Page:Harvard Law Review Volume 10.djvu/331

AOTES. 305 ground that no company at all exists, since the "spirit and policy" of the Companies Act were disregarded ; (2) that the promoter vendor is prin- cipal and the company agent ; and (3) that the company is trustee for him, and so entitled to be reimbursed for necessary expenses as to the res held in trust. The first theory could scarcely be advanced in this case by the company itself. Mr. Justice Williams seemed to take the second view, and Lord Justice Lindley the third. The House of Lords rejects all three, and criticises them freely. The Lord Chancellor says there is absolutely no evidence of a fraud on the company, as all the original stockholders knew what they were doing. Even the creditors could not have raised the question of fraud, for they had ample notice of the limi- tation of liability and the charges on the capital stock. (§ 43 of the Com- panies Act requires the registration of mortgages.) Nor may the decision of the two inferior courts be rested on the policy and spirit. of the Act. Its spirit or intent should be gathered from its own words, and at all events cannot be invoked for the purpose of reading an exception into the statute. Expert Medical Testimony. — That the deliberately expressed opm- ions of scientific men, upon matters within their province of study, should be of considerable assistance to a jury in settling an issue might reasonably be expected. It is generally agreed, however, that tiie testimony of medical experts, under present conditions, falls very far short of realizing any such expectation. It daily occurs that directly contradictory opinions are obtained from those whose views should be essentially alike. A single significant instance may be mentioned. In a recent murder trial in New York, six days were spent in hearing the opinions of medical experts. In charging the jury, the judge told them to disregard this testimony entirely, as too contradictory to be of any value. Nowhere is the dissatisfaction with this state of affairs so keenly felt as among reputable members of the medical profession. That their calling should be the subject of so much just criticism in re- spect to the expert testimony given by its members, is deplored by physicians of standing from all over the country. The desire to remedy the evils of the present system is manifesting itself actively. The med- ical associations of a great number of the States are busily discussing the question, and suggesting schemes for improvement, and already in New York, Illinois, Pennsylvania, and Minnesota legislative aid has been sought, though as yet in no case granted. The fact that the experts are retained by the parties to the litigation seems to be the source of the difficulty. Under such circumstances it would perhaps be too much to expect that the testimony should be entirely un- prejudiced. The position of the experts is really that of contending par- ticipants in the cause. That they so regard themselves, to a degree at least, and that in consequence their controversial feelings are aroused, is certain. An incident illustrating this is related of a case tried before three referees, in which the main point at issue was the physical condition of the plaintiff. Two doctors of wide reputation gave opposing opinions, each for the side on which he was retained, and each with positive as- surance. A younger physician testified in a manner apparently un- prejudiced, and with evident fairness. In arriving at their conclusion the referees were guided almost entirely by this last opinion, one of them pointing out to his colleagues the astonishing fact that the young man 41