Page images
PDF

LONDON, SEPTEMBER 24, 1881.

CONTENTS.

CURRENT TOPICS ■>. 857

The Practical Effect Op Tut. Conveyancing Bill 85H

Recent Registration Dkcibionh 869

Legislation Of The Year *>■•• 801

Correspondence 802

Cauks Of The Ayekk

In re Relfjravian Ice Company (Limited) 862

In re A Solicitor 8G3

Ruston v. Tobin 802

Holmes Marine Life- Protection Association (Limited) v.

PiUoy 80S

Prongcr v. Freeman 803

Societies 803

Law Students* Journal - 803

Obituary • 803

Egal Appointments 804

OlfPAKIKS • 864

Creditors' Claims , 864

Legal News 865

London Gazettes, &€,, &.c 865

Public General Statutes,

CURRENT TOPICS.

Wb Auk Informed that the resignation of Lord Justice Bramwell has been completed.

Tub Lingering Death of the deeply lamented President of the United States suggests an alteration of our own criminal law. Until the passing o£ the Criminal Law Consolidation Act, 1861, an attempt to murder was punishable with death equally with murder, although the victim of the attempt might not die within the year and a day, death .within which constitutes the crime of murder at common law. In 1861 this was altered, and the attempt to murder is,by section 11 of 24 & 25 Vict. o. 100, punishable by penal servitude for life only. The modern resources of medical science prolong life so much that it is not difficult to imagine a case where a murdered man may survive beyond the year and day of grace which the law allows to the murderer. It seems therefore that for once our criminal law may well be altered in the direction of severity.

It Hat Be Some Consolation to the reverend gentleman whose adventures have recently excited so much public interest to know that the law has not been unmindful of his case. Kidnapping—that is, "stealing and carrying away or secreting any person"—is an offence at common law punishable by fine or imprison, ment (1 East, P. C, p. 429). It was formerly also punishable by the pillory. A curious old Act (43 Eliz. c. 13), which was in force till 1827, rendered punishable with death any one who should, " without good and lawful authority, take any of the Queen's subjects against his or their will out of Cumberland, Northumberland, Westmoreland, and the Bishopric of Durham, or to any other place within any of the said counties, or detain, force, or imprison him or them as prisoners or against his or their wills, to ransom them or otherwise."

The Question we discussed last week, of the right of persons who occupy parts of houses separately as dwellings to be put on the borough register, has been

greatly exercising the revising barristers. At Blackburn it appears that a claim was made by the occupant of a bedroom, who had the joint use of another room in the house; but the revising barrister decided that a bedroom separately occupied for sleeping purposes only was not a dwelling within the Act, a decision which seems to be unquestionably correct. More difficulty has arisen as to other cases which have been nearer the line, but the tests applied have generally been those we indicated last week—viz,, whether the landlord resides in the house, whether the furniture belongs to him, and whether he provides the attendance. If these facts are ascertained, the exercise of a little common sense will usually enable the revising barrister to draw the line of distinction between the lodger and the householder in respect of part of a house.

A Decision of the Court of Appeal in Crawcour v. Salter, not yet reported fully, but given in this journal in Cases of the Week (ante, p. 525), deserves the attention of our readers. In Ex parte Powell, In re Matthews (L. K. 1 Ch. D. 501), a furniture dealer who had let furniture to an hotel keeper, who afterwards became bankrupt, claimed the furniture as against the trustee in the bankruptcy, alleging that there was a well-known custom of letting furniture to hotel-keepers, so that it was not in the order or disposition of the bankrupt. The Chief Judge said that " the custom was universal in this country," and that the custom had been proved so frequently in the bankruptcy courts that the court ought to take judicial notice of it. But the Court of Appeal decUjied to do this, and, holding that the evidence audited in the particular case did not establish that the custom had existed so long, and had been so extensively acted upon, that the ordinary creditors of the debtor in his trade might be reasonably presumed to have known it, offered the trustee to direct au issue respecting the existence of the custom to be tried by a jury, but the trustee declined this offer. In Crawcour v. Salter, the Court of Appeal, affirming a decision of Malins, V.C., held that the custom of letting furniture on hire is now so notorious that the court is bound to take judicial notice of it, and that no one, especially an hotel-keeper, can now gain false credit from the fact that he is in possession of furniture. The growing practice of selling furniture upon so-called "hiring agreements" renders this decision of considerable importance.

An Account recently issued, in accordance with the 38 & 39 Vict. c. 77, s. 28, shows the receipts and expenditure of the High Court of Justice and the Court of Appeal for the year ending the 31st of March, 1881. Beginning with the Chancery Division the account shows " the amount of dividends which would have arisen from stock, transferred to the National Debt Commissioners under the provisions of the Courts of Justice (Salaries and Funds) Act, 1869, and from the stock purchased with cash so transferred, if such stock had not been cancelled," to be £104,275 9s. lid. The amount of brokerage on the sale and transfer of stock was £12,206 12s. 3d.; the fees of taxation amounted to £16,651 9s.; the lunacy percentages to £11,311 10s., and the percentages under windings up to £25 Is. 8d. In addition to this the amount received for stamps iu lieu of fees was £78,493 4s. 2d., thus making the total receipts of the Chancery Division £222,963 7s., which is a decrease of £G,179 17s. from the receipts of the previous year. Against these receipts we find the follow-*

[ocr errors]

iug payments—viz., for salaries of judges (including £6,000 for the Lord Chancellor), £62,784 9a. 8d.; for retiring annuities of judges, £13,500; for compensations, less the amount of certain abolished offices, £343 128. 9d.; for salaries, £156,305 4s. 2d.; for scrivenery and printing, £4,679 2s. lOd.; for other expenses, £4,769 0s. Id.; for pensions, &c, of officers, £31,355 99. 2d.: for repairs, rents, rates, taxes, &c, £5,191 16s. 3d., and for stationery, £8,694; making a total of £287,622 14s. lid. of expenditure, which is a net decrease of £18,527 4s. on that of the previous year. In the Queen's Bench Division the only item of receipts is the amount of stamps in lieu of fees, £116,415 4s. 9d., being an increase of £29,373 13s. 5d. Against this item appear salaries (including £3,457 13s.7d. for remuneration to special commissioners and their staff on circuits), £167,142 Is. 2d.; incidental and travelling expenses, £6,770 0s. 7d.; stationery, &c, £2,101; rent, taxes, repairs, &c, £1,149 16s. 3d.; and compensations and superannuation allowances, £32,602 3s. 10d., makiug a total expenditure of £209,765 Is. 10d., or an increase of £7,550 8s. 5d. on that of the previous year. In the Probate, Divorce, and Admiralty Division the stamps and fees received amounted to a total of £153,379 16s. 9d., being a net decrease of £10,079 0s. Id. On the other side of this account we have the payment of salaries for probate and divorce, £88,956 14s. 8d.,and for admiralty, £15,586 8s. ]0d.; incidental and travelling expenses, £8,242 18s. lOd. and £176 2s.; for stationery, postage, &c, £5,250 and £176; for rents, taxes, repairs, &c, £9,423 Is. lOd. and £943 19s. 3d.; and for compensations and superannuations, £58,410 18s. lOd. and £282 lis. Id., making an aggregate of receipts amounting to £187,448 15s. 4d., or £4.315 19s. less than in the previous year. The iotal receipts in the district registries of Liverpool and Manchester were £8,816 6s. 8d., and the payments £G,309 6s. Id. Thus it appears that in all the divisions of the High Court, including the two district registries specified, the receipts were £501,574 15s. 2d., and the expenditure £691,145 18s. 2d. The increase in the total receipts was £11,696 3s. 8d., and the decrease in the expenditure was £13,943 6s. 4d.; but notwithstanding this, the total excess of expenditure over receipt is £189,571 3s., which according to the showing of this account the country pays for the administration of civil justice.

The Account of receipts and payments of the Court of Bankruptcy for the year ending March 31,1881, prepared pursuant to the Aot 32 & 33 Vict. c. 19, ss. 24— 28, shows the amouut of receipts to be £116,849 13s., which is a net decrease from the previous year of £18,874 lis. 6d. The expenditure includes £33,635 18s. id. for salaries; £42,511 3s. 8d. for remuneration to county court registrars in respect of bankruptcy business; £15,553 4s. Id. for incidental and travelling expenses ; £997 7s. 6d. for rent, rates, taxes, &c.; £373 for stationery and postage; and £29,166 9s. for pensions and compensations. These figures, which show a net decrease in expenditure of £7,697 12s. 2d., also show an excess of £5,387 9s. 4d. of expenditure over receipts. A considerably stronger instance of this excess is afforded by the fees received at the Office of Land Registry, which only amounted to £969 10s. 6d., while the expenditure came to £6,154 Is. 9d.

An American journal gives the following conversation between counsel and jadge:—"I object, your honour, to this witness' testimony." "Upon what ground ?" said the jadge. "My point is, your honour, that evidence from a person oocopyiog the professional position of the witness is unreliable." "What did I understand the witness to •ay his occupation was ?" asked the judge. "Washington correspondent of a New York daily paper," was the reply. "Ah!" said the judge, "the point is well taken; the court sustains your objection."

THE PRACTICAL EFFECT OF THE CONVEYANCING BILL.

I.—As TO OoXSOLIDATIOX OF MORTGAGE?.

The provisions of Lord Cairns' important measure were fully discussed in these columns during the passing of the Bill through Parliament, but it may be useful in* to attempt to point out what changes the Act will nuk>in law aud practice, and especially to define the extent of the operation of some of the provisions which mar be apt to mislead the realer by their apparent generality.

Among the legislative changes which are effected or aimed at by the Act, none appears to be more likely to be received with favourable anticipations thin the 17th section, which imposes what the margini! note styles a "restriction" upon the consolidation of mortgages. We own that, even in its fairest and lea-! exceptionable shape—where, that is to say, the right to consolidate was exercised as against the mortgagor himself—the doctrine of consolidation has always appeared to us to involve a doubtful equity. We do not indeed doubt that the course of conduct which it prescribed tu the mortgagor was morally just and reasonable; but wo doubt whether it is for the public advantage that the courts—even courts of equity—should have attempted to carry so far their jurisciction to enforce the morality of generosity rather than the strict bargain between the parties. This doubt gathers strength at the present day from the almost complete abolition of that distinction between law and equity upon which the doctrine was founded. One practical result of that abolition has been to make the mortgagors right to redeem a mortgage ai much a legal right, both in legal theory and in the current popular seutiment, as any other legal right; and this tends greatly to weaken the popular recognition of the grounds of the equitable theory, that the mortgagor wai not claiming a light, but asking a favour, to be grant*! only upon certain terms.

But if we doubt the propriety of enforcing the doctrine, at least any longer, even against the mortgagor, we can have no doubt that the much greater lengths to which it has been carried against persons claiming under or through the mortgagor are a very proper subject for legislative reform. Some of these application! of the doctrine could not be said to work anything less than manifest injustice, of which, perhaps, the worst was caused by the refusal of equity (in its nervous anxiety to prevent evasion) to treat absence of notice in aa assignee as a bar to consolidation against him. It consequently became, as Vice-Chancellor Wood aaid in Beevor v. Luck (L. K. 4 Eq. 537, at p. 549), a "rery dangerous thing at any time to buy equities of redemption, or to deal with them at all."

Holding theso views, we are disposed to receiw favourably any judicious legislative dealing with consolidation. We confess to have suffered some disappointment at the way in which Lord Cairns has dealt with it, aud the grounds of this disappointment we propose now to explain.

For this purpose it will be necessary to cite a part of the section in which the subject is treated :—

"17. (1) A mortgagor seeking to redeem any one mortgage, shall, by virtue of this Aot, be entitled to do so. without paying any money due under any separata mortgage made by him, or by any person through whom be claims, on property other than that comprised in the mortgage whioh he seeks to redeem.

"(2) This section applies only if and as far as a contrary intention is not expressed in the mortgage deeds, or one of them.

"(3) This section applisa only where the mortgages, or one of them, are or is made after the commencement of

this Act."

Against interpretation clauses, when they seek to go beyond the provinoe of mere definition, we entertain this objection, that they cannot at their best be anything better than successful devices of laziness, while they are much more likely to take effect as traps for the unwary. In the present case we do not think that anything has been gained by giving an emphatic prominence to the abolition of consolidation in its least exceptionable shape, while the provision is left to be extended to persons claiming through the mortgagor by the operation of an interpretation clause. This, which to our minds is a blemish, is emphasised by the crudeness of construction which, having in the first line relied upon the interpretation clause, in the fourth line makes specific mention of persons claiming through the mortgagor. But we should not think these criticisms worth urging if they stood alone. The section exhibits other unforeseen defects, or intended omissions, which, in our opinion, are fatal to its claim to deal finally, or iu a wellconsidered manner, with the subject.

The reader is aware that another mortgage was not, as against certain persons, the only thing which could be consolidated with a mortgage. As against the heir (or devisee) of the mortgagor, a bond debt of the mortgagor could be consolidated with the mortgage; that is to say, in the language of the report of Shuttleworth v. Laycoch (1 Vem. 245) (where the rule was first laid down by Lord Keeper North), if there is a debt secured by mortgage, and also a bond debt, when the heir of the mortgagor comes to redeem, he shall not redeem the mortgage without paying the bond debt too, in case the heir be bound. This is explained and confirmed by Lord Hardwicke in Morret v. Pashe (2 Atk. 52, at p. 53) as follows:—Where a prior incumbrancer, by mortgage, &c, has a bond likewise from the mortgagor, the latter, in his lifetime, may redeem the mortgage without paying off the bond debt; otherwise as to the heir-at-law, because the moment he redeems the estate, it shall be assets in his hands; and for this reason the court compels him to discharge the bond as well as the mortgage. This distinction between the mortgagor and the heir of the mortgagor seems now to be clearly settled. It is a fine example of the prudery of equity; which might, with even better pretence to j ustice, and without any straining of principle visible to the naked eye, have refused leave to the mortgagor (who was in justice bound at least as much as his heir, whether named or not, to discharge his bond debts) to oust the mortgagee from his legal advantage by redeeming a mortgage, except upon the terms of also discharging bond debts (or even simple contract debts), due from him to the mortgagee. This was actually done by Lord Keeper North in Baxter v. Manning (1 Vera. 244), before the Statute of Fraudulent Devises; but the weight of authority, though consisting chiefly of dicta, is decidedly against that case. (See Ghallis v. Casborn, Prec. Cha. 407; Anon., 2 Ves. Sen. 662; Coleman v. Winch, 1 P. Wan. 775; Archer v. Snatt, 2 Stra. 1107; Elvy v. Norwood, 5 De G. & Sm. 540). The supposed ground of the distinction is neatly expressed in the somewhat pedantic observation of Lord Macclesfield iu Coleman v. Winch: "The bond of the ancestor, wherein the heir is bound, becomes upon the ancestor's death the heir's own debt, for which he is suable in debet and detinet." But the ancestor was of course equally liable to be sued, and the peculiar forms of the requisite common law action could have no possible bearing upon the equity of the claim.

Hitherto we have been speaking of mortgages of real estate. As against the executor, in the case of mortgages of chattels, the principle has been carried much further; far enough, in short, to give rise to a crying iniquity. In In re Hasle/oot's Estate (L. R. 13 Eq. 327), Lord Bomilly, following a previous decision of his own, allowed a simple contract debt (we purposely omit to consider the effect, in this connection, of the 32 & 33 Vict. c. 46) to be consolidated with a mortgago of leaseholds as against the executor of tho mortgagor,

although the estate of the latter was insolvent, and the result was to injure the general creditors. In In re General Providence Assurance Company (L. R. 14 Eq. 507), this principle was so extended by Vice-Chancellor Malms as to apply against the liquidator of an insolvent company. It is true that the present Master of the Bolls has strongly expressed his disapproval of these cases, and of Spalding v. Thompson (26 Beav. 637), the original decision of Lord Bomilly from which they sprang: see Talbot v. Frere (L. B. 9 Ch. D. 568, at p. 571). But until they have been reviewed by the Court of Appeal they cannot be cast aside as overruled.

It is impossible to see iu what way the section of the Act which we are considering touches these last-mentioned anomalies and enormities; or rather it evidently leaves them untouched. The interpretation clause informs us that property, unless what it calls a "contrary intention" appears, includes real and personal property, and the reforms which we desire might have been thoroughly effected in a few lines. If the omission to effect them is due to inadvertence, we think that the section has been very carelessly drafted; if it is due to design, we think that the section was very ill conceived.

RECENT REGISTRATION
DECISIONS.

The Parliamentary and Municipal Registration Act, 1878 (41 & 42 Vict. c. 46), by setting on foot a simultaneous revision of the parliamentary and municipal list in the numerous cases "where (section 15) the whole or part of the area of a municipal borough is co-extensive with, or included in, the area of a parliamentary borough," has greatly increased the business of revising barristers' courts. The evening sittings of the revision courts, which are made compulsory by the Revising Barristers Act, 1873 (36 & 37 Vict. c. 70), s. 4, upon "every barrister appointed to revise the lists for a parliamentary borough containing, according to the last census for the time being, more than ten thousand inhabitants," have no doubt become even more frequent than before. Bat notwithstanding the increased facilities for appeal given by the 37th seetion of the Act of 1878, by which, "if any person feels aggrieved by a revising barrister refusing to stato a case, he may apply to the High Court for a rule calling on the revising barrister, and also on the person, if any, in whose favour the decision from which the applicant desires to appeal was given, to show cause why a rule should not be made directing the appeal to be entertained, and the case to be stated," and notwithstanding the many difficulties of construction which the Act of 1878 presents, we cannot say that the number of what are called "registration cases" have increased to any considerable degree. The Act of 1878 did not come into operation until the 1st of February, 1879, so that only one " set" of these cases has yet been heard, and we are somewhat surprised to find that the total number of registration cases amounted, in November, 1879, to eight, and in November, 1880, to two. We propose to examine the moro important of these cases, taking those under Acts other than the Act of 1878 first, and those under the Act of 1878 afterwards.

Ford, Appellant; Drew, Respondent (28 W. R. 137, L. R. 5 C. P. D. 59), from its interest to articled clerks, is probably familiar by name to many of our readers. It was decided, upon the construction of section 31 of the Reform Act, 1832 (2 & 3 Will. 4, c. 45). That section, which makes provision for freeholders voting for a city, being a county for itself, enacts that no freeholder shall be registered in any year, "unless he shall have resided for six calendar months next previous to the last day of July in such year within such city, or within seven statute miles thereof." During part of the prescribed period of six months, an articled clerk (who was a freeholder) who had, throughout the whole of the period, a bed-room kept for his exclusive use in his father's house in the city of Exeter, waa absent serving under articles to a solicitor in London. The revising barrister held that there had been a sufficient residence, but the court, Grove and Lindley, JJ., on appeal, reversed the decision. It is plain, from the judgment of Grove, J., that that learned judge was not free from doubt, but that the doubt arose " more from expressions used in the cases upon tho Act," in which it was difficult "to draw the line between actual and constructive residence," than upon his own construction of the Act." "If I had been asked," he observed, "to disregard the decisions, and say whether the articled clerk resided in Exeter during the period in question, I should have said, without hesitation, No." The reason of the decision was that the clerk could not return to Exeter without the consent of the solicitor, and this reason should be noted as a guide for future cases where a "break" of residence is attempted to be set up.

Tho decision in Foster, Appellant; Medwin, Respondent (28 W. R. 660, L. B. 5 C. P. D. 87), that a right to vote in respect of a qualification within an isolated part of a parish for a borough comprising that part is not affected by an order made under the Divided Parishes and Poor Law Amendment Act, 1876 (39 & 40 Vict. c. 61), which amalgamates the isolated part with a parish beyond the limits of such borough, is remarkable as showing that the High Court deliberately leans in favour of the franchise in case of doubt. The question turned upon the construction of a section (4) of the Act of 1876, which Lord Coleridge "did not profess to uuder- stand," but he "thought it his duty to interpret the Act, if possible, so as not to affect the parliamentary franchise," and did not hesitate to hold to the governing principle " that the court was not to affect the parliamentary franchise, if possible." We cannot call to mind any case in which this rule has been so explicitly laid down before, but we believe that it is the general practice of revising barristers to lean in favour of the franchise.

Coming now to the oases under the Act of 1878, the first we have to notice is Porrett v. Lord (28 W. R. 393, L. R. 5 C. P. D. 65). There the appellant's qualification was described in the list as " a house, 8, Birley-place." He wasobjectedtoonthegroundsthathis " name, place of abode, nature of qualification, and the name and situation of his qualifying property," were not correctly described. It turned out that he had changed his residence from No. 8 to No. 9, Birley-place, and had sent in a "declaration for amending misdescription," under section 24 and form (M.) of the Act, in which he stated his "correct place of abode" as "9, Birley-place," the "correct nature of qualification " as "houses in succession," and the "correct name and situation of qualifying property " as " 8, Birley-place and 9, Birley-place." It was held that the revising barrister was right in expunging the name from the list, inasmuch as there had been an alteration of the nature of the qualification. It is impossible to read the judgments and not to see that this decision was technically correct, but right as it was in the letter, it scarcely seems to be in accordance with the spirit of the enactment (section 28) of the Act of 1878, which directs the revising barrister to correct mistakes. No human being could have been misled by the original misdescription. Sub-section 13, however, directs that the revising barrister "shall not be at liberty to change the description of the qualification as it appears in the list," and as the occupation of houses in succession is a distinct qualification in itself, we do not sec how the court could have come to any other conclusion.

The extent of tho revising barrister'3 power to correct mistakes was much discussed in tho two important cases of James, Appellant; Iloward, Respondent (28 W. R. 923, L. R. 5 C. P. D. 225), and Pickard, Appellant; Baylis, Respondent (28 W. R, 256, L. R. 5 C. P. D. 235).

This correcting power is derived from the following initial paragraphs of sectiou 28 of the Act of 1S78:—

"A revising barrister shall .... perform the dotiet anil have the powers following :—

"(1.) He shall correct any mistake which ii proved to him to have been made in any list.

"(2.) He may correct any mistake which is proved to Lin to have been made ia any claim or notice of objection."

In James' case, an objector to a parliamentary vote, following the old form under 6 Vict. c. 18, described himself merely " as on the list of voters for the parish" in which he resided. Form (I.) in the schedule to the Act of 1878 provides for the signs, ture of an objector describing himself as on the list of parliamentary voters. This is, of course, necessary for the purposes of identification ia the cases where the parliamentary and municipal lists are revi*e<l together. It was argued strenuously for the voter objected to that the actual omission of the word "parliamentary " could not be said to be a " mistake," and tho revising barrister not only held the omission fatal, but was of opinion that he had no power to amend. The court, however, was clearly of opinion that he had. In Pickard's case, a lodger, claiming for the first time, omitted to state both the amount of his rent and tho address of his landlord, thus neglecting to fill up correctly two out of the five columni tabulated in Form (H.), No. 2 in the schedule to the Act. The revising barrister, although evidence was given satisfactory to him both of the amount of rent paid anl of the address of the landlord, declined to correct the omissions as mistakes, and the claimant lost his vote. When the case which was stated came on to be argued, no counsel appeared for the respondent. The case manifestly affecting tho whole lodger franchise, the court directed it to be re-argued by or on behalf of the Attorney-General, aud eventually affirmed the decision of the revising barrister, holding that the mistake was in a claim, not in a list, and that therefore the matter was purely one for the discretion of the revising barrister under the 2nd paragraph of section 2«S. Two members of the court, Lord Coleridge, C.J., and Lindley, J., intimated an opinion that the revising barrister had rightly exercised his discretion, and that the reasons given by him (which appeared very fully in the case stated) were sound and good, and sound and good they probably were. But it ia very material to point out that this intimation of opinion was no part of the judgment, and is not binding on any reviaiou court. One of the reasons given by the revising barrister was that he did not wish to disturb the practice of his predecessor, and it is obvious that the practice of revision courts may differ in many parts of the country. It is also well to note that if case had been of a renewed, and not of a new, claim, the lodger would have been on a "list," and the revising barrister would have been bound t J amoud under the 1st paragraph of the section. But how far does the word "mistake " go? It is curious to observe that the point argued in James' case—that there had been no mistake at all—was not taken in Pidiartts cast. In James' case the objector bad merely omitted the word "parliamentary," but had otherwise complied with the form, and Lord Coleridge, CJ., said: "This « manifestly a mistake in a notice of objection; for the objector wishing to describe himself properly, bn followed the old form given in 6 ft 7 Vict. c. IS, being ignorant, and not having taken the trouble to inform himself of the altered form given by the Act of 1878. But doss this reasoning apply to a case where a lodger claimant carelessly writes "butler" underneath ibo words " amount of rout paid," as happened iu Pickaris case? We greatly doubt whether it does, and it is worth while pointing out that Pickard's case, resulting as it did in a defeat of the claimant, only indirectly decides that a " mistako" within the words of the statute had been made.

^he only remaining decision whioh it is worth while *° notice is Eayward, Appellant; Scott, Respondent (28 E. 988, L. R. 5 C. P. D. 231), which may be dismlssed in a very few words. By eub-eection 7 of section 28 of the Act of 1878 the revising barrister is required to expnnge the name of overy person, whether objected to or not, where it is proved that on the last day of July then next preceding such person was" incapacitated by any law or statute from voting." It was held, affirming the decision of the revising barrister, that the incapacity referred to by this sub-section is such incapacity as that attaching to peers, women, and other persons "who, from some inherent, or for the time irremovable, quality in themselves, have not the status of parliamentary elector?," as explained in Stowe v. Jolliffe (L. K. 9 C. P. 734), and does not include the mere temporary disqualification arising from the receipt of parochial relief. The reasoning of this decision is unanswerable. The direction to expunge is given only in those cases where the claim to vote requires no argument for or against it.

LEGISLATION OF THE YEAR,

BURIAL LAW. Cap. 2.—Aw Act To Remove Doubts As To The OperaTion And Effect Of So Much Of The Burial Laws Amendment Act, 1880, As Relates To The Births And Deaths Registration Act, 1874.

The 11th section of the Burial Laws Amendment Act, 1880 (43 & 44 Vict. c. 41), contained a curious "clorical error in the first sentence thereof," by reasen of which doubts (in the statutory sense of the term, for there could be no practical difficulty in construing the section) soon began to arise. The 11th section in question directs that the certificate of a registrar, given under section 17 of the Births and Registration Act, 1874, "shall, in the caso of a burial under that Act," be delivered to the relatives of the deceased having the charge of, or being responsible for, the burial, instead of to the person who performs the funeral service. For "that" read "this," says the "Burial and Registration Acts (Doubts Removal) Act, 1881," in, as we venture to think, either too many or too few words. We might either have had a recital of the two sections causing the doubt, followed by a declaration that " this" meant "that," which would have been long, but plain on the face of it, or the simple declaration by itself, which would have been plain by reference. Instead of either of these methods, we have a solemn direction that "nothing" in section 11 "shall have, or be deemed in law to have had, the effect of repealing . . . any of the provisions contained" in section 17 of the Registration Act, 1874, "in any case whatever, save and except only in the case of a burial under the Burial Laws Amendment Act, 1880." As this direction is followed by a section substituting the needed "this" for the peccant "that," we take it to be surplusage. However there can be no mistake now, though it may take some readers a little extra time to discover what it is nil about, especially if—as is the case with most people —they had read through the principal Act of 1880, with a pardonable confusion of demonstrative pronouns.

THE JUDICIAL COMMITTEE. Cap. 3.—An Act To Further Improve The AdministraTion Of Justice In The Judicial Committee Of The Privy Council.

It was provided by 14 & 15 Vict, c 83, that "every person holding, or who has held, the office of a judge of the Court of Appeal in Chancery shall, if a member of her Majesty's Privy Council, be a member of the Judicial Committee of the Privy Council." It has apparently

been considered that these words will not apply to the judges of the present Court of Appeal, for the provision is re-enacted with the substitution of " a Lord Justice of Appeal" for the words in italics.

SUMMARY JURISDICTION.

Cap. 24.—An Act To Amend The Law Respecting The Service Of Process Of Courts Of Summary JurisdicTion In Enoland And Scotland.

This Act, which (by section 2) is not to apply to Ireland, and, by seotion 3 is to come into operation on the 1st of October, provides (by section 4) that any process issued under the Summary Jurisdiction Acts, if issued by a court of summary jurisdiction in England and indorsed by a court of summary jurisdiction in Scotland (or vice versd), may be served and executed by an officer of either court within the jurisdiction of the indorsing court in the same manner as within that of the issuing court. Any process may be issued and indorsed under the hand of any person declared by the Act to be a court of summary jurisdiction, and may be indorsed solely upon proof (upon oath or by solemn declaration under section 41 of the Summary Jurisdiction Act, 1879, or any like declaration taken in Scotland) of the handwriting of the person issuing it. "Where any process has been served under the section, requiring an appearance to answer an information or complaint, the court must bs satisfied on oath, before issuing a warrant for nou-appearance, that there is sufficient primd facie evidence in support of the information or complaint. If the process is to procure the attendance of a witness, the court issuing it mnst be satisfied on oath that the evidence of the witness will probably bo material, and that he will not appear voluntarily without the process, and he is not to be subjected to any liability for disobedienco unless he has been paid or tendered a reasonable sum for expenses. The Act is not to apply to process requiring appearance to answer a complaint issued by an English court of summary jurisdiction to recover a "civil debt" within the Summary Jurisdiction Act, 1879, or by a Scotch court in a case within the definition of civil jurisdiction under the Summary Procedure Act, 1864. By section 5 any person apprehended under the Act is to be forthwith taken to some place within the jurisdiction of the issuing court. Any warrant of distress issued in England, and indorsed in Scotland is to be executed in Scotland as a Scotch warrant of poindiug and sale, and any duly indorsed Scotch warrant of poinding and sale is to be executed in England like a warrant of distress, but any account of the costs or charges of the execution or of the money levied, and any money raised thereby, must be dealt with as if the warrant had been executed within the j urisdiction of the issuing court. Section 6 gives a court of summary j urisdiction in England, and a sheriff court in Scotland, power to make an affiliation order, although the child was born, or the father or mother ordinarily resides, in Scotland if the court is English, or in England if the court is Scotch, and obedience may be onforcod in the same manner as in the case of any other process under the Act, which is (by section 7) to be in addition to, and not in derogation of, any existing statutory powers of executing warrants or other process in England or Scotland. Section 8 extends the term " process" (unless the context otherwise requires) to every summons or warrant to appear to answer any information or complaint, or as a witness, and every warrant of commitment or imprisonment or distress, and every order or minute, or copy of an order or minute, of a court of summary jurisdiction, as well as every document or process (other than a warrant of arrestment) required to be served or executed for any purpose connected with a court of summary jurisdiction.

« PreviousContinue »