An act done by or on behalf of a company may be defective for a variety of reasons. It may be ultra vires the company itself: in which case it will be void. It may be within the powers of the company but outside the authority or powers of the agent (usually the directors) doing the act: in which case it will also be void, but may nevertheless in varying circumstances be ratified by the company. It may be within the powers both of the company and of the agent but be done for an improper purpose: in which case it may in some circumstances be set aside or afford some other remedy.

One of my famous predecessors, Francis Bacon, once said that the office of Attorney-General was “the painfullest task in the realm.” It fell to another Attorney-General a few centuries later, Sir Patrick Hastings, to say that to be a law officer was to be in hell. I am happy to say that it is only occasionally that I feel like that about it.

Although it became a great office of state, its early history is wrapped in obscurity. The basis of the office appears to have been that as the sovereign could not appear in person in his own courts to plead in any case in which he had an interest, an attorney appeared on his behalf. As early as 1243 one Lawrence Del Brok, a professional attorney, was prosecuting pleas of particular concern to the sovereign. In the year 1247 he was paid a regular fee of £20 a year for “suing the King's affairs of his pleas before him.” As the functions of sovereignty became more complex and more extensive, and acquired a more public character, so the role and duties of the Attorney-General became wider. Already by the end of the thirteenth century the duties attaching to the King's Attorney's office had become burden-some. When Richard de Brettiville performed the duties, a medieval clerk added the postscript at the foot of a list of cases in which the King's Attorney was engaged, “Oh Lord, have pity upon Brettiville.”

In medieval times the political duties which now fall upon the Attorney-General werecompletely absent.

It is a commonplace that statements of legal doctrine sound both more determinate and more authoritative than they necessarily are. And this must be especially true of the maxims of equity,1 which possess a peculiarly Delphic quality, wrapped as they are in metaphor, grandly unqualified, and acknowledging no authority but transcendent wisdom. Therein may have lain their particular usefulness to the law.2 But therein too lies a worry. For it follows that reasoning based on a maxim especially facilitates the introduction of unarticulated valuejudgments; and indeed that such reasoning carries an unusually high risk of actual error, as the judges themselves miss their way.

THE principles for recovering monetary relief for losses to express trusts have recently been uncertain, especially in “commercial” situations. Where trustees undertook to hold money on trust for a lender and to advance the money to a borrower after receiving security documents, the trustees no doubt breach the trust by advancing the money without first receiving the security documents. However, since Target Holdings v Redferns [1996] A.C. 421, it has been uncertain what measure of relief the lender-beneficiary can recover – and especially whether the measure differs according to (1) whether the form of relief claimed is a general accounting or “equitable compensation” for only particular defaults or (2) whether the circumstances are “commercial”. Under the accounting doctrines as traditionally applied, trustees unable to vouch for trust assets they earlier received could not reduce their liability by showing that part or all of the loss would have been suffered even had they performed the trust correctly. The trustees were responsible for the misapplied sum regardless of causal enquiries. But, in Target, the House of Lords – emphasizing the commercial nature of the case – denied a lender-beneficiary's claim to recover the full sum wrongly disbursed by trustees. The significance of the case has been contested. Did Target change a fundamental norm of monetary relief for losses suffered through breach of trust – a norm applicable regardless of whether the form of relief claimed is a general accounting or equitable compensation for only particular defaults? Did Target instead leave the traditional accounting doctrines untouched, and create a new remedy of equitable compensation for breach of trust? Or did Target establish a “commercial” exception to traditional principles of trustee accountability, an exception limiting the quantum of relief? Indeed, was Target decided per incuriam?

Avoidance of emergency legislation

“The people had a right to free discussion. It was free discussion which elicited truth. They had a right to meet.” In these words at a civic reception in Liverpool on October 3, 1838, Lord John Russell proclaimed his belief in one of the basic freedoms of democracy, at the very time that Chartists were mobilising their forces and spreading their doctrine at meetings held throughout the country. This was an untimely declaration which drew upon him the deserved reproof of Sir Robert Peel; it unfortunately seems to have been put later to some rather unscrupulous use by the Chartists, an example of which went to furnish Sir James Graham with offensive material for his attack on the Government during the debate of January 29, 1840, on a motion of no confidence. None the less, even when the Chartist gatherings had attained an advanced stage of organisation, Russell with undaunted singleness of purpose affirmed the Government's resolve not to ask Parliament for additional powers or extraordinary measures, but to rely on the existing laws: “It would be very inadvisable to make any sudden change in the laws of the country and to introduce laws, the same as in some foreign countries, of exception for certain parties; because those laws have two bad effects—the one is that they excite the sympathy of a number of persons who otherwise would have no feeling in common with ill disposed and designing persons; and in the next place, because the people of the country in general, and even those who appear to be the worst disposed, do feel that there is a power and supremacy in the law, to which they are ready to yield obedience; and if a new law were introduced merely for the suppression of those societies, they would not feel that they were treated with the same justice with which they would have been treated if the ordinary laws of the country had been resorted to for their suppression and punishment.”

In Mills v. Armstrong Lord Bramwell, in commenting on the judgments in Thorogood v. Bryan, said: ‘At present I will only observe that the four judges were great lawyers, and I believe that an experienced lawyer may be, as it were, instinctively right without at the moment being able to give a good reason for his opinion.’ Although such intuitive judgments may be satisfactory as doing justice between the litigants in a particular case, there is always the danger that they may prove to be misleading from the standpoint of the further development of the law, for it is natural to assume that as the judge has reached conclusion X by means of reason Y, therefore if conclusion X is correct then reason Y must be correct also. In future cases reason Y is accepted without further consideration because it has in the precedent case apparently led to a desirable result, even though, in fact, there may be no valid connexion between the reason given and the result. It may be suggested with all respect that the recent case of Cutler v. United Dairies (London), Ltd. may in the future have such an effect on the development of English law for, although the conclusion reached in it is obviously just and in accordance with established law, nevertheless some of the reasons advanced by the Lords Justices in support of their judgment are of doubtful validity, and may, if accepted apart from the facts of the particular case, lead to unfortunate results.

I.—Until quite modern times the expression ‘Criminal Science’ was taken to mean no more than study of criminal law. The nature and the method of criminal science at this stage is best illustrated by the well-known dictum of Carrara, one of the chief exponents of the classical school of criminal law, that ‘crime is not an entity in fact but an entity in law; it is not action but infraction’ (‘il delitto non è un ente di fatto ma un ente giuridico, è una infrazione e non un’azione’). The personality of the delinquent, the origin of crime, the nature and the efficacy of punishment, the relationship between society and criminal justice,—problems which now constitute such an important part of criminal research—for many decades remained completely outside the scope of criminal science as then understood.

THE comparatively recent case of Collins v. Associated Greyhound Racecourses, Ltd. has raised in a forcible manner two old difficulties—namely, the legal position of undis–closed principals, and, as a corollary, the meaning of ‘person–ality,’especially in contracts involving undisclosed principals.

We are here concerned with a situation in which A, an undisclosed principal, employs B, an agent, to contract with C, a third party, in B's own name. By ‘undisclosed principals’ here are meant principals whose existence is not known to the third party and not principals who, known to be existent by the third party, are nevertheless not identified by name. By ‘agent’ is meant a person who in his own name contracts ostensibly for his own account, but behind whom there stands an undisclosed principal.

Before discussing Collins' Case we propose first to examine the general position of undisclosed principals.

When “ratification” is raised as an issue in relation to directors' breaches of duty, the difficulty which is most commonly discussed is how to draw the line between ratifiable and non-ratifiable breaches.

What has received considerably less attention is the meaning of “ratification” itself. This is evidenced, not the least, by the variety of other names attributed to the process performed by the general meeting when it “ratifies” a breach of duty. This has variously been described as “adoption,” “confirmation,” “affirmation,” or mere “approval.” Ironically, it is clear that the concept has nothing to do with “ratification” as it is understood in the law of agency, though this is the name most widely used.