A red herring has been drawn over this text. For one and three-quarter millennia no particular difficulty was felt about usucapion where the usufructuary of a female slave sells the offspring in the belief that it belongs to him—a belief which is false since the child of an ancilla is not treated as fruit. Some thirty years ago, however, Siber declared that usucapion is impossible because of error juris. Several passages explain that bona fides resting on error juris is not good enough for usucapion, and in this case—Siber holds—the buyer is wrong about the rules governing the offspring of a slave woman in usufruct. In Siber's opinion, Gaius intends only to point out that the offspring is not res furtiva, but he does not admit usucapion.

Heading 4. “Fraud on a Minority,” where the Wrongdoers have “Control.”

It was stated above, in the discussion of ultra vires, that actions falling under the fourth Heading of the “exceptions” to Foss v. Harbottle must be “corporate” and not “personal” actions. That is why a minority action brought on the grounds of “fraud” has usually been regarded as a real “relaxation” of the Rule. It is a special procedure, only allowed to the minority in order to avoid “an action in the name of the company, and then a fight as to the right to use its name” in which the minority must lose because the wrongdoers control the company. As such, it is “an excellent illustration of the golden principle that procedure with its rules is the handmaid and not the mistress of justice.” The representative form of the minority shareholders' action must not be permitted to obscure the fact that the “only relief possible in this action is corporate relief.” For this reason, those cases establishing a personal right to prevent any alteration of the articles which would be a fraud on the minority, do not fall under this Heading, and were placed under Heading 3. In the cases now to be discussed, all the rules appropriate to corporate actions apply —notably, that the plaintiff must sue in representative form and cannot join a personal claim; can attack wrongs anterior to his own membership; must join the company as a party; and can join the wrongdoers to assert the company's rights against them.

Glanvill, as we have seen, held office as sheriff of Yorkshire during the two periods 1163–1169 and 1175–1189. Throughout both periods it is he who, according to the Pipe Rolls, renders the account of that sheriffwick. During the second of these periods, however, there is reason to believe that he did no such thing. In the year 1177, the Pipe Rolls say outright, with respect to another county, that he accounts by the verumdictum of “Reiner his steward” in respect of the past three years; and although they do not speak of Reiner, or indeed of any other, as his deputy when accounts are rendered for Yorkshire, there is little doubt that Glanvill employed Reiner to act for him as sheriff in that county also. Indeed, Glanvill as sheriff of Yorkshire could hardly appear otherwise than by deputy when presenting his accounts at the exchequer where Glanvill the Justiciar presides.

The original object of this paper was to consider the main differences between the law in England and India as to the recovery of money paid, goods delivered or land conveyed under an illegal agreement, first by restitution where the property has already passed, secondly by retention of a prior rightful title, limited or general. It has, however, been found necessary to devote a good deal of attention to the English law. On investigation, the paths do not all prove to be as well trodden as might have been expected. Grodecki, Hamson and Howard Street, among others, have made valuable contributions in this field, but little attention has been paid to the interplay of the various maxims that have influenced the development of the law, and there seems never to have been any attempt to make a comprehensive statement of the various rules of English law applicable where one of the parties to an illegal agreement seeks to rely on his title. The absence of any such analysis has led to doubt and difference of opinion in India, which can be resolved if the English cases are placed in what is believed to be their true setting.

Complaints have often been made about the pitfalls of certiorari as a remedy in administrative law. The reports of recent years have been rich in decisions on its scope, and some of them have brought welcome clarification. But others have been bewildering, so much so that the courts themselves have now begun to encourage litigants to abandon certiorari in favour of the action for a declaration. It is a little paradoxical that in 1932, when certiorari was less vexed with uncertainties than now, the Committee on Ministers' Powers proposed to abolish it, yet in 1957, when it had proved notably unequal to the needs of the times, the Franks Committee discharged it without a stain on its character—and, indeed, recommended that it be given a wider operation, as has now been provided in the Tribunals and Inquiries Act, 1958. The explanation lies not merely in the proclivity of the earlier Committee to embark upon difficult legal questions, which their successors wisely avoided, but in the different nature of the problems considered, some being of form and some of substance. What the Ministers' Powers Committee wanted to reform was the “archaic and in some ways cumbrous and inelastic ” procedure of the ancient prerogative writs of certiorari, prohibition and mandamus, for which they wished to substitute a general right of appeal to the High Court on a point of Law. The Franks Committee, on the other hand, did not address themselves to the defects in procedure—although they were pointed out in evidence —and they said singularly little about the proposals of 1932; they were concerned rather to protect certiorari against the operation of “judge-proof” clauses in Acts of Parliament, and to endorse the sound policy of the bench in giving such clauses a narrow construction.