart, it is known,
intended that his work on Vendors and Purchasers should be a small book of reference; no doubt its present size testifies to its worth, but it shows the tendency of valuable books to outgrow their original purpose.
B. L. C.
A Practical Treatise on the Law of Trusts. By the late Thomas Lewin.
Tenth Edition. By Cecil C. M. DÁLE. London: Sweet &
Maxwell, Lim. 1898. La. 8vo. cxv and 1497 pp. (£2 28.) ) The last edition of this most useful text-book came out in 1891, and a new edition was much wanted after an interval of seven years. The Trustee Act, 1893, has involved a considerable re-arrangement of the text, and a new chapter has also been added dealing with the Judicial Trustee Act, 1896, and when we consider the ever-flowing stream of case law we are not surprised to find that the book has expanded by some 70 pages since 1891. No apology or regret for this extension was needed, since the book, in point of actual bulk, has been considerably diminished by an improvement in the fineness of the paper.
The editor in this, as in some previous editions, has distinguished the matter introduced by past and present editors from the work of the author. The book, however, would probably be improved and certainly reduced in size if this distinction were allowed to lapse. To re-write a section by the light of subsequent decisions must be shorter, and in every way more satisfactory, than to insert the effect of those decisions in brackets as qualifications or amendments of the original text.
Another considerable saving of space might be effected, with great advantage to the book itself, by curtailing the unnecessary multiplication of footnote references to cases of little practical utility, which have been covered or superseded by later authorities.
The book, however, well maintains its position as the standard book on the most important head of equitable jurisdiction, and though many useful shorter works on this subject have been written for students, the fact remains that an equity student who has mastered the first part (220 pages) of Lewin will rest his subsequent knowledge of equity upon a foundation more comprehensive and complete than he could obtain elsewhere with a corresponding expenditure of labour.
Company Law. By Francis BEAUFORT PALMER. Second Edition.
London: Stevens & Sons, Lim. 1898. La. 8vo. xxxvui and
504 pp. (128. 6d.) In the Law QUARTERLY Review for April, 1898 (vol. xiv, p. 210) there appeared notice of the first edition of this book, which was published early in the year 1898. We were then able to speak in terms of the highest praise of the volume which reproduced the lectures recently given by Mr. Palmer at the request of the Council of Legal Education. Our notice ended with the following sentence: “The book is, we feel sure, predestined to popularity.' Our confidence has been justified by the appearance, within a period considerably less than a year, of a second edition, which will probably be at least as great a success as the first issue. In the meantime Mr. Palmer has done something towards making an important addition to the law of companies. He sets out at p. 378 of his new edition “The Companies Act,' 1898, which received the Royal Assent on August 2, 1898. In notes on the Act—which will be found to be of value to those who have to take advantage of it-Mr. Palmer tells us that the Bill was drafted by him at the request of the Incorporated Law Society, to whom the credit of obtaining this amendment of the law is due.' The drafting of the Bill could not have been placed in better hands. As Mr. Palmer says, it was the outcome of the decision of the Court of Appeal in Re Kharaskhoma Exploring Syndicate, '97, 2 Ch. 451. That case only followed many decisions on the 25th sect. of the Companies Act, 1867, which caused great hardships to those who, although guilty of no fraud, had been improperly advised as to what the section meant. An amendment of the law, or rather a measure giving persons the means of obtaining relief from the rigour of the section, could only be properly drafted by one who was thoroughly acquainted with the case law on the section; and one would not have been surprised if the Bill had been drawn with a multitu«le of clauses aimed at particular cases of hardship. Instead of this the Act is a short one, framed in such general terms as to enable the Court to give relief in every case where it is just and equitable' to do so. The frequency with which the Courts have already exercised their new statutory jurisdiction shows how much appreciation has been given to what the newspapers have justly called “Beaufort Palmer's Acti'
A Treatise on the Law and practice relating to Letters Patent for Inventions, with an Appendix of Statutes, 8c. By
By ROBERT Frost, B.Sc. (Lond.). Second Edition. London: Stevens &
Haynes. 1898. 8vo. lv and 919 pp. (308.) The new edition of Mr. Frost's treatise is a work of considerable merit. Its chapters have been subjected to a thorough revision. The admission of a large amount of additional matter has been skilfully effected, without materially detracting from the portability of the volume. The reproduction in a slightly reduced type of the more important decisions of the Courts, practically in extenso, also calls for favourable notice.
As a manual of practice at the Patent Office the work leaves something to be desired. We were startled to find that the Patent Rules, 1892 (first and second set), revising amongst other things the scale of renewal fees, are entirely omitted; while the edition of the Rules of 1890 is printed without the necessary deletion of Rules 45-47. We might easily multiply minor instances of neglect and inaccuracy, but we prefer to regard the work from the standpoint of the author's preface, viz. as an exposition of existing patent law written mainly for the use of the profession.
The very questionable statements which usher in the opening chapter of the work indicate that Mr. Frost has elected to write his history backwards. Mr. Frost, for instance, begins with the Statute of Monopolies and then proceeds to harmonize the modern construction of the statute, if such a term be permissible, with the common law decisions prior to 1623. Thus on page 25 we find the following statement. The common law authorities, respecting what may be the subject of a valid patent, decided (sic) before the passing of 21 Jac. I. c. 3 are not very numerous, but they agree perfectly with the construction which the modern law has placed upon the sixth section of that Act. He then proceeds to cite (a) the Case of Monopolies, which he distinguishes in the table of cases from that of Darcy v. Allin, (b) the Clothworkers of Ipswich case, A. D. 1615, which he misquotes here and again on page 93, winding up with Edgebury v. Steph'n, A. D. 1691, and two authorities subsequent to 1623. This is not merely slipshod
compilation. The perfect agreement' is clearly obtained by the suppression of cases reciteil in Darcy v. Allin, which cases are decisions adverse to the validity of patents of aidition; the law respecting which was finally settled in 1776 by Morris v. Bransom. These cases, whether overruled or not, are important as illustrating the law of which the statute is professedly the exponent. Again, on page 406, Mr. Frost asserts that there is nothing in the spirit of the patent law which prohibits the Sovereign from prolonging the duration of a Monopoly. But the practice of prolongation by the Crown was determined by the Cloth workers of Ipswich case, which laid down that
when a patent is expired the King cannot make a new grant thereof; and as a matter of history, from 1623 to the date of Lord Brougham's Act extension was obtained only upon application to Parliament. Nor do we find ourselves in closer agreement with Mr. Frost when he lays it down that
the disclosure of the invention is one of the first principles of patent law.' There is, however, abundant authority for the statement of Webster (P. C. 1, pref.) that the introduction of the invention is the real consideration upon which exclusive privileges are founded.' The doctrine of disclosure cannot have preceded the practice of making the filing of the specification obligatory upon the grantee which took place circa 1750 and was not ' a plan devised by the Attorney-General in the reign of Anne' (p. 152).
In two instances we are of opinion that Mr. Frost, relying upon this doctrine of disclosure, has failed to realize the fundamental limitations to which the grant of letters patent is subject. On page 120 et seq. he suggests that a valid patent may be obtained by the true and first inventor (a) for an art which has been secretly (i. e. without disclosure) and profitably used by the inventor prior to the date of the patent; and (b) for the manufacture of an article imported or sold within the realm prior to the patent, but which does not on its face disclose the process of its manufacture. But in case (a) the common law rights of the workmen are abridged by such a grant, which is made in respect of a manufacture which is not newly introduced at the date of the grant. Here Mr. Frost should remember that the term of letters patent was fixed in connexion with the term for which the workman was bound to serve the inventor. And in case (6) if the article which forms the subject of the grant is still imported, sold and used within the realm, the Crown cannot grant the whole profit of the manufacture to the inventor without prejudicing the rights of the merchant, retailer or user within the realm. Before the form of grant was stereotyped its terms could be drawn to meet the exigencies of each case—and as a matter of history grants of this nature are of frequent occurrence in the patent rolls of the sixteenth and seventeenth centuries. These, however, are outlying cases which do not materially affect the practical value of the work for the purposes of reference.
The question of the logical arrangement and subdivision of the chapters dealing with the substuntive law of patents is one which cannot be attempted within the limits of a review. We agree with Mr. Frost that utility is not required by the statute. It is obvious that all manufactures which are profitably worked—a limitation which excepts those in a purely experimental stage-are useful, and as the statute refers to the practice and not to the disclosure of a manufacture, a declaration of the law on the subject was not requisite at that period. We regard Mr. Frost's use of the term 'abstract utility' as a misnomer. The question of kinds of utilityqualitative estimation -- if we may coin the phrase, has, we believe, been held to be irrelevant, and in the quantitative estimation of utility, we are told that the legal meaning of the term useful is very slight utility indeed'