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risk, but also great expense. It is a matter of astonishment as well as of regret, that a few obstinate, narrow-minded, or ignorant persons should, in these days of conveyancing law reform, be allowed to force their old-fashioned and stupid notions upon
the House of Commons.
It is not our intention at present to enter into the details of this bill; but we cannot refrain from giving an example of the effect which has ensued from one of the
ill-considered amendments. We refer to the striking out of one word in clause 9 of the bill (section 8 of the Act). The clause in the bill ran thus
Where, on the bona fide purchase, after the passing of this act, of a leasehold interest under a lease containing a covenant on the part of the lessee to insure against loss or damage by fire, the purchaser is furnished with the written receipt of the person entitled to receive the rent, or his agent, for the last payment of rent accrued due before the completion of the purchase, and there is subsisting at the time of the completion of the purchase an insurance in conformity with the covenant, the purchaser, or any person claiming under him, shall not be subject to any liability, by way of forfeiture or damages, or otherwise, in respect of any breach of the covenant committed at any time before the completion of the purchase, of which the purchaser had not actual notice before the completion of the purchase."
In the Commons the word “actual” was struck out, and therefore a purchaser is protected, by s. 8 of the Act, only if he have no notice-i. e., actual or constructive notice--of a prior breach of the covenant to insure. But the wiseacre who proposed this amendment seems to have forgotten the probability of a court of equity holding, that the very fact of a new insurance appearing to have been entered into immediately before the completion of the purchase, would be constructive notice either that no insurance had previously existed, or that the previous insurance had not been made in conformity with the terms of the covenant. This section, therefore, will not effect the purpose it was intended to effect, and will virtually remain a dead letter, unless indeed it should happen first to give rise to dispute and litigation.
The legislative sagacity which operated in the House of Com
mons, to induce it to consent to the erasure of valuable provisions, and the cancellation of important portions of the measure, was in full force for the purpose of suggesting the addition of novel and quite original matter. This occurs in sect. 32 of the act, which is as follows:
“When a trustee, executor, or administrator shall not, by some instruments creating his trust, be expressly forbidden to invest any trust fund on real securities in any part of the united kingdom, or on the stock of the bank of England or Ireland, or on East India stock, it shall be lawful for such trustee, executor, or administrater to invest such trust funds on such securities or stock; and he shall not be liable on that account as for a breach of trust, provided that such investment shall in other respects be reasonable and proper.”
Had this section been confined to deeds executed, wills proved, and administrations taken out after the passing of the Act, there would not have been much cause for comment or complaint, as all whose property might have been affected by it would have had the opportunity of neutralising its operation. But for the legislature to adopt a clause of this nature, embracing all existing trust property, is little else than committing a breach of faith with the public.
The clause has already given rise to doubt. It has been questioned whether the new stock, raised by the Secretary of State in Council for India, under the authority of the 22d and 23d Vict., c. 39, is comprised within the term “East India Stock," or whether that term must not be limited to the stock of the late East India Company. We are certainly inclined to think that the former is the legal interpretation to be put upon the words referred to. Had this clause emanated from Lord St. Leonards, no such ambiguity as that above-mentioned could have occurred.
We must, again, express our regret that the original measure of Lord St. Leonards has been tampered with and spoilt. The real property lawyer is well aware, though certain of the would-be real property reformers are ignorant, that the learned lord is the one out of the very few members of the legislature who know how to devise and apply suitable amendments to actual defects in the law connected with conveyancing, and to whom such amendments can be safely intrusted.
RECORDER OF LINCOLN.. On the occasion of the recent appointment of the Hon. Mr. Vernon to be Recorder of Lincoln, the opinion of those especially interested therein has been clearly expressed; for we read that, at a meeting of the Lincoln Town-Council, specially convened, the mayor in the chair, the following resolutions were unanimously agreed to :-"That, in the opinion of this Council, the appointment of Recorder for Lincoln by Her Majesty's government, without giving this council, as the representatives of the public, an opportunity of expressing any opinion upon the merits of gentlemen qualified to fill the office in question, is a slight shown to the principal of local self-government, and a further proof of the mischievous and ever-encroaching principles of centralisation, so much in favour with the governing class in this country. That the selection of the Hon. G. C. Vernon to fill the office of Recorder, lately held by Nathan Clarke, Esq., deceased, is injudicious, and likely to shake the confidence of the people in the proper administration of justice, Mr. Vernon being an unknown and untried man, and elevated over others of the Midland bar who have acquired considerable practice, and who, having enjoyed the advantages resulting from much longer experience in their profession, would commence their judicial career with the entire confidence of the public."
Now, upon the latter resolution we pass no judgment. Mr. Vernon is a gentleman even less known than Mr. Justice Blackburne, but that may not be his fault, and the result may prove that he is one of the best criminal lawyers of the day, and that his merits had accidentally come under the notice of the superior powers. But appointments like these do not afford satisfaction to the public, which is not assured that mere interest, family and political connexion, may not, as in other cases, be the operative cause of such promotions.
With whom, then, should such patronage be left? The recent proceedings at, and the result of the election of the judge of the Sheriff's court, does not make one feel well disposed to leave the
VOL. VIII, NO. XV.
appointment in such a body as exercised the franchise on that occasion. Nor is jobbing, we fear, unknown to town-councils or other bodies of the like kind. Perhaps the best protection for the public would be, in the case of recorderships and stipendiary magistrates, to have three or four names submitted to the Chancellor or Home Office, by the local authorities. To exclude them from having a voice in such appointments, is to our minds improper; but to exercise a check on their determination appears highly desirable. At all events, the present mode of making these appointments demands consideration and alteration.
BOROUGH GRAND JURIES. In the last number of this Magazine, we discussed the operation of juries upon the administration of our law. An example has very recently been brought to our notice, of the mode in which grand juries in small boroughs perform their duties, which is not without its value as an illustration of the defects of the present system. In the small borough of Folkestone, which numbers, we believe, burgesses to the amount of six hundred or seven hundred (of whom, perhaps, one-fourth are available as jurors grand and petty), there are regular quarter-sessions, a recorder, and officers to perform appropriate functions. The civil and criminal business is there carried on after the accustomed formal mode. Now, it happened that, at the July quarter-sessions, three private soldiers were tried for housebreaking, convicted, and sentenced to twelve months' imprisonment, with hard labour. Subsequently, however, it was found out that there had been some great mistake in identity. Two other soldiers of the same regiment confessed that they had committed the outrage, and that the men previously convicted were innocent of the crime laid to their charge. It appears in fact, that when the housebreaking soldiers were retiring from their outrage, they found the police were in hot pursuit after them, and, therefore, had recourse to a ruse, to throw these officers off the scent, which thus occasioned the error. As soon as they had reached their hut
at Shorncliffe, they induced two of their comrades to get out of bed, into whose place the pursued soldiers forth with slipped. Unfortunately, the device was too successful, for the police effectually confounded the men who had just slipped out of bed, with those who had just slipped in. The police were resolved to identify some of the soldiers, and thus fixed the wrong men with the housebreaking.
The real culprits, however, after their comrades had been sentenced to undergo the imprisonment, felt remorse, and confessed the truth. The latter could not be relieved by the Secretary of State for the Home Department until the former had been convicted ; and so, on the 30th September last, the two men who had confessed were put on their trial. Mr. J. J. Lonsdale, the recorder, explained to the grand jury their duties with respect to the case. Whether he explained them so fully and elaborately, as we are inclined to think, as to puzzle the “grand” jury, or whether they failed from sheer stupidity, or from corrupt motives, we cannot say; but with the confession of the prisoners before them, and the evidence of the third convict, who deposed that his comrades in crime had been the two men now charged, and not the two formerly convicted, the intelligent grand jury found no true bill! The recorder was astounded; others, perhaps, who knew the material whence the “grand jury” was drawn, were not equally surprised. Nor is this by any means an isolated case either in the borough of Folkestone, or other small boroughs, of failure of justice, by reason of the improper constitution of the tribunal. Not only are these jurors (who are drawn from sources not suitable even for the performance of the functions of petty jurymen) without the education and characters which are supposed proper to grand jurymen; but in small boroughs there are party feeling, prejudices, and other disturbing influences, which render the administration of justice within such small areas any thing but satisfactory. The advantages of local self-government are not illustrated by the proceedings in small boroughs; and though we may admit the salubrity and beauty of Folkestone—its value as a halting-place on the road to Paris in