357
Index to Periodicals company ‘is a mere abstraction of law. All that it does, all that the law imputes to it as its act, must be that which can be legally done within the powers vested in it by law. Consequently a thing which is ultra vires and unauthorized is not an act of the company in such a sense as that the consent of the company to that act can be pleaded.’ (1 L. R. Ch. at p. 152.) This might well have been said by a man with his head full of the Fiction theory, and Lord Sel bome, who was a scholar, though not very learned in the antiquities of the law, may well have known something of the theory in its earlier forms. But the English doctrine of Ultra Vires, as we call it, does not really go back to any ultimate conception as to the nature of a corporate body. It is a doctrine, to use a con venient American term, of constitutional limita tions. If the same authority which created a given juristic person, or authorized the consti tution of many juristic persons by the perform ance of certain conditions, has at the same time set bounds to the legal competence of such Eersons, bounds whic are matter of public nowledge, then acts professedly done in their name and exceeding those bounds are nulli ties. . . . "As for the question utrurn unioersitas delin guere poi-sit, our modern way has been to cir
cumvent it. The real diflficulty was to make out how any man, any natural man, could be vicariously liable to pay damages for the wrong ful act or negli ence of his servant, which he had in no way aut orized and might even have ex pressly forbidden. When this was overcome, the difficulty of ascribing wron ful intention to an artificial person was m trut onl a residue of anthropomorphic imagination. mud and malice, some learned persons continued to say, belong only to individual men; much as our Germanic ancestors could not conceive any right being transferred without a tangible sym bol, and, as late as the fourteenth century, men thought the patron of a church insecure until he had solemnly gras the handle of the church door. But those earned persons were already a minority half a century a o. The story is well and sufficiently told by NFL C. T. Carr in his recent book on the Law of Corporations. My only regret is that he asks himself whether ‘the Fiction theory has been officially discarded.‘ The time has come, I think, to ask whether any English Court ever oflicially or semi-officially adopted it, and I make bold to answer in the negative." "Executory Ultra Vires Transactions." By Prof. Edward H. Warren. 24 Harvard Law Review 534 (May). A company is incorporated "to engage in the business of transporting persons by means of hacks or other vehicles." Thereafter the incor porated associates vote to engage in the business of transporting goods by express. An extensive express business is carried on in the name of X. M. delivers goods to a servant of X. to be car ried by express, and the goods are not delivered. M. sues X., and X. defends on the ground that the contract was ultra wires and therefore its breach imposes no liability. Ought this defense to prevail
"It is submitted that (1) if all the share holders of X. who were such at the time the con tract with M. was made authorized or ratified the transaction of the business in the course of which this contract was made, and (2) if M. did not know and could not reasonably be charged with knowledge that the contract was outside the contemplated sec of X.'s action, then X. should not be allow
to defend on the
ground that the contract was ultra vires." There is an extended note on the authorities.
See Federal and State Powers, Professional Ethics.
Criminal Law.
See Codification, Penology.
Criminal Procedure.
"The Administration
of Criminal Justice in Wisconsin." By Judge E. Ray Stevens. 2 Journal of Criminal Law and Criminology 39 (May). Judge Stevens, who is president of the Wiscon sin Branch of the American Institute of Criminal Law and Criminology, reviews the progress which has been made in the reform of criminal procedure in Wisconsin during the past two years. Several instances in which the Supreme Court has refused to be guided by technicalities not affecting the substantial rights of the rties are inted out. But perfection in the a minis tration of the criminal law has not been attained, notwithstanding these improvements. "Three or four years ago a defendant was on trial for wife abandonment before a jury of twelve in Fond du Lac County. During the trial one of the jurors disappeared. As he could not be found by the officers, the defendant con sented in open court that the case be submitted to the eleven that remained. He was convicted. He carried the case to the Supreme Court, where he presented the single question, that the judgment must be set aside because he could not consent to be tried by eleven instead of twelve jurors. A majority of that court, considering themselves bound by the strict rule of the earlier cases, reversed the jud ment. . . . “We preserve the ri ht to he tried by a ju of the county in which t e offense was committ, and then spend weary hours and even days in carefully excluding every juror that possesses even the slightest tinge of a suspicion of knowl edge that would have qualified him to act as a juror in the days when the rule was established r uiring jurors to come from the vicinit in cider that the might have a knowledge 0 the facts that won d enable them to decide the case justly." "Delays and Reversals on Technical Grounds in Criminal Trials." By E. J. McDermott. 2 Journal of Criminal Law and Criminology 28
(May) “The delays in civil and criminal trials here are inexcusable, and yet it would not be hard to avoid most of them. These delays are due to the complicated, obsolete nature of our procedure; to the deep-rooted, unreasonable con servatism of our courts, and to the dilato ' habits
of the lawyers themselves. Delay usua l_y suits the purpose of the defendant; the plaintiff pro ceeds slowly because he must proceed with cau
