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CON TEN TS.
Judicial Statistics, 1870
... page 5
The Value of Law Reports and Text Books 6
7 Ex parte TODHUXTER; Re NORTON
B.A. 1869, ss. 11, 95, 123--Liquidation...... 313 ESTATE AND INVESTMENT JOURNAL Ex parte KEY; Re SKINXER
Stock and Share Markets
8 B.A. 1769, 8, 6, sub-sect. 5, ss. 11, 87, 95,
Reports of Sales
8 and 125-Execution
8 MCLEAN AND ANOTHER v. FLEMIXG
317 Charter-party-Dead freight
Notes of New Decisions
9 COURT OF APPEAL IN CHANCERY.
Unclaimed Stock and Dividends in the Re RIVER STEAMER COMPANY (LIMITED)
Bank of England
9 (MITCHELL'S CLAIM)
Appointments under the Joint-Stock Statute of Limitations-Debt barred by 319 Winding-up Acte .....
Creditors under 22 & 23 Viot. c. 35...
9 ROLLS COURT.
Cambridge County Quarter Sessions
10 V. C. MALINS' COURT.
REAL PROPERTY AND CONVEYANCING :VINT 1. CONSTABLE
Notes of New Decisions ...
10 Landlord and tenant-Stone quarry...... 324
11 WILSON v. O'LEARY
Tribunals of Commerce
Notes of New Decisions..
12 MANCHESTER, SHEFFIELD, AND LINCOLX.
Dewsbury County Court
13 SHIRE RAILWAY COMPANY v. WOOD
Faversham County Court.
13 COCKInvitation to premiges-Danger............ 335
13 COURT OF EXCHEQUER. JOHNSON v. EMERSON AND SPARROW
LAW STUDENTS' JOURNAL: Maliciously, &c., presenting a petition
Answers to the Final Examination Ques. tions ............
14 in bankruptop and procuring plaintiff to be adjudged a bankrupt
CORRESPONDENCE OF THE PROFESSION 14
15 LEADING ARTICLES, &c. LAW SOCIETIES:
Leeds Law Students' Society......
15 TO READERS AND CORRESPOXDENTS...... 1
PROMOTIONS AND APPOINTMENTS
16 LEADING ARTICLES :Topics of the Week 1
Sittings and Cause List for Michaelmas The Rights of Execution Creditors as
Term 1071 ........
16 against the Trustee in Bankruptcy.
BIRTHS, MARRIAGES, AND DEATHS
PRACTITIONERS should be careful how they use the bankruptcy laws as an engine for extorting payment of alleged debts. An in. structive case on this subject is reported in the present number of our reports, and we would call attention to one remark of Mr. Baron Martin, who said “ Bankruptcy is the proper step when a man is so largely indebted that all his property is required to pay his creditors, and ought not to be had recourse to wheu payment can be enforced by an execution in an ordinary action at law." A SYSTEM of touting is coming to light in the Court of Bankruptcy. On Saturday last a barrister produced to Mr. Registrar Roche a circular from the “ Anti-Bankruptcy Association,” requesting creditors to send proxies to the office, at Weavers’-hall, and containing information which was alleged to have been improperly obtained from the officials of the court. The Registrar directed an inquiry, in order that “the law might be enforced against a! who had offended." As we anticipated, our contemporary the Chicago Legal News was burnt out in the great fire. An affecting, and at the same time a characteristic, incident in connection with the event is mentioned by a little sheet which was brought out notwithstanding the destruction of the office. The little daughter of the editor, named BESSIE, rescued from the flames, not any of the valuable law library on the premises, but the subscription book and the ledger! These she courageously conveyed to a place of safety. Positively a file of the Law TIMEs was sacrificed in order to rescue the subscription book and the ledger! We fear BESSIE does not inherit the professional instincts of her learned mother, but is strongly possessed with the commercial keenness of her countrymen. The position of the Chicago lawyers is deplorable. The courts are destroyed, there is not a law book in the place, and there is no liti. gation, for the insurance companies, who might have caused some fighting, are absolutely bankrupt. Would it not be a noble act if English lawyers subscribed for the relief of their American brethren, at any rate to the extent of supplying the lost libraries? We. shall be happy to be the medium of such benevolence.
NOTICE.-NOW PUBLISHED. A GENERAL INDEX to vols. 11 to 20 of the Law TIMES REPORTS, New
Series, will be published in ten parts, price 1s. each. Sent free of postage to subscribers. The first part is now ready. The General Index to vols. 1 to 10, N. S., may still be had, price 78. 61. in cloth.
MR. RUPERT KETTLE is a very able man and an admirable County Court Judge, and all that he says deserves attention ; but the evidence which he gave before the Select Committee on Tribunals of Commerce suggests some perplexities. He says that bankruptcy laws are expensive, and that rogues benefit as much by the present system as they did under the old system. He also re. marked : “I believe that the coat which I am wearing is enhanced in price to me at least 15 per cent. by the bankruptcy laws;" and he goes on to explain this by saying that he paid the different manufacturers a margin to secure them against bad debts. This latter proposition we do not dispute; but we do not quite comprehend bow an amendment of the bankruptcy laws could improve matters. If there were no bankruptcy laws at all-that is to say, if a man could not escape from his creditors—there would still be bad debts against which tradesmen would secure themselves by high prices. Mr. KETTLE is used to practical illustrations; but we do not think he can be considered accurate when he lays the high price of his coat at the door of the bankruptcy laws.
The Law and the Lawyers.
MR. CHARLES JEFFERY, of the Northern Circuit, has been appointed District Magistrate in Jamaica. The appointment is worth 8001. a year. It was rumoured on the first day of Term, that Mr. Justice WILLES and Mr. Justice MONTAGUE Suitu will be two of the new Judges appointed to the Privy Council. This expectation was
VOL. LII.-No. 1492.
The Pall Mall Gazette proposes that a code of law should be prepared and bit by bit receive the ratification of the Legislature, a digest being prepared preliminary to the code in order to “re-arrange the law on rational principles, and to clear it of absurdities, anomalies, and contraditions.” This is pretty much what we have
already recommended, the phraseology being adapted to the popular taste. And this alteration of phraseology breeds confusion. No“ re-arrangement” is to be thought of. There must be entire re-construction. There are gaps in our system which must be filled up, and thus we agree with our contemporary that the work of the Legislature ought to begin with the first sheet of the code. Consequently there would be no necessity to wait for the completion of the digest. A remark incidentally made by our contemporary calls for a reply. It asks, “ Is a digest of English law practicable or desirable : If it is, why did the Digest Commis: sion dissolve itself ?” The commission was constituted of busy men to act as judges of the labour of others; they found that a digest could never be made in such a manner, and they pursued the only course open to them--they dissolved.
never decreases. If, therefore, it should be found that the magnified photograph of the head of the claimant is smaller in any part than the head of the lost TICHBORNE, it would be a decisive proof by an impartial and unerring witness--nature--that the claimant was not the man whose photograph was taken seventeen years ago. Sufficient of the forehead of the young Baronet is visible under the hat to enable a very accurate measurement to be made of the comparative shape and size of the two foreheads. This suggestion is made on the assumption that the photograph of the young Baronet was taken from his person and not from a picture.”
We have received a letter from the member of the Bar referred to by us last week, as having vouched for an attorney's clerk, to the Governor of Newgate, in which he writes as follows:-“I have read your vigorous strictures in last Saturday's Law TIMES, upon the “flagrant offence' committed by a member of the Bar, in stating the simple truth' (as you yourself express it), to the Governor of Newgate. It is unfortunate, however, that at the time you wrote, you had not been put in possession of the salient fact that, at the time I made the statement in question, the prisoner was already my client, having been defended by me on the first hearing of the case. In the beginning of July I was duly instructed by a solicitor to defend a man charged with the improper appropriation of several hundreds of pounds. He was remanded for a week, and during this remand the solicitor, speak. to me about the matter, remarked that he was going into the country, and that he had left the management of this case to his clerk. Soon afterwards the clerk called upon me and stated that he could not obtain access to the prisoner without either the solicitor vouching for him as his clerk, or someone else doing 80 that the Governor knew. He therefore asked me to
as being the counsel who had already appeared in the case, and as being conscious of the fact from what the solicitor himself had told me. I naturally hesitated to do it, but being ultimately convinced, in the first place, that it was essential to the prisoner's defence that he should be seen ; secondly, that as the master was out of London no one could more appropriately make the statement; and, finally, that my paramount duty was to do my best for the man whose cause I had undertaken, I made the statement. When you say that the Profession will look upon the act with disfavour because of the direct interest I had in it you draw an untrue inference. I should have defended the man on the next hearing whether he was interviewed or not, and indeed the
interest' was all the other way, as by seeing him and obtaining a clue to witnesses for the defence there was less prospect of his committal. The powerful adjectives in which you indulge are not therefore, I think, quite appropriate. The act might be indiscreet and contrary to etiquette, but even if it was so it was an act honestly done, done in the interest of my client without any selfish or personal motive whatever, and as such I am prepared to take the responsibility of it."
ADMIRALTY JURISDICTION-SHOULD IT BE
ABOLISHED: A writer of eminence on Maritime Legislation, Mr. Emil WENDT, has some remarks in a new edition of his work (Butterworth, London), which bear upon the above subject. He writes:
"I will at once admit that there was no part of the report of the Judicature Commission, dated March 25, 1869, for which I was less prepared, and the wisdom of which I must more doubt, than their recommendation to abolish the Admiralty jurisdiction, because the decisions of no courts in the British Empire have commanded such universal respect as those of the High Court of Admiralty, and I heartily concur in the protest with which the judge of that court as a member of the Judicature Commission recorded his dissent from that recommendation, and which is in the following terms, viz. :
“ (1.) I think it is not expedient to destroy the special jurisdiction of the High Court of Admiralty. That court has always administered, in peace and war, maritime international law. Io no other court has the Crown ever granted a commission of prize; and even before the issue of such commission, it has, in the opinion of Lord STOWELL, an inherent jurisdiction in these matters I may observe that the forms of pleading now in use in the High Court of Admiralty are, as nearly as possible, those which this report recommends to be genorally adopted by all courts.' In
my introduction I stated why, according to my views, this jurisdiction should be increased, and I can therefore have no reason for entering on that subject again; suffice it to say, that from my own experience I would consider it a calamity if Sir ROBERT PHILLIMORE's protest remained unheeded, and the Legislature should decree the abolition of this most renowned jurisdiction.
“ Attention has recently been called by a memorial from the Associated Chambers of Commerce to the Judicature Commissioners to the present administration of this jurisdiction, which memorial was replied to by the Registrar of the High Court of Admiralty, and is likely to give rise to further discussion. Although, undoubtedly, some matters connected with the working of the Admiralty Court are open to improvement-and here I may refer to the very able letter which my friend, Mr. W. T. PRITCHARD, addressed to the Judge of the court at the commencement of 1868, and which appeared in print-I am rather inclined to think that if the complaints of the memorialists are carefully sifted, it will be found that they might with equal or even greater injustice be brought against any other court in the United Kingdom.
· The County Courts Admiralty Jurisdiction Act 1868 (31 & 32 Vict. c. 71), the County Courts Admiralty Jurisdiction Amendment Act 1869 (32 & :33 Vict. c. 51), and the Liverpool Admiralty District Registrars' Act 1870 (33 & 34 Vict. c. 45), have, I am sorry to state, not been able to give that satisfaction--if any–which the general public anticipated, because there are few County ('ourt Judges who can readily comprehend the subject matters brought before them under these Acts, and, if they can, their time is so fully occupied with the multifarious duties devolving upon them in the different towns of their district, that one of the principal objects to be attained, viz., a quick dispatch, is out of question altogether; and finally, the expenses are beyond everything anticipated.
The very fact that, since the first of these County Court Acts became law, every session has produced an amendment or additional Act, has in itself been sufficient to prevent the Judges, registrars, &c., of these courts from becoming conversant with their duties, and it will hardly be believed that in spite of all this piecemeal legislation the cardinal necessity has been overlooked of making the courts accessible to the owners of property salved as well as to the salvors, as was the case under the 460th section of the Merchant Shipping Act.
“That under these circumstances attempts should have been made still further to extend the admiralty jurisdiction of the County Courts, and to establish admiralty registries with the same official duties as the registry of the High Court, has taken me and many others by surprise.
“What the general public really want are Admiralty Courts, sitting as in olden times de die in diem (or from tide to tiele, as expressed elsewhere), so that the hearing and determining of any cause can be proceeded with as soon as both parties have been able to collect their evidence, and to comply with such simple forms as are absolutely necessary in order to obtain complete justice ; because it ought not to be overlooked that at present the preparatory proceedings for the hearing and determination of any cause require several weeks, unless both parties are equally anxious to
A CORRESPONDENT makes a suggestion as regards evidence of identity in the TICHBORNE case. “ Has it,” he asks, “occurred to any of the professional men engaged in its conduct that there is a test of identity far better than the recollections of old acquaintances or the uncertain memories of the claimant ? Photographs of the lost TICHBORNE and of the person who presents himself as being the missing man are in the hands of the jury for comparison, and are to be purchased everywhere. There is little or no apparent resemblance between them, but then, it is said, that the thin man has become fat and age has produced its natural changes in the form of the face, and therefore nothing can be concluded from present unlikeness. True. But it seems to have been forgotten that there are nevertheless parts of the person that continue wholly unchanged by age or by fatness. The eur of fifty is identical with the ear of twenty-one. Nothing but a wound changes the shape of the ear, which almost alone of the parts that compose the hunan form undergoes no alteration in its shape from maturity to death. The ears of no two persons are precisely alike, or so like as to be undistinguishable on a close comparison. Here, then, is a test of identity supplied by nature. Let the two photographs be enlarged to the utmost size of which photography is capable; or let them be projected upon the screen at the Polytechnic with the full power of its great microscope, and then let an accurate examination and measurement be taken, not of the ear only, but of the other features least liable to change. If the ears are alike, it will be the strongest proof that they are photographs of the same man; if the ears differ, it will be almost conclusive proof that they are not of the same man. Again, thus magnified and viewed side by side, the skull also could be accurately measured. It is true that, between the ages of twenty-one and forty, the skull often undergoes slight change in shape, though very slight indeed, and therefore this would not be a conclusive test, unless the difference in shape and size should be considerable. But there is one test that would be conclusive. The skull sometimes increases, in certain parts, as age advances, but it
push matters forward, and only too often delay is one of the weapons made use of for purposes of extortion. I imagine it would be considerably more conducive to tlae general interest, if, bearing in mind the suggestion as to the improvement in the disDutch of the admiralty business, in lieu of the County Courts with admiralty jurisdiction, a certain number of vice-admiralty courts, at Liverpool, Cardiff, Falmouth, Deal, Great Yarmouth, Hull, and Newcastle-on-Tyne, were established for the purpose of exercising a jurisdiction identical with that of the High Court, for all cases which arise within a certain district attached to each of such vice-admiralty courts; further, for all cases where plaintiff and defendant are resident within such district; and, finally, for all cases where plaintiff and defendant (non-residents) agree to such jurisdiction. The territorial limits to be fixed with regard to the peculiar admiralty business which is principally expected at the particular court, and which can easily be defined. The appeal to go, as from the colonial vice-admiralty courts, direct to the Judicial Committee of Her Majesty's Privy Council.
“I have no doubt that a carefully compiled return would prove that most of such vice-admiralty courts, if not all, would be selfsupporting."
THE RIGHTS OF EXECUTION CREDITORS AS AGAINST
THE TRUSTEE IN BANKRUPTCY. The case of Ex parte Rocke, re Hall (reported on appeal 25 L. T. Rep. N. S. 287), has settled, at least for the present, the difficulties raised by the conflicting decisions of the Court of Exchequer in Slater v. Pinder, and of the Chief Judge in Bankruptcy in Ex parte Feness. We will accordingly take the opportunity of stating the law deducible from the cases decided up to this time on the important subject of the rights of execution creditors as against trustees in bankruptcy. It may be well to remind our readers that prior to the passing of the recent statute, in order to entitle the execution creditor to the benefit of his judgment there must have been not only a seizure, but a sale before the date of the filing of the petition, and this whether the seizure preceded the art of bankruptcy or not (Hutton v. Cooper, 20 L. J. 123, Ex.) That was by the operation of the 18th section of the Act of 1849. But even if these conditions had been satisfied, and both seizure and sale were prior to the filing of the petition, the execution creditor would have been postponed if, prior to the sale, he received notice of an act of bankruptcy which had preceded the seizure (Edwords v. Scarsbrook, 32 L. J. 4.5, Q.B.)
In that state of the law, the Act of 1869) was passed. It does not re-enact the 184th section of the Act of 1849, but it define la secured creditor as one having a mortgage, charge, or lien on the bankrupt's property, It contains a section-the 85th-which, with one important difference, is substantially the same as the 133rd bition of the Act of 1849. The difference is, that while in the former Act the period within which the execution is to be completed is the date of the filing of the petition, in the present Act the period is the date of the order of adjudication. The execution creditor, under the new law would, therefore, appear to have the great advantage of the period between the filing of the petition and the date of adjudication within which to complete his execution by proceeding to sale. But the 13th section empowers the court at any time after the filing of the petition to restrain further proceedings in any execution.
The first decision on the new statute which it is necessary to notice is Ex parte Todhunter (L. Rep. 10 Eq. 4:25), before the Chief Judge. There the order of events was exactly the same as in Eduards v. Scarsbrook, viz., first, seizure of non-trader debtor's goods under fi. ja. ; secondly, act of bankruptcy; thirdly, sale; fourthly, appointment of trustee in liquidation, which is the equivalent of adjudication in bankruptcy. The Chief Judge considered that sect. 95, which he interpreted in accordance with the judg. ment of the Queen's Bench in Edwards v. Scarsbrook, made the abore transaction relating to the bankrupt's property valid, and that the execution creditor was entitled to the fruits of his execution, both seizure and sale having taken place before the date of the order of adjudication or the equivalent, and the creditor having had no notice of any prior act of bankruptcy.
The Chief Judge, in calling attention to the difference in the time within which the protected transactions are to be completed in the two statutes-the filing of the petition in the Act of 1849, and the date of the order of adjudication in the Act of 1869, accounts for it by pointing to the power which the court has under the latter Act to restrain executions by injunction under sect. 13 and rule 201). He intimated that had that power been evoked in the case before him, and the sale prevented, his decision would have been different.
In Ex parte Veness (L. Rep. 10 Eq. 419), the order of erents was, first, seizure under judgment for less than 501. against a trader; secondly, act of bankruptcy : thirdly, injunction under rule 2600), restraining further proceedings under the execution ; furthly, appointment of trustee in liquidation. Here the Chief Judge held in accordance with the principle laid down by him in the previous case, and with the decision in Edwards v. Scarsbrook, as he interpreted it, that inasmuch as the execution had not been erecuted by seizure and sale before what was equivalent to the
order of adjudication, namely, the appointment of the trustee in liquidation, had taken place, the execution was not rendered valid by the 95th section. It will be observed that the Chief Judge assumed that unless the execution in that case was within the protection of sect. 95, the chattels seized under the execution vested in the trustee as being the debtor's property under the other provisions of the Act. This assumption was dissented from by the Court of Exchequer in Slater v. Pinder, the judges holding that sect. 95 had no application to the case before the Chief Judge, and that where a creditor seizes a trader's goods under a judg. ment for a sum not exceeding 501., such seizure, if prior to the act of bankruptcy, gives a title at common law which there is nothing in the present bankruptcy statute to defeat, and also that the creditor seizing under those circumstances is a secured creditor within the meaning of the Act. The last decision on this subject is in E.« parte Rocke, qe Hall (25 L. T. Rep. N. S. 287); there the order of events was: First, seizure under fi. fi. on a judgment for less than 501.; secondly, act of bankruptcy; thirdly, injunction restraining sale; fourthly, sale notwithstanding the injunction; fifthly, appointment of trustee in liquidation. The Chief Judge here held that the right of the execution creditor was stayed as from the date of the service of the injunction on the sheriff, and that the sheriff having sold in defiance of the order of the court, the execution creditor could not avail bimself of the fact that the sale had preceded the appointment of the trustee --the equivalent of the order of adjudication--but that the rights of the parties must be determined on the principle which would have applied had the sheriff obeyed the order, and sus. pended the sale. Had that been done, the case would have fallen within the rule in Ex parte Veness, and not within the rule in EU parte Todhunter. He accordingly decided in favour of the trustee. The Court of Appeal in Chancery reversed that decision, holding that Ex parte Todhunter was decisive of the question, so far as the rights of the execution creditor over the debtor's property were concerned, and that the granting an injunction could not alter those rights.
We will shortly 'state the result of these decisions in the case of a trader debtor, and of a non-trader debtor.
Rights of an execution creditor over the property of a trader debtor :-(a) Under a judgment for a sum of less than 501.- If the seizure precede the act of bankruptcy, the execution creditor will be entitled to the proceeds of the sale, whether the sale precedes the date of the order of adjudication or not : (Slater v. Piuder; Ex parte Rocke, ve Hall.) (6) Unler a judgment for a sum of 50.If the seizure precede the act of bankruptcy the execution creditor will be entitled, as in case («); for although suffering an execution to be levied by seizure and sale is in the case of a trader an acy of bankruptcy, such act of bankruptcy is not completed until sale As sect. 87 does not apply to this case, the creditor's right will have accrued prior to the vesting of the debtor's property in the trustee, and, consequently, the creditor will be entitled as against the trustee : (sects. 6 (5), 11, 15 (3.) (c) Under a judgment for a sum exceeding 501.-If the seizure precede the act of bankruptcy the execution creditor will be entitled to the proceeds of the sale, unless notice of the presentation of a bankruptcy petition or of a petition in liquidation be served on him within fourteen days of the sale, and the trader is adjudged bankrupt on that or any other petition of which the sheriff has notice: (sect. 89; Ec parte key, re Skinner, L. Rep. 10 Eq. 423).
Rights of an execution creditor oreve the property of a nontrauler debtor.-If the seizure precede the act of bankruptcy the execution creditor will, in all cases, be entitled to the proceeds of the sale, whatever the amount of the judgment, and whether the sale precedes the date of the order of adjudication or its equivalent or not. Hitherto we have been exclusively considering the case of the seizure preceding the act of bankruptcy. In the converse case of the act of bankruptcy preceding the seizure the execution creditor will be entitled to the proceeds of the sale only under the following circumstances, namely, where acting in good faith he has sold as well as seized before the date of adjudication, without notice of an act of bankruptcy on which his debtor could be adjudicated (sect 95, sub-sect 31). This rule, however, will not be a sufficient test in cases falling within the 87th, 89th, and 92nd sections of the Act. In other words, if the debtorshonld be a trader,and thejudgment be for a sum exceeding 501.,the creditor will only be entitled where the requisites of the 87th section, as well as of the 95th, have been complied with. And whether the debtor is a trader or not, if the seizure could be shown to be concocted between an insolvent debtor and the creditor for the purpose of preferring the execution creditor to the general body of creditors, it is probable that the execution could be successfully im. peached by the trustee under the 92nd section, even although notice of an act of bankruptcy could not be brought home to the creditor.
The recent decision is important also in its bearing on the construction of the Act. It follows --and all the local bankruptcy courts will do well to note the fact--that sect. 95, sub-sect. 3, applies only to the case where seizure is subsequent to an act of bankruptcy. It follows also that for all practical purposes the word “execution may be struck out of sect. 13 and the corresponding rule. We say for all practical purposes, because
seizure under an execution is the only means the general body of creditors have of knowing the existence of the process. But if the execution creditor acquires a right of property by seizure before act of bankruptcy, whether as being a secured creditor or for any other reason, and the court has no jurisdiction to interfere with this right, both of which propositions are contained in the Lord Chancellor's judgmentit is difficult to see under what circumstances the court can be called upon to exercise its power of restraining executions under sect. 13. For in the case of a seizure subsequent to act of bankruptcy any good which an injunction could effect would be effected by service of notice of the act of bankruptcy before sale, while the determination of questions between different judgment creditors which the Lord Chancellor considers the object of this part of sect. 13, is already and more effectively provided for by sect. 72: (Ex parte Anderson.) On the whole the present current of decision is highly favourable to individual creditors, and highly unfavourable to the general body of creditors. The individual judgment creditor has acquired by the interpretation which the Court of Appeal in Chancery has given to the Act, a status more advantageous than he has possessed any time since the year 1849. Whether this was the intention of the Legislature or whether the construction now adopted is warranted by the language of the Act is not the present question. The advice which we give to all creditors is—“ Sue your man quickly if you have any doubt about him ;” to those interested in the due administration of bankrupt's estates we should recommend an early appeal to the House of Lords.
THE PREVENTION OF CRIMES ACT. THE Prevention of Crimes Act, which came into operation on Thursday last, the 2nd inst., although, to a great extent, a reenactment of the Habitual Criminals Act 1869, contains, nevertheless, many important alterations of the law as it has existed under the last-mentioned statute, and develops even to a still greater extent than its predecessor the feeling with regard to criminals, and especially to habitual criminals, which has of late years become somewhat popular. The Habitual Criminals Act ceased, it is true, to exist on the day on which the Prevention of Crimes Act came into operation, but the nature and principle of the two Acts are the same, and the opinions of those who advocated the first introduction of the one measure find the most adequate expression in the other.
That the Act which has just come into force, belongs to the class of exceptional legislation, a glance at its provisions will be enough to show. Such being the case its nature and the theory on which it is founded, cannot be too well understood by the public generally, or its enactments be too carefully studied by those persons upon whom may be cast the duty of enforcing them. The object which the promoters of the Act in question are supposed to have in view is, to concentrate all the habitual criminals of the country into a condensed criminal class,” in order that they may be more effectually controlled and constrained, and these habitual criminals, as they are termed, are regarded not only as so essentially dishonest but also as so irreclaimably criminal, that a departure from the ordinary and well-known rules of procedure and of evi. dence in criminal cases may, it is thought, be justified in dealing with them. That a man shall be deemed to be innocent until he is proved by legal evidence (which, we take it, means legal evidence of fact as regards the alleged offence) to be guilty, is a well-known principle of the law of England, but as regards the class now denominated habitual criminals, even this principle will, to some extent, be invaded, and the accused will be called upon to meet a presumption of his guilt raised against him by the evidence which will be admissible under the special law which has been introduced. In thus enabling a prosecutor to dispense with evidence, the advocates of the new law see no hardship. "A man" it is said,“who has committed several crimes falling under the denomination of felony, may fairly be called upon to prove that he is living by honest means; and, if he cannot prove it, should be sentenced to imprisonment. He will have all the other guarantees of justice possessed by the innocent man-an open court, a public hearing, and complete publicity; but, on the assumption that he has once been proved a criminal, he will be put upon his proof that he is no longer so." Under the Act in question any person who is convicted of a crime, as that term is defined by the interpretation clause, and against whom a previous conviction of a crime is proved, is at any time within seven years immediately after the expiration of the sentence passed on him for the last of such crimes, to be guilty of an offence against the Act, and to be liable to imprisonment, with or without hard labour, for any term not exceeding a year, if, on his being charged by a constable with getting his livelihood by dishonest means, and being brought before a court of summary jurisdiction it appears" to the court that there are reasonable grounds for believing that he is so getting his living; or if, on being charged with any offence punishable on indictment or summary conviction, he either refuses, on being so required by a court of summary jurisdiction, to give his name and address, or gives a false name or a false address; or if he is found in any place, whether public or private,
under such circumstances as to satisfy the court before whom he is brought, that he was about to commit or to aid in the commission of any offence punishable on indictment or summary con. viction, or was waiting for an opportunity to commit or aid in the commission of any such offence; or if he is found in or upon any dwelling-house or other specified premises, without being able to account to the satisfaction of the court before whom he is brought for his being found on such premises.
By far the most remarkableand most stringent provisions of the Act, however, are those which relate to the amendment of the Vagrant Act (5 Geo. 4. c. 83), and to the evidence which may be adduced by the prosecution in cases of receiving stolen property. The Vagrant Act provides that every suspected person or reputed thief frequenting certain places which it mentions, with intent to commit a felony, shall be deemed a rogue and a vagabond, and may be apprehended and committed to prison for any term not exceeding three calendar months, and the new Prevention of Crimes Act, re-enacting a provision of the Habitual Criminals Act, provides that, “ in proving the intent to commit a felony, it shall not be necessary to show that the person suspected was guilty of any particular act or acts tending to show his purpose or intent, and he may be convicted, if from the circumstances of the case and his known character as proved to the justice of the peace or court before whom or which he is brought, it appears to such justice or court that his intent was to commit a felony." This provision fairly exemplifies the spirit which runs throughout the Act, but the following is equally novel and exceptional, and even noticeable, inasmuch as it is applicable to graver charges and is likely to be brought into more frequent operation. “Where any proceedings,” says the Act, "are taken against any person for having received goods knowing them to be stolen, or for having in his possession stolen property, evidence may be given at any stage of the proceedings that there was found in the possession of such person other property stolen within the preceding period of twelve months, and such evidence may be taken into consideration for the purpose of proving that such person knew the property to be stolen, which forms the subject of the proceedings taken against him.” The effect of this provision must be, it will be seen, to throw upon the accused person the burden of substantiating his innocence, and eren to place him at an additional disadvantage in doing so, by raising the presumption, or rather the impression, of guilt against him, as eridence of the kind indicated by the provision may be given at any stage of the proceedings. Habitual criminals may be great enemies of society, and may be as difficult to deal with as they are represented to be by the advocates of this exceptional legislation, but to the minds of those who are acquainted with the rules of proce• dure and of evidence in criminal cases as they have hitherto existed in this country, and who are capable of weighing the prin: ciples upon which they were established, the question can hardly fail to present itself whether we are justified in employing the very means and in adopting the very course against a man who has once been convicted of crime, in order to better secure a convic. tion, which the law has always most carefully and stringently prohibited in the case of a man against whom nothing of a criminal nature was previously known. Had it been shown that the Habitual Criminals Act had really produced a diminution in crime there would have been at least some ground for continuing the peculiar legislation which it inaugurated; but, as the case now stands, the Act to which we have ventured briefly to call attention cannot well be either too cautiously enforced, or too closely watched, in its operation.
LAND LAW REFORM.
“IV. MORTGAGES. “No practical difficulty exists in the paying off of a mortgage beyond this, that it usually requires a reconveyance, and sometimes there is difficulty in discovering who is entitled to receive the mortgage money. The word difficulty in real property law always means costs. The first might be remedied by an enactment that the indorsement of a receipt upon the mortgage deed or instrument of charge, shall operate as a reconveyance of the estate thereby conveyed, and a discharge of the estate from all claims under the mortgage, and the latter might be provided for by the same machinery as is suggested for the estimation, receiving the value and distributing the proceeds of other charges.
“V. CONVEYANCING. “The costs of conveyancing, so much complained of, are almost entirely due to the difficulties caused by the preceding defects in the law of real property. So long as any charge whatever is permitted to be imposed upon land—that is to say-so long as the law allows a man to have any interest in real property other than actual possession, there must be an investigation into title preliminary to sale. If A. sells a bale of cotton to B., he passes it directly from his own possession to that of the buyer, and that
particulars as to the actual position of landholding in the United Kingdom might be gathered, without which no legislation can be satisfactorily conducted. The poor-rates supplemented by the registers of voters would supply the number, the extent and the rental of every separate estate in real property, and also what are occupied by the owners, what by tenants. A few weeks would suffice for the collection of this information, and it would be derived from sources open to no suspicion, because it is already collected for public purposes, with vigilant eyes upon it, by competent officers, having full knowledge of value in their localities. As Land Law Reform must soon become a question for discussion in Parliament, I venture to suggest to the Government the propriety of immediately providing these statistics, so needful alike for legislation or for debate.”
possession is good against all the world, provided that A. had honest possession of it. The only exception to this rule of passing the property by delivery is in the case of stolen goods, an exception which pawnbrokers often discover to their serious loss. But if the owner of a bale of cotton were permitted to carve out several interests in it, as that C. should have it for a term of weeks, or D. for life, or to charge it specifically with payment of commissions to E. F. and G., present or future, or even to children bom of these three letters, at once there would arise the necessity for an investigation of the title of the vendor, so as to be assured that he has a right to sell the entire bale, freed from all claims by others. If one such claim be found to exist, that claim must be released before a purchase could be safely made. But it would happen often that the claimant could not be found. He went to a colony, and has not been heard of. His death must be proved, or, if living, his consent to the transfer must be obtained. And so the complication grows, with ever increasing cost and vexation, to which the Statutes of Limitation offer but an imperfect impediment.
“This is the actual position of real property. It is already what the bale of cotton would be in the case supposed. And to make the matter worse, this process of costly inquiry is in no way dependant on the value of the property conveyed. On the contrary, small properties are more frequently mortgaged, charged, and sold than large ones. A guod marketable title, that is to say, such an one as a person contracting to buy land would be eompelled to take, is as necessary to the sale of a cottage worth 40s. a year, as to an estate of 40,0001. a year, and the burden of inquiry, of requisition, of proof, of precluding claims actual and possible, and removing charges, is imposed upon the buyer and seller of a cottage equally with the buyer and seller of a county. They who talk so glibly in speeches, and wax so eloquent at land leagues, on proposals for making the transfer of land as easy and inexpensive as the transfer of a bale of cotton, are wholly ignorant of the true causes of the difficulty which nobody denies. One looks in rain through the essays and speeches even of the most philosophical of Land Law Reformers for a practical remedy for the grievance of which they complain. In point of fact, they hare none, and, under cover of a desire to retorm the existing law, they are seeking its entire subversion. Their cry is for more easy transfer, in which all reasonable men are with them, asking only for a rational and really practicable scheme for simplifying and cheapening the transfer of real property; but their real aim is to change its tenure. For a working plan of the Land Law Reform which all would welcome, and none more than the owners of real property, who are the only persons whom the existing system oppresses, resort must be had to the experienced lawyer in his chambers, and not to the philosopher in his study.
“ Turning, then, to the practical lawyers, how would they propose to cheapen conveyancing. The reforms suggested in the preceding portion of this paper would do much towards abbreviating the proof of title, and especially the proposed power of discharge. By help of this provision the statutes of limitation might be further extended. But that which most of all would abbreviate the labour and cost of title-making would be a compulsory register of incumbrances of all kinds. All claims on real property, unaccompanied by actual possession, ought to be registered in the locality, either in the county or in the union in which the land so charged is situate. The actual possessor of real property is always known, for his name is in the rate book, his acts are public. But a man who has an interest in an estate, but only in contemplation of law, and not by any ostensible holding of it, or of any parts of it, but only, as it were, metaphysically, is surely subject to no injustice or even hardship if compelled to give a local habitation to his ideal rights over a substantial property by registering them where their existence may be instantly ascertained by all who have occasion to deal with the substance of that property. A register of actual transfers of the estate itself would be useful; but infinitely more important is the registration of all charges, not accompanied with actual possession. This alone would reduce the cost of transfer of real property by threefourths, for at least that portion of the entire costs proceeds, as I have shown before, from the necessity for research into the existence of charges and incumbrances. But the law to be effective must be peremptory. No charge whatever must be permitted to be valid unless registered.
“ Some very slight diminution of cost might be produced by the abbreviation of conveyances, and especially of mortgages. They are shorter now than formerly, but they would endure a good deal of clipping still. All the usual covenants might safely be declared to be implied from the nature of the conveyance, unless expressly excluded. It might be enacted that a mortgage shall imply all the usual powers of sale, &c., unless expressly excluded, and so forth, and that no charge for such covenants shall be allowed in a bill of costs. But the smallest portion of the expenses of a transfer are those of drawing and engrossing the conveyance.
The real burden, as I have said before, is the inquiry into title.
“ Lord DERBY suggested, as the best foundation for future reforms in Real Property Law, the construction by a qualified commission of a new Domesday Book. The idea is admirable, and ought to be adopted. But it would be a work of time, and in the meanwhile there are sources of information from which valuable
JUDICIAL STATISTICS, 1870.
(Continued from page 422.)
COUNTY COURTS—(continued). The number of plaints entered in 1870 shows a decrease of 28,044, or 3:0 per cent. as compared with the number in 1869, and of 43,075, or 4'4 per cent., as compared with the number in 1868. There is also a decrease of 29,590, or 31 per cent., as compared with the number in 1867, but an increase of 39,752, or 4-5 per cent., as compared with the number in 1866.
The number of days of sitting for the whole of the circuits was 8085 in 1870, exceeding the numbers in 1869, 68, and 67, by 176, 98 and 192 re. spectively. The number for 1870 gives 64:7 causes for each day of sitting, calculating on the total number of causes determined. This average was, for 1869, 68:5, ; for 1868, 71:7; for 1867, 68:7; for 1866, 62:1 ; for 1865, 57 1. The greatest number of days of sitting on any circuit in 1870 was 322, on circuit No. 6, for which there are two judges; the greatest number for a single judge was 182 days, on circuit 33; the lowest, 89, on circuit No. 5, against 271, 176, and 88 on the same circuits respectively, the highest and lowest numbers in 1869. The highest average number of causes determined on each day of sitting was 160, on circuit No. 5; the lowest 32, on each of the circuits Nos. 32 and 53. In the preceding year the highest average was 169, on circuit No. 5; the lowest 28, on each of the circuits Nos. 28 and 33.
The causes determined in court were in the proportion of 573 per cent. to the total number of plaints entered, leaving 42:7 per cent. as the propor. tion settled out of court. In 1869 these proportions were 58-6 and 41:4; in 1868, 58:5 and 41:5; in 1867, 57:5 and 42:5; in 1866, 559 and 44:1; in 1865, 55:4 and 44:6; in 1864, 56:4 and 43:6; in 1863, 55:3 and 44:7, respectively.
Of the judgments given, 96'6 per cent. were for the plaintiff, 1.6 per cent. were nonsuits, and 1.8 per cent. were for the defendant ; in 1869 the proportions were the same. İn 1868 96:9, 1:5, and 1.6; in 1867, 96:6, 1-7, and 1.7; in each of the years 1866 and 1865, 96:2, 1:9, and 1:9; in 1864, 95-9, 2:1, and 2:0.
The number of debtors imprisoned gives one for 138.3 of the number of plaints entered, with the cases sent from the Superior Courts included. In 1869 the proportion was one for 95:8; in 1868, one for 101 ; in 1807, one for 112; in 1866, one for 115; in 1865, one for 123; in 1864, one for 113 ; for the average of the years 1859-63, one for 95.
The amount for which plaints were entered in 1870 shows an increase of 22,1971. as compared with the amount for the preceding year, following an increase of 45,4321. in 1869 on the amount for 1868, and an average increase of 243,3411. in each of the three years preceding 1868. The average for each plaint entered in 1870 is 21. 17s. ild., against 21. 16s. Ad. in 1869, 21. 128. 10d. in 1868, 21. 6s. 7d. in 1867, 21. 78. in 1866, and 21. 7s. 2d. in 1865.
The amount of debt for which judgment was obtained on original hear. ings in 1870 is 49:9 per cent. of the total amount for which plaints were entered. In 1869 this proportion was 50:5 per cent. ; in 1868, 51:3; in 1867,
; 52-2; in 1866, 51:1; in 1865, 50-2; in 1864, 55:7.
The amount of costs in 1870 shows an increase of 20451. on the amount for 1869, following an increase of 16551. in 1869 on the amount for 1868, and an average increase of 69671. for each of the three years preceding 1868. The costs are 4:7 per cent. of the amount of debt for which judgments were obtained on original hearings in 1870, against 4-5 per cent. in 1869, 4:4 in 1868, and 41 in each of the years 1867 and 1866.
The amount of fees in 1870 shows a decrease of 46491. as compared with the amount in 1869, there having been an increase of 29191. in 1869 on the amount for 1868. following an average increase of 32,2331. for each of the three years preceding 1868.
Equity jurisdiction. The following are the totals, under the different headings in the returns, of the proceedings in equity in the whole of the County Courts : Total number of equitable suits or proceedings.
132 Number of instances of payments by trustees under sect. 24 of 30 & 31 Vict. c. 112
1 Amount of subj.ct matter in dispute or otherwise
£87,804 Amount of attorneys' costs allowed
£48 19 Amount of fees Payable to Consolidated Fund
£1.15 hi h bailiffs
£654 Number of suits or proceedings pending on the 31st Dec.
217 Number of appeals
5 Numbers committed for contempt Number of warrants of execution, possession, &c...