There is a useful chapter "of the evidence in claims before the valuer or assistant commissioner," and the question of encroachments has received attention. A curious point has been offered in the chapter of evidence. The extent of the right being measured by the ancient inclosures, i.e., the wintering of commonable beasts: does the 5th section of the Act 8 & 9 Vict., c. 118, enable the valuer to reject a sixty years' claim which is founded upon a surcharge? In other words, admitting the right to a certain extent, will a constant trespass work itself into an indefeasible privilege after the lapse of that period? "No case has yet been decided by the courts upon the construction of this section of the Act; but the assistant commissioners have held that a right claimed under it must be a legal and a limited right.”*

The gist of the matter is in the word "right." The words of the 2 & 3 Will. IV., c. 71, are, "where such right, profit, or benefit shall have been actually taken and enjoyed by any person claiming right thereto." There must be an enjoyment as of right, and although there may not have been an absolute determination upon the point, the authorities are strong in favour of the views assumed by the assistant commissioners. If a commoner should be found to have usurped a right in respect of a messuage and land, which element will confer the legal privilege, he cannot be molested after thirty years user; but if he should have intruded on the waste, and upon investigation his claim should be for common appendant or appur tenance, without the messuage, &c., any user he may have enjoyed ought not to weigh against the words of the statute, "nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated." To maintain a legal right by usurpation by virtue of an act of the Legislature, is very different from assuming a right which has no foundation at all, and which, therefore, cannot come within the scope of the remedy. A surcharge does not negative the limited profit, but if such an excess were to be sanctioned

*P. 105, n.

after sixty years, a principle would be sustained which neither the common law, nor the prescriptive Act, nor the Inclosure Acts, could warrant.

The jurisdiction of the Inclosure Commissioners with reference to commons has not been forgotten. For instance, as to exchanges, partitions, intermixed land, drainage, rent-charge. The author rightly observes, that the drainage jurisdiction is foreign to the original purpose of the commission,* and to the scope of his work. Yet having introduced the Acts 9 & 10 Vict., c. 101., 12 & 13 Vict., c. 100, and 13 & 14 Vict., c. 31., he might, perhaps, have adverted, however slightly, to the statute, 24 & 25 Vict., c. 133, an important code as to recent agricultural drainage and commissions of sewers, and the more so as the Inclosure Commissioners have, by it, another trust confided to them; the issuing with their sanction new commissions of sewers. It is true that the Act has but little connection with commons, but as we find in the title page "The jurisdiction of the Inclosure Commissioners (amongst other things) under the Public and Private Money's Drainage Acts and under the Companies' Acts relating thereto," we may be pardoned if we just allude to this Drainage Act of The Inclosure Commissioners are important officers under the Act, for, upon their recommendation, commissions of sewers may be granted for new areas, regard being had to the levels and other facilities of drainage, or for an area wholly or partially within the limits of an existing commission. The powers of present commissioners are saved, and the Queen's power to issue commissions is expressly saved. Nevertheless, the change is of a very striking character, and it will probably lead to consequences requiring fresh labours from Commissioners of Inclosure. For they are already provided by this Act with considerable powers in forming the new areas. The subsequent division of the Act provides

1861.

*That is the Inclosure Commission.

† P. 148.

See the early clauses of 24 & 25 Vict., c. 133,

for the appointment and arrangement of Electoral Drainage Boards, but with these we have no concern, although we will conclude our remarks with this observation of Mr. Cooke: "Like other provisions which have the effect of allowing land owners with limited estates to let their lands upon equitable terms, or to improve their cultivation, they are very beneficial in their operation, and it is well that the power should be known to exist."*

Without an appendix of forms a work is considered incomplete. We have here a copious list of forms. They are ever acceptable to the practitioner, who, if he be a practised lawyer, takes all forms, statutable or otherwise (not being imperative), as guides, not as masters.

We now take leave, for the present, of the commissioner, whose office is the reward of his knowledge and his labours. When a treatise has arrived at its fourth edition, a guarantee for its value is revealed which needs no other record than a kindly remembrance to the public of its appearance. We may not agree with every sentence of the commonable discussions, but we regard the whole as a work of considerable utility, not too short, so as to raise a suspicion of want of care, but sufficiently explicit to win the watchful reader to the belief that he has found the chief points he has been looking for, well and lucidly explained.

ART. VII.-JUSTICES' OF THE PEACE PROCEDURE BILL.†

THE object of this Bill is "to consolidate and amend the Acts regulating procedure before Justices of the Peace out of Quarter Sessions in England," and its preamble succinctly recites that "it is expedient to reduce into one Act

*P. 148.

Brought in by Mr. Paull, Mr. Richard Hodgson, and Mr. Staniland, 8th June, 1864.

the existing enactments regulating the procedure before Justices of the Peace out of Quarter Sessions in England, to simplify and amend those enactments and the forms of such procedure, and to provide uniform Tables of Fees to be taken by Clerks to Justices and Constables." It is understood to have been prepared by Mr. Oke, of the Mansion House justice room, whose works upon this extensive branch of the law are in universal use, and to be framed in accordance with the valuable paper upon the subject read by him at the annual meeting of the National Association for the Promotion of Social Science, held at the Guildhall, London, in June, 1862, and published in the Transactions of the Association for that year. In that paper we repointed out the numerous practical defects in the present procedure before justices in England, with suggestions of the fitting remedies; and after remarking that the procedure is principally regulated by Jervis's Act, 11 & 12 Vict., c. 43, passed in 1848, which, although it effected many improvements in the practice, fell very short of what it professed to be, a consolidation Act, and did not give that facility to the justices in the exercise of their increasing duties, which was expected; the author says

*

"It does not create a uniformity of practice, for it exempts from its operation so many offences and matters to which some, if not all, of its provisions might advantageously have been applied, and contains in every fourth or fifth section some exception or proviso as to portions of procedure supplied by other enactments, which should have been repealed, that its utility is much impaired ; it being in fact and practically of limited operation, and, in many cases, only of a cumulative character, thereby creating confusion and uncertainty in the application of its provisions, as the questions submitted to the superior courts from time to time abundantly testify. It has likewise in many cases of modern legislation been referred to as the Act containing the procedure, without due consideration of the

66

* Page 146. Magisterial Procedure: Reasons for its Revision, Simplification, and Uniformity." By George C. Oke, of the Mansion House Justice Room, author of "The Magisterial Synopsis," and other legal works. Reviewed L. M. and R. August, 1862, page 367.

nature of its provisions, to many of which it was never intended to apply, and, as respects others, it provides no adequate machinery to carry out; whilst many statutes passed afterwards, to which it would have applied, have, regardless of the procedure provided by it, embodied similar clauses to those in it on procedure, and others have contained new and unnecessary enactments, applicable, in some instances only partially, to the steps taken in the same class or description of cases. As an illustration of recent date-in four of the important Criminal Law Consolidation Acts of the last session, there were upwards of twenty clauses as to procedure which are unnecessary, or were already law and enacted in almost similar terms in the 11 & 12 Vict., c. 43, which is also specially, though unnecessarily, referred to in those statutes, and which clauses would have been more appropriate in a Consolidated Procedure Bill, and must be repealed when such a measure is brought before Parliament. In confirmation of this view, it is considered necessary in this present session, by a Bill promoted by the Government,† to amend these four Acts in regard to Ireland, by enacting that certain provisions in them as to procedure for offences punishable summarily should not extend to Ireland, which had already a better and more comprehensive code of procedure, provided eleven years since, in the 14 & 15 Vict., c. 93, which is admirably suited to the petty sessions courts in that part of the kingdom (and which the officials there do not, I understand, desire to see altered), and is three years later in point of time than our own incomplete measure, the defects in which were avoided although in England the summary jurisdiction is far more extensive and important."

The defunct Statute Law Commission, in March, 1857, gave instructions for the preparation of a Consolidation Procedure Bill, and it was partially proceeded with by Mr. Macnamara under the direction of Mr. Greaves, Q.C., but ultimately abandoned; Mr. Greaves, however, in the Introduction to his edition of the Criminal Law Acts of 1861 (pp., xxviii and xxix), expresses his regret that such a Bill had not been passed before the latter Acts were prepared, so as to simplify their procedure clauses. Ireland, as above observed, had * 24 & 25 Vict., c. 96, 97, 99, & 100. † Now 25 & 26 Vict., c. 50.