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perty equal to their respective separate debts of £1000 each, and £2000 joint debts, £13 of joint property would make all the difference whether the joint creditors got 10s. in the pound or three-halfpence! A more purely arbitrary rule it is clearly impossible to conceive. But no rule can be thus arbitrary without becoming an incentive to speculation and fraud. Where the joint creditor knows the joint property to be deficient, but believes the separate estate to be solvent, it may become his actual interest to connive at the wasting or concealment of the remnant of the joint assets, in order to be able to prove against the separate estate. The adoption in all cases of the mercantile rule would secure his looking after every penny of each estate ; the partial adoption of it incites bim, under given circumstances, to help in destroying the one that he may clutch the other.

But now let us see the consequences as between partners themselves, where a separate adjudication takes place, for the time being, against one only. Here, by s. 140 of the Bankruptcy Act, joint creditors are entitled to prove, for the purpose only of voting in the choice of assignees, and of being heard against the allowance of the bankrupt's certificate, or of either of such purposes; but are not to receive dividends out of the separate estate, until all the separate creditors are paid in full. What is the result? That so long as the joint creditors see any chance of recovering their debts against any other partner, they will never take any trouble to move in the separate bankruptcy. The separate adjudication secures at once to the bankrupt a quasi limited liability against his trade demands. He may have plunged the firm in ruin by his speculations; but if he can succeed in struggling on till his separate estate is no more than equal to his separate liabilities, no joint creditor has the slightest interest in meddling with his bankruptcy. His last week's champagne bill for his Hornsea villa takes now absolute precedence of his acceptances, his orders, for the most necessary transactions , of the firm, as respects any property which he may not have brought into partnership.

But suppose he has been skilful enough to protract the

moment of bankruptcy till he has both run through all his separate property and all the joint property of the firm ? Why, then, no one will bave any interest in meddling with him, who is allowed to do so. Let him get a friendly creditor to petition against him, and he stands the fairest possible chance of coming out whitewashed, with a first class certificate. Few creditors will throw good money after bad. If his separate assets are nil, and his joint assets nil also, an angry separate creditor had better resort to that sort of "action at law” (viz., a good drubbing), which is described by Miss Ursula in the “Rommany Rye,” than to any idle proceedings in Bankruptcy ; a wise joint creditor will quietly bring his action at the first opportunity against the other copartners.

Could this take place if the principles of mercantile account were admitted ? if the claim of the firm as a creditor against the separate estate of the partner were capable of proof? Surely not. The persons most anxious of any to prove would be the copartners, as liable equally with the bankrupt, and thereby interested in getting as much out of his separate estate as possible. Now, it is well known, the right of partners to prove a debt against a copartner's estate arises only when all the joint debts are paid. They may have been plundered to any extent by the bankrupt; deceived by any amount of false representations; their mouths are shut. They must discharge, without a murmur, all the debts which, as managing partner perhaps, the bankrupt has contracted in their name; -or even if they deem themselves entitled to a defence against his scheduled joint creditors, they must remain under the burthen of possible liability—whilst they see his separate estate, if he has any, handed over to the tradesmen, the friends, the Jew money-lenders, who have countenanced and fostered his private extravagance-or himself, if he has none, and the firm itself be insolvent, come out smiling from the Court with an unopposed certificate.

I am drawing no ideal picture. I know a case familiarly, in which a man, having enticed others into partnership under the falsest pretences, lived for years upon their capital as managing partner, involved them in a grievous load of debt; and when at last they neither could nor would any longer supply him with capital to carry on his ruinous speculations (his own, if he had any, never having been forthcoming), procured a separate petition to be presented against him, and has lately quitted the Bankruptcy Court with a certificate, which happened to be only of the second class, because his partnership accounts were in the hands of a third party who claimed a lien upon them. It was the interest of no creditor, separate or joint (half of them were his confederates), to oppose him. It was vitally the interest of his copartners to do so, but they could not be heard. Had they been heard, the grant of his certificate would have been impossible. They have not been heard ; and a man whose conduct has been as flagitious as that of any British Bank secretary or director, goes forth clear of debt, with his unopposed certificate, to find new victims to plunder. Slowly and piecemeal, through the harassing process of litigation with individual creditors, will the facts come out, if at all—the partners meeting at each turn with the certificated bankrupt as a witness for the plaintiffs, and being actually shewn up to the world in his balance-sheet as his debtors, when he has lived upon their capital for the last ten years. Now, it is well known to those who have any experience of Bankruptcy matters, that in Bankruptcy the biggest rogue has the best chance ; for the simple reason, that where a man has nothing, and is known to have nothing, it is worth nobody's while to oppose or molest him there. It is difficult to see how this can be avoided in the case of individual traders, unless by throwing the expense of opposition, in cases of insufficient assets and proved delinquency, upon a general fund. But by refusing to recognize the claim of the firm upon the partner, and thereby to hear copartners before all joint debts are paid, the law deliberately throws awuy a means ready to . its hand of discovering truth, and giving roguery its due reward ; and, instead thereof, affords to it the benefit of a judicial whitewashing (a).

(a) If it be asked-Bat is it not the official assignee's business to see that no certificate be wrongly granted? The answer is a simple one. He is paid out of the bankrupt's estate. If he has none, the official assignee can havo no greater wish than to see the last of him.

Such, I believe, will always be the result when the law, forgetting its distributive character (vokos), as the apportioner of justice to the wants and habits of mankind, attempts to impose itself on them as a dry despotic system, and to shape society to its own commands, however blundering. Not, indeed, that many of the mischiefs which I have pointed out might not be removed by other expedients than the adoption of commercial theory in a matter of commercial law. Those arising out of separate bankruptcy to copartners, for instance, might be obviated by simply allowing them to examine a bankrupt copartner, and oppose his certificate. But even if all such mischiefs could be remedied in like manner, surely there is a most important difference between the reaching the same results as the natural and logical consequences of a broad, intelligible, and practically understood principle, and the securing them by arbitrary rules or enactments. So far as we follow the former process, we raise law to the dignity of a science; so far as we cling to the latter, we debase it to a low empirical art. In the one case it tends healthily to develop the minds, not only of its students, but of all who come under its influence; in the other, to become a mystic juggle, practised by means of certain formulæ known only to the initiated. I can conceive of no highly organized state of society in which the practice of the law shall not require to constitute a profession in itself; but so far from the value and individuality of that profession being impaired by a simplification of the law, by a careful adjustment of its principles and procedure to the wants of society, I believe they are always heightened by this means. The great Roman jurists do not belong to the age when the sacramental forms of law were the freemasonry of the patrician; the great English jurists will not belong to one in which the routine of procedure is allowed to take precedence of justice and of commonsense. I say common-sense, rather than reason or logic; because in the instance before us particularly, common-sense only was needed to shew that trade partnerships had a right to be treated in law, not on the footing of what the law chose to consider them, but upon the footing of what they were in

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themselves. The firm is a reality in all commercial transactions, whether the law acknowledge or ignore it; and if the law cannot deal with realities as such, it only shews how unreal it is itself, how devoid of secure foundation in social necessities, how liable to be swept away by the caprice and petulance of the legislature of the day. The many half reforms of our time, undoing as much as they do the many sham reforms, which only turn the wheel noisily under the squirrel's paws without helping him on one inch on his way-proceed at bottom from this, that men in general do not care for the law, because the law has not cared for them. Like every other true master, it must serve to rule, and can only rule while it serves. Arbitrary laws-laws which are not adapted to the habits and tendencies of the community-are like a mere succession of despots, with their lives always at the mercy of the mob.

June 26, 1857.

IV.--THE POINT OF LAW INVOLVED IN THE CASE

OF REG. v, BERNARD.- By FITZJAMES STE-
PHEN, Eso

[Read 26th April, 1858.]

The acquittal of Simon Bernard at the Old Bailey, has postponed indefinitely the final settlement of a very curious point of law, which may be thus stated :

A. B., an alien resident in England, concerts, with other aliens, the assassination of an alien in a foreign country, and provides them with the means of effecting it. The assassination being committed, can A. B. be tried in England as accessory before the fact to murder? This question resolves itself into two branches. First, is there any jurisdiction to try him, assuming that he has committed a crime; and secondly, has any crime been committed of which an English

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