« ForrigeFortsett »
tion. Subsequently it became incorporated in New Jersey. Owing to a New Jersey decision unfavorable to the corporation, it was voluntarily dissolved. Some of the members seized property of the society, claiming that the voluntary association still existed. The others seek to recover the property. Held, that they may recover it. Schriner v. Sachs, 253 Pa. 611, 98 Atl. 724.
After there had been the same organization, incorporation, and dissolution as in the above case, some of the members, as an independent body, were exercising the powers of the society. The others, claiming the existence of the voluntary association, seek to enjoin them. Held, that an injunction will not issue. Doan v. Jones, 99 Atl. 192 (N. J.).
If the incorporation of an existing association does not destroy the association but merely adds to it a corporate form, then the effect of the dissolution of such a corporation would in every case be no more than a removal of the form and would leave the original association intact. Such is the theory of the Pennsylvania court. But, by statute, dissolution ordinarily means a liquidation, and a distribution of the property. See 5 THOMPSON, CORPORATIONS, $ 6465.
5 And it is hard to justify a flat exception to this procedure as to all corporations formed from voluntary associations. Even if the statute were no obstacle, there are practical difficulties in this Pennsylvania view. For example: A majority of stockholders may ordinarily dissolve a corporation. See 5 THOMPSON, CORPORATIONS, $ 6500. But, in the absence of regulations to the contrary, it requires unanimous consent to dissolve an association. Hill v. Rauban Arre, 200 Mass. 438, 86 N. E. 924. Cf. Polar Star Lodge v. Polar Star Lodge, 16 La. Ann. 53, 76. So, where an association becomes incorporated, if the association still exist, there could be no complete termination of the unit without unanimous consent of the members. The better view, it is submitted, is that the incorporation completely ends the association. What few decisions there are, seem to hold this way. See National Organization v. Zuraw, 89 Conn. 616, 619, 94 Atl. 976, 977; Red Polled Cattle Club v. Red Polled Catile Club, 108 Ia. 105, 109, 78 N. W. 803, 805. Decisions also hold that unanimous consent is as necessary to incorporate the association as to dissolve it. Mason v. Finch, 28 Mich. 282. See Koprucke v. Mojcrechowski, 130 N. Y. Supp. 736, 739; WRIGHTINGTON, UNINCORPORATED ASSOCIATIONS, 306. These tend to show that the significance of dissolution of the association and incorporation of it are the same, namely, to entirely end the association. It would follow that the end of the corporation does not in itself mean the revival of the association. However, there is no reason why all the members might not immediately on the dissolution of the corporation form an association to take over the business of the corporation. Nor does there seem to be any reason why the purpose of the dissolution might not show this act itself to be the formation of a new association.
BOOK REVIEWS INTERNATIONAL CASES, ARBITRATIONS, AND INCIDENTS. By Ellery C. Stowell
and Henry F. Munro. Boston: Houghton Mifflin Company. 1916. Two Volumes. Volume I, Peace, pp. xxxvi, 496. Volume II, War and Neu
trality. pp. xvii, 662. In these volumes the authors collect and classify a large number of incidents bearing upon the practice of nations regarding international rights and duties. The incidents are sometimes narrated in the terms of newspaper accounts of official documents; but to a large extent the authors have been compelled to resort to paraphrase and condensation. The result is a mass of documentary or semi-documentary matter extremely useful as a basis for classroom discussion. Now and then there is expression of the opinions of the authors; but this
happens so seldom that the utility of the volumes in original investigation is not appreciably diminished.
The title is somewhat misleading, as it may cause the reader to expect judicial decisions as the chief feature, whereas the judicial decisions given are a rather small fraction.
The variety and interest of the contents will be best indicated by mentioning some of the topics.
In the volume on Peace there are about one hundred and twenty-five items. Among these are the arrest of the ambassador of Peter the Great in London in 1708 (p. 1), the meddling of the British minister with American politics in 1888 (p. 10), the Koszta incident between Austria and the United States in 1853 (pp. 51, 298), the Dogger Bank incident of 1904 (p. 98), the collective intervention because of the Boxer uprising in China in 1900 (p. 112), the return of the Chinese indemnity by the United States in 1907 (p. 117), the Caroline affair of 1837 (p. 121), the Schnaebele incident of 1887 (p. 225), the granting of asylum by the American legation in Chile in 1891 (p. 243), the lynching of Italians in New Orleans in 1891 (p. 264), and the Cutting incident with Mexico in 1886 (p. 386); and there are also summaries of cases before the so-called permanent court of arbitration at The Hague and other arbitral tribunals, and of decisions by courts of several countries.
The volume on War and Neutrality covers almost two hundred and fifty items; and more than one hundred of these relate to the War of 1914. Here one finds, among many other things, the outbreak of war with Spain in 1898 (p. 25), the commencement of hostilities in the Russo-Japanese War of 1904 (p. 26), the escape of German officers interned on the Kronprinz Wilhelm in 1915 (p. 49), the terms of Johnson's surrender to Sherman in 1865 (p. 58), abuse of the white flag in 1914 (p. 67), the capture of Major André in 1780 (p. 78), the use of asphyxiating gases in 1915 (p. 117), treatment of civilians in Belgium in 1914 (p. 119), the execution of Captain Fryatt in 1916 (p. 124), Lincoln's letter on confiscation in 1861 (p. 141), the exequaturs of consuls in Belgium in 1914 (p. 147), the protest against the German modifications of Belgian laws in 1915 (p. 150), the Cuban concentrados of 1897 (p. 169), the destruction of Rheims cathedral in 1914 (p. 184), the German memorial regarding the employment of colored troops in 1915 (p. 187), the execution of Miss Cavell in 1915 (p. 196), the treatment of British prisoners in Germany in 1915 (p. 209), Belgian relief in 1914 (p. 212), the North Sea Mine Field in 1914 (p. 214), the Baralong incident of 1915 (p. 218), President Wilson's reply to the Belgian Commission in 1914 (p. 223), dum-dum bullets in 1914 (p. 227), the segregation of submarine prisoners in 1915 (p. 238), proclamations posted by the Germans in Belgium in 1914 (p. 242), the recognition of Confederate belligerency in 1861 (pp. 247, 260), coinage of money for a belligerent country in 1898 (p. 267), passage of troops across American territory in 1915 (p. 268), the sale of United States ordnance in 1870 (p. 269), German comments on American neutrality in 1915 (p. 271), the request for the recall of Ambassador Dumba in 1915 (p. 286), the treatment of wireless messages by a neutral government in 1915 (p. 289), the coaling of German warships from American ports in 1914 (pp. 290, 311), the treatment of armed merchantmen in American ports in 1916 (p. 315), the negotiating of war loans in a neutral country in 1915 (p. 321), the Austrian protest against the sale of munitions by neutral individuals in 1915 (p. 326), the Alabama Claims Arbitration of 1872 (p. 336), the Trent affair of 1861 (p. 458), war zones in 1915 (p. 485), the Declaration of London of 1909 (p. 492), the Knight Commander incident of 1904 (p. 513), the destruction of the William P. Frye in 1915 (p. 517), the attack on the Petrolite in 1915 (p. 551), the Wilhelmina incident of 1915 (p. 559), the Lusitania incident of 1915 (p. 571), and the blacklisting of American merchants in 1916 (p. 599); and there are notes of decisions by prize courts.
LORD STOWELL: His LIFE AND THE DEVELOPMENT OF ENGLISH PRIZE LAW
By Edward Stanley Roscoe. Boston and New York: Houghton Mifflin
Company. 1916. pp. X, 116. The present is a time singularly appropriate for the appearance of a study of the life and work of William Scott, Lord Stowell, who, as sole judge of the High Court of Admiralty throughout the period of the Napoleonic wars, shaped, integrated, and to a large extent created the common law of prize. It is indeed, only in the last three years that his name has emerged from the shadow so long cast by his brother Eldon, the Lord Chancellor. And it is fortunate that this book should be by so great an authority on English prize law and a writer of such charm as Mr. Roscoe.
Lord Stowell's life is interesting, though not especially eventful. He was, curiously enough, an esteemed and appreciated member of the famous Johnson circle, and, with Reynolds and Sir John Hawkins, was one of Johnson's executors. His eighteen years at Oxford probably afford the explanation of Stowell's intimacy and sympathy with such men as Reynolds, Boswell, Burke, and Sheridan. And these Oxford years had also, as Mr. Roscoe points out, a permanent influence upon Stowell's legal work: “no one quite like him ever, in modern times, occupied a high judicial position.
The description of Doctors' Commons, where Stowell dwelt in company with the High Court of Admiralty and all its practitioners, is of considerable interest. So also is the history of the British prize court. Regretfully we learn that, with the opening in recent years of the admiralty courts to general advocates, the old title of proctor has fallen into disuse, so that one may no longer proclaim himself, with Benedict, "attorney at law, counsellor in equity, proctor in admiralty.”
Although contemporary opinion based what scant claims to fame he was allowed upon his ecclesiastical judgments, it is Lord Stowell's prize cases that constitute his great work. This is partially due, of course, to his exceptional opportunities to develop prize law. When Stowell went upon the bench, in October, 1798, there were already arising the first of the prize cases that in the next few years were to deluge and perplex the courts of Great Britain and of the United States. And indeed it is remarkable how many of his famous cases were decided by Stowell in the first few months of his judicial career.' When he went upon the bench there existed no reports of prize cases, and the recollections of the judges and advocates, which aided a common-law court, were here largely lacking because of the long intervals of peace in which there were neither prize courts nor prize causes. So that text writers were largely relied on, and Grotius and Bynkershoek were of equal authority in British courts of prize and in French. This was now changed; with Lord Stowell's first decisions Christopher Robinson began his volumes of reports. Thus began the separation of English prize law from that of the Continent – a process which culminated last year in the Zamora dictum.
Of this nationalizing process which Lord Stowell's decisions inaugurated Mr. Roscoe fully approves. It is of course true that English prize law is thus harmonized with the rest of English municipal law a result which may be scientifically pleasing to an English lawyer, but which can hardly be so pleasing to the aliens who alone can appear as claimants in the majority of prize cases. When once one admits, as Mr. Roscoe does (p. 85), that many of the decisions of the English prize court are “legally sound but indefensible from the point of view of commercial equity,” it is obvious that the English court is following past decisions of its own in preference to a conflicting general law, whether of the sea or of maritime nations. It would seem that England has made her
· For an interesting illustration of this, see the cases cited in 30 Harv. L. Rev. 497, n. 2.
prize law conform to her common law at the expense of the harmony of international law. Mr. Roscoe recognizes this, to some extent at least, and offers the following truly British solution: “An assimilation of the prize law of other European countries to that of Great Britain can in the future only be obtained by the international recognition, as expressions of the law of nations, of particular reasoned British precedents. And this solution, as he justly says, can scarcely be regarded as probable.”
The chapters on “The Stowell Case Law and the Declaration of London," and on “The Stowell Case in the Great War,” are valuable. The author regards the Declaration of London with much hostility, though conceding that it may be of some value to countries which have not the English case law of prize. And the existence of the English case law causes the author also to declare: “It is clear that an international Court of Appeal for prize cases is outside the range of possibility” (p. 92). The appendices are well arranged and of value.
The occasional rather naïve outcroppings of patriotism do not affect the value of the volume or destroy its charm. It is a book which should interest all lawyers and many laymen at this time.
CASES IN QUASI CONTRACT, SELECTED FROM DECISIONS OF ENGLISH AND AMERI
CAN Courts. By Edward S. Thurston. St. Paul: West Publishing Com
pany. 1916. pp. xv, 622. This is an excellent case book. In fact the best on the subject now existing. Its six chapters, covering the conventional topics hitherto dealt with in textbooks and case books, are: Nature of Quasi Contract, 50 pages; Benefits Conferred by Mistake, 182 pages; Benefits Conferred under Contract which has been Partially Preferred, 195 pages; Benefits Voluntarily Conferred without Contract, 56 pages; Benefits Conferred under Compulsion, 89 pages; Waiver of Tort, 41 pages. The arrangement of the subdivisions and the selection of cases seem to be admirable. There is of course no better proof of this than the use of the book in the class room, and the volume has well stood a six weeks' test with students. The only possible improvement of classification that might be suggested in the earlier portion of the book would be to place ch. II, 1, I, c, Mistake as to Collateral Matters, after ch. II. 2, IV, Mistake as to the Nature of Subject-Matter of a Contract. But this is arguable.
Many of the cases are new; more than two-thirds of them had not appeared in Scott's Cases. A partial test reveals that they have been excellently abbreviated, with the exception that an interesting point is omitted in Haven v. Foster 9 Pick. 112 (p. 228). The citation of cases in the notes is careful; and there seems to be no instance of the fault, exasperating to the teacher, of printing cases not in point. In case book making it is no doubt ordinarily wise to select for the notes, while indicating the weight of authority, only important decisions. This Professor Thurston has done well. But in a subject like Quasi Contract, which is still incompletely understood by the courts, and in which it is difficult to run down cases in digest, it would seem helpful to have a more exhaustive list of authorites in the notes than here appears; though this omission is partially remedied by the number of new principal cases. In any event the important recent decision on change of position of Baylis v. Bishop of London, (1913) 1 Ch. 127, should have appeared, or at least been referred to.
We can commend highly the quality of the paper. The book, containing over 600 pages, is less than 1/4 inches thick including the cover; and yet the paper takes readily and retains well pencil or ink annotations.
AMERICAN DEBATE. A History of Political and Economic Controversy in the
United States, with Critical Digests of Leading Debates. By Marion Mills Miller. New York: G. P. Putnam's Sons. 1916. pp. xiii, 467,
This painstaking work is mainly a history, the first volume dealing with the constitutional questions of this nation from 1761 to 1861, and the second with land and slavery problems from 1607 to 1860. It is, however, copiously interspersed with selections from, and summaries of, arguments by contemporary statesmen.
The volumes are at once a "horn-book of politics,” to use an expression in a quotation of the author's from John Randolph, and a manual of our nation's forensic discussion. As the former, they abound in numerous biographical sketches, due prominence being accorded to facts revealing the legally trained man as perennially predominant in our public life. As the latter, they present in the form of quotation concrete illustrations of the application of such training in the arguments of partisans over the living issues of their day. Thus, although these volumes are in no sense of a legal nature, a study of them,
without more, would cause wonder whether, notwithstanding the assertion of Theodore Roosevelt,' lawyers might not be the sole leaders of a permanently successful nation.2
To the student of law, moreover, the appearance of Chancellor Wythe as legal instructor of Marshall, Monroe, and Clay, and the sketches of Lord Mansfield and of Benjamin, author of the treatise on "Sales," are refreshingly unique in a United States history of this scope and size. The work, withal necessarily superficial, relates the fundamentally all-important story of the making of our Constitution with a fair degree of incisiveness. Likewise of legal interest are the “Essex” and “Creole" decisions and the inevitable Dred Scott case.
Accordingly, one aim of the author, as stated in his preface, that his efforts might become acceptable to the bar, seems to hold the promise of realization, for his work possesses that most essential prerequisite of being interesting.
R. S. WILKINS.
LEADING CASES ON INTERNATIONAL LAW. By Lawrence B. Evans. Chicago:
Callaghan and Company. 1917. POSSESSORY LIENS IN ENGLISH LAW. By Lancelot Edey Hall. London: Sweet
and Maxwell, Limited. 1917. pp. x, 101. BUSINESS COMPETITION AND THE LAW. By Gilbert Holland Montague. New
York and London: G. P. Putnam's Sons. 1917. pp. vi, 318. THE STORY OF YPRES. By Hugh B. C. Pollard. London: McBride, Nast and Company, Limited.
1917. pp. 63. ADDRESSES AND PAPERS ON INSURANCE. By Rufus M. Potts. Printed by
authority of the State of Illinois. pp. 489. THE MORALS OF MONOPOLY AND COMPETITION. By Homer Blosser Reed.
Menasha, Wisconsin: George Banta Publishing Co. 1916. pp. iv, 143. LORD STOWELL: His LIFE AND THE DEVELOPMENT OF ENGLISH PRIZE LAW.
By E. S. Roscoe. Boston and New York: Houghton Mifflin Company.
1916. pp. X, 116. 1 Mr. Roosevelt's exact words, contained in “Law and Order in Egypt," an address before the National University in Cairo, March 28, 1910, were, "No people has ever permanently amounted to anything if its only public leaders were clerks, politicians, and lawyers." See ‘African and European Addresses," by Theodore Roosevelt. New York: G. P. Putnam's Sons.
? Perhaps Mr. Roosevelt would not dissent. It may have been the contaminating coleadership of clerks and politicians to which he was objecting.