« PreviousContinue »
It appears to us incumbent on Lord Brougham to have a material amendment made in his “Evidence of Parties Act.” That important statute has one manifest defect, in the exception of cases of adultery; and there seems no reason for retaining that exception. This improvement of our judicial procedure has had such extensive and such beneficial effects, that there is every reason for desiring its application to proceedings in divorce. The court has the power of examining the petitioner, which the House of Lords had, though seldom exercised. But if the party could tender his own evidence, it is plain that, where he declined doing so, the court would at once have its suspicions awakened. It might also be fit that the wife and the paramour should be examined ; and, without such sifting, it is impossible to say that all the means have been taken to demonstrate the case. i
One of the most unfortunate things in the proceedings of the court, is the great number of cases in which the whole matter rests upon the verdict of the jury. This is to be regretted on two grounds—-first, the subject is, in many cases, partly law and partly fact, as condonation ; but next, the case turning upon the verdict, and no new trial ever being granted unless the judge is di<satisfied with that verdict, the practical result is, that unless some suspicious ‘circumstance calls the attention of the full court to the cause, a divorce is granted by a single judge with a jury, and not by the full court. It is observed by Mr. Macqueen, to whose able and learned works, both upon this particular subject and upon the House of Lords’ practice the profession is so deeply indebted, that in Scotland, no more than in France, is divorce tried by jury. When that mode of trial, in civil cases, was extended to Scotland nearly fifty years ago, thewhole jurisdiction in cases of divorce was left in the hands of the judges; first of the Commissaries, or Ecclesiastical Court, and then of the Court of Ses~ion, which has succeeded to their jurisdiction. He adds that there have scarcely ever been appeals from the sentences in these cases.
It is to be regretted that the divorce court should have adopted the rules as to costs of the courts in Doctors’ Commons, because some of these rules are very objectionable _: as that \vl1i¢h enables
a wife to have her costs taxed de die in diem, and all proceedings on the husband's part are stayed until he pays. One case is cited in which the wife took out a. commission to examine witnesses in Italy. The whole of this was a sham ; the bill of costs, however, was no sham; it amounted to .£°l50, which the husband had to pay before he could proceed, the suit being suspended until payment.
We call the attention of our readers to these matters, in the hopes that the whole subject will be fully considered by the legislature early in the next session. We have ever
been steady friends of the measure, which vested in a court of
law the anomalous jurisdiction before exercised by parliament; but we feel confident that, unless the defects pointed out are removed, and unless some further judicial power is given to the new tribunal, so as to make the full court in practice what the act of 1857 intended it to be, the real authority for examining the case of divorce, and for dissolving marriage, the objections urged against the act will be renewed, with the additional force which experience may be supposed to have given them.
1. A Lecture on the Amendment of the Bankruptcy and Insolvency System. By EDWARD BOND, Solicitor. Leeds: Edward Baines & Sons.
2. A Letter to the Lord Chancellor, containing Practical Suggestions on the Law of Bankruptcy. By EDWARD LAWRANCE, Member of the Council of the Incorporated Law Society. London: Hamilton, Adams, & Co.
3. Articles reprinted from the Solicitors’ Journal. By JOSEPH R-AYNER, Solicitor and Secretarylto the Huddersfield Chamber of Commerce. London: W. Draper, Solicitors’ Journal Office.
T the commencement of the late session, it was announced in the Queen’s speech, that a bill would be submitted to
parliament “ for assimilating and amending the laws relating to bankruptcy and insolvency ;” accordingly, the bill “ to amend the law of debtor and creditor, bankruptcy, and insolvency, and execution," was introduced into the Upper House early in the session. We here purpose to refer to sundry points in connection with this bill, as well as to the other bill upon the same subject, introduced by Lord John Russell.
From what has already transpired in parliament, we believe there will be no great difliculty in framing a measure, from the two bills, which will carry out the main objects of both. All parties ‘ are agreed upon the propriety of abolishing the distinctions at present existing in the administration of the estates of insolvent traders and non-traders, and of intrusting to the same jurisdiction the administration of the estates of deceased insolvents. There is no great difference of opinion as to the necessity for reducing the expenses—simplifying the procedure-—revising the penal clauses, and the provisions regulating private arrangements-nor as to the means of accomplishing these improvements.
Upon two points, however—that of providing further localisa— tion of the jurisdiction, and that of the abolition of the oflice of oflicial assignee, as it at present exists—considerable conflict of opinion prevails. These two points, it will be observed, are intimately connected with each other; because we apprehend that, if jurisdiction in bankruptcy be conferred upon the County Courts at the option of the creditors, as proposed by Lord John Russell’s bill, the present system of official assignees cannot be continued in country cases. It is important, therefore, that we should, in the first place, consider whether the jurisdiction in question is suficiently localised by means of the existing District Courts, and if not, what is the best mode of providing further localisation.
So long ago as 1852, a. bill was introduced by Lord Brougham for abolishing the District Courts, and confining the jurisdiction
‘ There are exceptions to this general statement; not only do certain of those connected with the London Insolvent Debtors’ Court (one of whom is assuredly entitled to be heard on the subject) insist on the propriety of
preserving the distinction above alluded to; but other competent and independent persons bold the same opinion.-(Ed)
of the London Court to nine counties nearest to London ; and in a paper of observations in support of this measure, we find a speech of Lord Cottenham, made on moving for a select committee to inquire into the operation of the act by which the District Courts were established, from which it may he useful to extract a few observations. After stating the origin of the bankruptcy laws,
and the course of proceeding to make a debtor bankrupt, his lordship observed :—
If the court were 100 miles off, it was obvious that very great expense must be incurred. When the estate was to be seized by means of a messenger, if the court were in the neighbourhood, it was no expense for the messenger to go and possess himself of it ; but if it were situated at any great distance, it was quite obvious that great expense must be incurred by the employment of a messenger for that purpose. The next step was the choice of assignees, who had the duty cast upon them of collecting the estate, and dividing it among the creditors. The assignees were elected by the creditors. And all these things must be attended with great expense, if the place of the bankruptcy was situated at a great distance from the court. If it was in the neighbourhood, it would be easy to manage this business ; but if the persons had to travel to a distance, they would either not go at all, or go at great expense and inconvenience. Another step was the proof of the debts, which must be done by the creditors going before the commissioners in person, or making aflidavit. That could not be done without great expense if the court was situated at a distance from the residence of the bankrupt. Again, the realizing of the estate would be difiicult and expensive, if the ofiicers must act at a distance from the authority under which they were commissioned. He apprehended no further statement was required to satisfy their lordships that these several duties could not be properly performed except by a jurisdiction near the residence of the bankrupt. From the time of Queen Elizabeth to the close of last session of parliament, this system was adopted. There were no regular courts of bankruptcy except in London, but each case had a court established for the particular purpose of trying it; and there were courts of commissioners in all the considerable towns of the country, to whom, on a bankruptcy happening in the neighbourhood, authority was deputed by the great seal to do what was necessary to he done for the execution of the bankruptcy laws in that particular case. There were in all about 140 lists of barristers and solicitors, whose courts were held on such occasions as near as possible to the place where the bankrupt lived. The Northampton petition stated that during the year preceding the CODI
missioners had met in no less than 300 courts or places for the purpose of administering the bankruptcylaws.
With reference to the oflicial assignees, his lordship further remarked :—
By the act of last session, the system of oflicial assignees was extended to the country. But suppose the property to be realized lay 50 or 100 miles away from the ofiicial assignee, great expense must in that case be incurred, and the estate would derive little benefit from it, the creditors losing the security which it was intended they should derive from the active interference of a well-informed person. So much of the report of 1481 as was adopted, produced the act of last session. By an order in council the London district was greatly extended ; in one direction 122 miles, so as to include Yarmouth. He would now state some of the towns that had been deprived of their own courts, and been obliged to go to a considerable distance for all bankruptcy proceedings. Nottingham, with 80,000 inhabitants, had to go 50 miles; Boston, with 14,000 inhabitants, ha! to go 100 miles ; Louth, with 60,000 inhabitants, 90 miles ; Yarmouth, with 25,000 inhabitants, 122 miles ; and Norwich, with a population of 72,000, 122 miles. From the return of 1841 it appeared that of the fiats sued out, 1,714 were executed in places not now enjoying the benefit of a. local court. In 866 of those fiats, the distance the parties would have to go was 40 miles, and in 176 it was as much as 80 miles. The majority of the debts in those fiats was under £10. A petition from Leicester stated the details of five fiats, in which of 213 debts, 117 were under £5, and 75 under £10, and no less than 178 creditors proved in person. In many of those cases the dividend would not pay the expenses of the creditor's journey, and the natural consequence would be, that the system would act as a. great discouragemeut to the creditor troubling himself at all in the matter. Not only had the creditor to make a long journey, and to be at great expense of money, time, and trouble on his own account, but he would often be put to additional expense in taking his witnesses with him, and thus the mere show of opposition might be sufiioient to induce an honest creditor to abandon his claim altogether. * * * * The oflicial assignee never went at all. What chance was there, under such circumstances, that the estate would ever be properly realized T The books had of course been carried away, and put into the hands of the ofiicial assignee. The parties were probably at Yarmouth, the books in London. The messenger was not to go down again without a special order. The agent was probably a common person with little or no information. What, under such circumstances, was to become of the interests of the creditors’! The next step was the choice of the assignees. He had already stated, that a large proportion of the creditors had not a suflicient interest to induce them to undertake the trouble and expense. If they resided in the same town in which the court was placed, and if they exercised the right of electing the assignees, no dullbli they would look after their own interests, even when the amount was inconsidcrable, because they might do so without any material sacrifice of time and trouble. Another point to which it was necessary he should refer was this : It was very desirable that throughout the proceedings the bankrupt should himself be preSent to explain every point that might appear to be obscure. The oflicial assignee had the books, it was true, but in many cases the