The Legal Observer, OR, JOURNAL OF JURISPRUDENCE. SATURDAY, NOVEMBER 1, 1845. "Quod magis ad Nos Pertinet, et nescire malum est, agitamus." PROJECTED ALTERATIONS IN HORAT. vent shall fail to satisfy the court that his bankruptcy or insolvency has arisen from unavoidable misfortunes, and not from fraud, wilful misconduct, extravagance, gambling, or It may be appropriate, in commencing improper speculation; or if he shall have been a new volume, to consider the several sub-guilty of concealment or fraudulent transfer of jects which it will probably be our duty to property, destruction or falsification of his bring under discussion during the ensuing books, &c., or of any offence now punishable session. And although parliament is not by indictment. expected to assemble until the usual time, ment creditors of the bankrupt or insolvent for 3. That the assignees be deemed judgthere are already some "notes of warlike the whole amount admitted by him to be due preparation," indicating many projected to his creditors; and the like as to individual incursions for the removal of our old legal creditors, for the amount of their debts proved; landmarks, which we shall proceed briefly the court to grant certificates thereof, which, to notice. It is true, however, that some of them may be designed only to cure defects in modern legislation, and not to overthrow the ancient. These it will be our business carefully to watch. I. We have received information that very strenuous efforts will be made at the commencement of the session for the amendment of the Law of Bankruptcy and Insolvency. A committee of merchants and traders was appointed, at a public meeting held at the London Tavern in May last, at which Mr. Masterman, M. P., presided, and which we noticed at the time. Their plan, in its principal features, is this : upon the protection being withdrawn, will enable the assignees or creditors to take the debtor in execution. 4. That the pension and half-pay of bankrupts be made available for the creditors. 5. That mortgages and bills of sale of goods and chattels given as security, be registered within 21 days after execution, otherwise to be void as against the assignees. 6. That the Court of Bankruptcy, upon the decease of a trader, and in case of no legal a month afterwards, shall send a person to personal representative being appointed within remain in charge of the effects, until an executor or administrator shall be appointed; and in default for one year, the court shall appoint an official assignee of the estate, and administer the effects as if a fiat had been issued. 1. That the Court of Bankruptcy, upon the Such is the substance of the alterations non-appearance of a trader debtor to a sum- suggested by this commercial Association, mons, or upon his not proving that he has a and which have been embodied in a bill good defence, shall appoint some person to proceed to the debtor's premises, and prevent brought in by Mr. Masterman and Mr. the removal of the property, unless satisfac- Hawes. Seeing the mischievous effect of torily informed of its destination; and to re- several recent enactments on the interests quire an account of all monies received and of trade and commerce, we do not wonder paid during the time of his continuing in pos- that the merchants of London should at session, until the opening of a fiat. 2. That the Court of Bankruptcy suspend or withdraw its protection from arrest from the bankrupt or insolvent debtor at any time, at its discretion, particularly if the bankrupt or insolVOL. XXXI. No. 921.. a A similar registration is now required of warrants of attorney and cognovits, when judgment is not entered up within 21 days. B 2 Projected Alterations in the Law. 1. Habitual traders, or such as are within the provisions of the present bankrupt laws. 2. Persons who, though not habitual traders, are indebted in respect of commercial contracts, as on bills of exchange, &c. length bestir themselves. Our readers will and he submits to his lordship that this readily form their own opinion of the pro- court should have jurisdiction in cases of priety and expediency of adopting these real or apparent inability on the part of recommendations. It will be seen that debtors to fulfil their engagements; such their main and proper object is, to pro- debtors coming within any of the following cure larger powers over the property of classes, viz. :— debtors than hitherto existed. The tide for a long time has been running in favour of" the poor debtors," and against the interests of the defrauded creditors. It seems now turning in a better direction. The power of arrest having been taken from the creditor, he justly seeks to possess, in return, every possible means of obtaining the debtor's property, and where his conduct has been culpable or fraudulent, to punish him by imprisonment. 3. Persons indebted to traders under certain limitations. 4. Judgment debtors. 5. Depositories of the money or effects of others. 6. Conventionary debtors, or persons having obtained letters of license, composition or inspection deeds, &c. Whilst the merchants are thus coming It is then proposed, by the aid of the forward to protect their own just rights judges, (consisting of a chief and three and interests, the lawyers have not been puisne judges,) with sub-commissioners inattentive to the evils of the existing and registrars, to remedy the inconvenient system. Amongst them, we have parti- extent of the present districts, or to incularly to notice the labours of Mr. Ser- crease the number of districts, appointing jeant Manning, who has prepared an ela- one commissioner to make a monthly cirborate and learned report, addressed to the cuit, and the other to remain stationed in Lord Chancellor, in which he reviews the a large central town. history and present state of the laws of bankruptcy and insolvency, as well in this as other countries. He thus states the principle on which the laws should be framed :1. "To place the creditor in a situation as near to that in which he would be entitled to stand according to the terms of the original contract, as the altered circumstances of the "debtor will allow. The next proposal relates to letters of license, composition and trust deeds, &c., under which arrangements the learned Serjeant enters into very lengthened details. He then proceeds to compulsory and voluntary declarations of insolvency, and the measures requisite for rendering available the present and future acquired view we are now taking, it is unnecessary property of the debtor. In the general 2. "To relieve the insolvent from all inconvenience and suffering not necessary for the purpose either of enforcing payment to the to consider these details. To them and extent of the insolvent's real ability, or of dis-other subjects discussed in this " Proposal couraging the imprudence and repressing the for the Amendment of the Law of Bankfraud and crime in which insolvency and bank- ruptcy and Insolvency," we shall return in ruptcy so often originate." due season. The learned Serjeant then submits to II. We have next to call attention to the Lord Chancellor, as the first measure the renewed project of a General Registry for consideration, a consolidation of juris- of all deeds relating to property, freehold diction in all matters connected with in- or leasehold. A bill for carrying this solvency, whether of a commercial or non-object into effect was brought in by Lord commercial character. He says— "The object of a sound legislation in both cases being the protection of the creditor, and subordinately thereto, the relief of the debtor, there appears to be no reason for the continuance of distinct and sometimes conflicting jurisdictions in respect of the two classes of insolvents." He then proposes a new court of record, to be called "The Court of Insolvency for England and Wales," or "The Court of Insolvency and of Matters of Account;" See the bill, 30, L. O. 460. Campbell on the 26th May last, and will The question peculiarly affects all that class of persons who require temporary loans, which have hitherto been effected by a deposit of title deeds, or by a mortgage, which, not being registered, does Projected Alterations in the Law. not expose the transaction to a curious or ill-disposed rival, or a litigious opponent. 3 ever, admit the force of this position. Rather let us amend the blunders which have been committed, and retrace our steps, than, persisting in error, deviate still more from the right course. Un The frauds committed for want of registration, according to the evidence which was given before the Real Property Commissioners, appear to be not one in a III. Then comes the important subject thousand. Supposing that some further of Local Courts. It can scarcely happen, endeavours should be made to provide that the hasty and ill-considered clauses against these rare instances of deceit which added to the Small Debts Act of the last escape the vigilance of the lender's solici- session, will be deemed a sufficient settletor, we have then to consider-whether ment of this long mooted question. a law which should give priority to all less those enactments are repealed, or registered incumbrances, (despite all essentially altered, there must be some other notice,) would not occasion as general measure to place the newly many frauds as it will prevent. Money enlarged courts upon a rational footing. might still be lent on the faith of a deposit If there are to be two systems of adminisof deeds, in ignorance or disregard of the tering justice in regard to debts,-one the law law, and on the reasonable supposition that above and the other below 201., no one would make an advance upon a and practice in the local and inferior bare mortgage, without a delivery of the courts must be framed upon an intelligible title deeds, and in all but rare instances and uniform plan. Those who live in the no doubt such delivery would take place; country have the means of accurately and then would come the various questions knowing the state of the law and practice of constructive notice, unless it be intended in the courts at Westminster. Why should absolutely to abolish them. not those who are compelled to resort to Besides the consideration of the grounds the provincial districts have the same adand principle of the measure, we must look vantage? As the matter stands at whether at its practicability. Is the place of regis- present, each petty tribunal tration to be in the metropolis, or some court of conscience or request, county principal city or town of each county? court, or manor or borough court, when Must the profession in the country be enlarged in its jurisdiction of amount and driven to town on every occasion to search district,-will be regulated by its present the registry, or must one and all be com- system of proceeding; so that the suitors pelled to travel from one county to ano- therein will have no uniform course of ther, wherever the property may be situate? proceeding to guide them. Then there are no small difficulties in the We scarcely expect that the voice of mode of registration; the description of the lawyers will be listened to; but the small estates; the imperfection of indexes; merchants and wholesale traders must be and the responsibility of searches ! enabled to recover their debts in the It will be urged, that there is now a various separate districts, without the material difference in the position of the difficulty and inconvenience of sending question, compared with its former state. their agents and witnesses to distant We are aware that the alterations which places. Where the debtor resides more have been made in the law of real pro- than twenty miles from his creditor, the perty by some recent statutes, lead some latter should have the right of suing in the persons (but without, we think, sufficient superior courts. In fact, there should be reason) to conceive that the time has arrived when further changes should be effected, and amongst others, the establishment of a general registry. This is one of the evils which accompany all changes in the law. They are, as we have seen of late, prepared and passed with imperfect knowledge and without sufficient consideration, and require either to be repealed or amended, or new mea sures taken to provide against the mischiefs consequent upon the change. Thus, it is now said, that having gone so far, we must proceed farther. We cannot, how a concurrent jurisdiction in regard to all sums above 107. (if not above 57.,) to sue in the superior courts. The judges, indeed, under the act, in its present state, will have to decide whether this is not the true construction of the intention of the legislature. By one of the clauses, 8 & 9 Vict. c. 127, s. 21, a defendant may remove the action if the sum exceed 107.; and it must be inferred that the plaintiff is equally entitled to have the choice of the court to which he thinks proper to resort. If the act be not altered, this question will no doubt soon be raised. B 2 Decisions under the Small Debts Act. Actions of Debt Limitation. Death by Accidents Compensation. Chattel Interests Assignment. Then it seems that no professional assistance is to be allowed. It is at present entirely unknown whether the sick, the aged and infirm, and women, and others totally inexperienced in business, will not be obliged either to abandon their just claims, or personally to act as their own For all these alterations, bills were advocates, opposed, perhaps, to artful brought in and printed, and they will be persons, long-practised in deceit, with found in the pages of our last volume; to whom it will be difficult to contend. This which may be added, the proposal, of which state of things must surely be amended, or notice has been given by Mr. Ewart, justice to the poor man will become a totally to abolish the punishment of death. mockery. Amongst the bills which, in our humble IV. Of the ten bills of Lord Brougham, judgment, ought to have been passed in which were laid on the table of the House the last session, were three bills intended of Lords at the latter end of May last, five to authorise the service of common law were passed, namely, the Short-Form Con- process abroad upon persons indebted to veyancing Act, the Short-Form Leases creditors in this country or in Ireland or Act, the Outstanding Terms Act, the Scotland. We trust the bills will have a Small Debts Act, and the Documentary Evidence Act. The five remaining bills, which were deferred, are the following : 1. The Civil Actions Bill, enabling the plaintiff or defendant in an action to be examined as a witness, provided a month's previous notice be given. better fate next session. We hope the VI. Our readers are aware of the various steps taken to promote the important ob2. The Declaratory Suits Bill, enabling par- ject of removing the courts of law from ties to examine witnesses and have their rights Westminster to the vicinity of the inns of declared, where future litigation is apprehended. This subject we have reserved for a separate article, to which we beg leave to refer. 3. The Law of Marriage Amendment, requiring three weeks' residence in Scotland before marriage, and twelve months' residence before divorce. 4. Independence of Members of Parliament, under which there would be no privilege against arrest for non-payment of debts. 5. Administration of Criminal Justice, practically establishing provincial courts on the principle of the Central Criminal Court, to which offenders may be sent from neighbouring counties. These bills no doubt will be revived, and perhaps from the same prolific source the number increased, in the ensuing session. It will be our duty to consider and discuss them, so soon as they make their reappearance, either in the same or any other shape. | court. It will be observed, from this long catalogue, that there are abundant materials to engage attention for the next six months. We trust that such of our readers as prehended in this our opening address, are interested in the various subjects comwill, from time to time, aid us with their hints and suggestions, in order that we may the better execute that good part in perform. the common cause which it is our duty to DECISIONS UNDER THE SMALL THE absence of anything like uniformity in V. At the close of the last session, the practice, as well as the decisions, under the numerous measures, besides these five of Lord Brougham, were postponed. The stat. 8 and 9 Vict. c. 127, already begins to be following are the subjects to which they felt as a serious inconvenience, and tends, in relate: many instances, to defeat its provisions. The commissioners of the Court of Bankruptcy, from their station and professional experience, are naturally looked to, as the persons most competent to administer this law, and the numerous judges of inferior courts, with whom they divide the responsibility, would probably look to their decisions-when well Removal of the Courts from Westminster. 5 language of the first section of the statute, expressed a decided opinion that the act did not apply to a case of this nature. The words of the act were,." If any person shall be indebted considered-if not as binding authorities, at, who had obtained a judgment after verdict for least as useful guides. We understand, how-127. odd, being the amount of his costs. The ever, that no meeting of the commissioners has learned commissioner, after considering the yet taken place to consider the provisions of the act; and under these circumstances it is not to be wondered at, if the decisions of individual commissioners should be occasionally contradictory, as well as unsatisfactory. In to any other in a sum not exceeding 201. besome few instances orders have been made for sides-costs of suit, by force of any judgment," the committal of parties who have failed to &c. Here the judgment was wholly for costs, appear after personal service of a summons; and there was no debt for any sum ultra the but as no forms of orders under the act costs. An order for costs was provided for, have been framed or settled authoritatively, a but the case of a judgment for costs only did great difficulty is thrown upon the suitor, who not appear to be in the contemplation of the is told that he must draw up his own order of legislature. The commissioner, therefore, recommittal! The form adopted in one instance fused to grant a summons. we give below, not recommending it as a WESTMINSTER. model, but conceiving that in the absence of REMOVAL OF THE COURTS FROM any printed form it may afford some assistance. The only case that has recently reached us deserving of notice is the following: In the matter of Wilson v. Hart before Mr. Commissioner Shepherd, an application was made for a summons on the part of a defendant, EVIDENCE OF WITNESSES, AND PLAN OF It seems highly probable that the removal of the ill-constructed and insufficient courts from their present inconvenient situ * Order of Commitment for not appearing to Sum- ation, at the extremity of Westminster, for mons. Court of Bankruptcy, London. To Y. Z. (the Messenger or Officer,) To the keeper of the prison of, &c. now duly summoned to attend here this day to answer such questions as might be put to him touching the not having paid to C. D., of of £ which we have long and earnestly contended, will at no distant period be carried into effect. We noticed in our last volume the proceedings which were taken last session for promoting this object, and particularly the meeting of the select committee of the House of Commons, formerly obtained by Sir Thomas Wilde, then the the sum Solicitor-General, and renewed by Mr. for his debt, and £ for his costs re- Charles Buller. The select committee recovered by a certain judgment (or order) of the ported the evidence of the witnesses whose court of ; and the said A. B., although attendance before them we noticed at the duly called, has not attended as required by the time; and the report has just been printed, summons served upon him, and has not alleged with the plans of Mr. Barry, one of which a sufficient or any excuse for not attending. Wherefore I, the undersigned commissioner, do shows the site occupied by the present hereby order that the said A. B. stand com- Houses of Parliament, and the other the mitted to the custody of the keeper of the proposed new site and its neighbourhood. county gaol of for the space of We shall here endeavour to condense the days, and I do further order the said Y. Z. to evidence on all the main points into as take the said A. B. and him safely convey to brief a compass as possible. the prison of the county of situate in , and there to deliver him to the keeper thereof, together with this warrant. And I do hereby command you, the said keeper of the said prison, to receive the said A. B., of into your custody in the same prison, and him safely to keep for the space of forty days from the time of his commitment, unless he shall in the mean time be discharged out of custody by leave of me, or any other commissioner, or of a judge of the Court of Bankruptcy. Given under my hand this day of L. M., a commissioner. b Tuesday 28th October, 1845. Mr. Barry's evidence shows very strikingly the inconvenience of the present courts, and the necessity of new ones, more in number, and more commodious; and the impossibility of re-constructing the present courts at Westminster, so as to provide a sufficient extent of building. He also proves that there is no site in juxtaposition with Westminster Hall for the erection of new courts; and he states the purposes for which the present site might be appropriated, in connection with the Houses of Parliament. The removal of the courts would enable a material improvement to be effected |