« PreviousContinue »
vision is always made for the possibility in well-drawn drafts. The following remarks of Baron Bayley in
CORRESPONDENCE. Barlow v. Rhodes (1 C. & M. at p. 448), lay down an excellent rule for the guidance in such cases of the draftsman. “It has been decided over and over again,
SHERIFFS AND THEIR OFFICERS. that where an easement has become extinct by unity of [To the Editor of the Solicitors' Journal.] ownership,” which ownership, be it observed, must
Sir,Having given notice of my intention to move at amount to a common seisin in fee simple, "and the owner wishes to grant the easement with the premises to
| the next meeting of the Court of Common Council,
“ That it be referred to the Law and City Courts Comwhich it was formerly appurtenant, he must use lan
| mittee to inquire and report to this court as soon as guage to show that he intended to grant the easement
practicable as to the vexation, delay, and costly prode novo. . . . If, in the case of an easement
ceedings to which citizens and others, who may be extinguished by unity of ownership, a man grants
judgment creditors, are subjected in obtaining from the land to which before the extinguishment the
sheriffs' officers and county court bailiffs moneys reright of common was attached, and uses only the words
ceived by them in respect of executions levied at the suit .appertaining' and 'belonging,' the right will not pass,
of such creditors, and the best means to be adopted for these words not being sufficient to revive the right.
insuring the speedy payment of all such moneys to the There are, however, apt words for the purpose of passing
| parties entitled thereto, with power to confer with the such an easement; and if you will only insert the
Right Hon. the Lord High Chancellor, Citizen and words ' or therewith used and enjoyed,' the right would
Mercer, thereon," I shall be glad to receive informa
tion (which, if so required, shall be regarded as private) These things being so, and this being, we believe, the
y respecting the difficulties which any of your readers only part of the “general words” which cannot be
may have experienced in obtaining payment of moneys omitted without danger, let us see how our authors have
received by sheriffs' officers from executions levied by dealt with it. The forms given by them, as respectively
W. J. FRASER. applicable (1) to "land," (2) to “land having houses or
2, Soho-square, W., October 10. other buildings thereon," and (3) to "a manor," are as follows: (1.) All . . . 'easements, rights, and advantages
THE CHANCERY PAY OFFICE. whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or at the time of conveyance
[To the Editor of the Solicitors' Journal.] ... enjoyed with, or reputed or known as part or Sir,—The enclosed cutting is from to-day's City Press. parcel of or appartenant to the land or any part thereof. I have heard that something of the kind was being done.
(2.) All... easements, rights, and advantages Either the rule should be abolished requiring personal whatsoever, appertaining or reputed to appertain to thə identification or the practice mentioned should be put a land, houses, or other buildings conveyed, or any of stop to. them, or any part thereof, or at the time of conveyance [The following is the cutting referred to:-"A gentle.
... enjoyed with, or reputed or known as part or man has a sum of money in Chancery to receive from parcel of or appurtenant to, the land, houses, or other the Paymaster's office, and something like the following buildings conveyed, or any of them, or any part thereof.
takes place when be gets to the New Law Courts. He . . . easements, profits, advantages, asks for the office, and a minor official, whom I will call rights, emuluments, and hereditaments whatsoever, to A., inquires his business, and then says, "Oh, you will the manor appertaining or reputed to appertain, or have to be identified. Gentleman says, "Shall I? Bat at the time of conveyance ..enjoyed with the I have all my papers. What further identification is same, or reputed or known as part, parcel, or member
needed ?' A. : Oh, you must be identified. He thereof.
then gets to a clerk, B., who tells the same tale, and the Would it not almost seem as if the words in italics had gentleman is informed that there is Mr. O. across the been expressly inserted to deprive these forms of all
way, who will do the identification business. C. is sought possibility of serving their most useful purpose ? Nothing
out, and requires a fee of half-a-gainea, which the is more certain than that, at the time of conveyance, the gentlemen objects to, and C. then says, “Well, six-andeasement, in the case above supposed by us, has been eightpence, then. The above is a fact; and I ask is utterly extinguished by the unity of seisin ; and it would
this sort of thing right and proper, or is it only for the be difficult to devise any form of words less "apt," than
benefit of A., B., and C.?"] one which should describe an owner in fee simple as enjoying an casement over one part of his own land in respect of another part. And this blemish occurs in
THE CONVEYANCING ACT, a part of the Act wbich might, with comparative ease,
[To the Editor of the Solicitors' Journal.] have been made perfect; and in which anything short of the perfection which gives the absolute certainty of Sir,—There is a singular oversight in your article of safety is useless.
the 8th inst. ; you have overlooked the 13th section, which negatives the right to call for the title to the leasehold reversion on a contract to grant an underlease.
Permit me to take this opportunity to ask whether, Lord Justice Lash has appointed the following dates for expedient as it doubtless is that the measure should be holding the autumn assizes on the North and South Wales searchingly tested, some of your criticisms are quite cose Circuits-viz, for the combined counties of Chester, Mont. sistent with the loyal reception which should, I venture gomery, Merioneth, Carnarvon, Anglesea, Denbigb, and to think, be accorded to this well-meant endeavour to Flint, at Chester, Saturday, October 22; and for Glamorgan, curtail what a learned divine of the last century called Carmarthen, Pembroke, Haverfordwest, Cardigan, Breck “the villainous tautology of the lawyers." I might Dock, and Radnor, at Swansea, Monday, October 31. Lord
instance your inquiry,“ When is a sale made-when the Chief Justice Coleridge bas appointed the following days for
contract is entered into, or when it is completed P" in holding the autumn assizes on the South-Eastern Circuit:
discussing the provisions as to conditions of sales made viz., Norwicb, Monday, October 24; Cambridge, Thursday,
after the commencement of the Act” (section 3, subOctober 27; Maidstone, Monday, October 31; Chelmsford,
section 10). Can there be any real doubt ? Four previous Monday, November 7. Mr. Justice Cave has fixed the
sub-sections ise the term "sale" or "sold " in a con. following dates for holding the autumn assizes on the North Eastern Circuit--viz., Newcastle, Monday, October 24;
nection which shows plainly that it is the contract of Durham, Thursday, October 26; York, Wednesday, No: sale that constitutes a sale. vember 26
Or again, as to the exoneration of a solicitor from
liability (in relation to the question of consolidation)
PRACTICE_WINDING UP OF COMPANY - APPOINTMENT are by this Act made applicable to any ... trans
OF SPECIAL EXAMINER TO TAKE EVIDENCE-COMPANIES
Act. 1862, 8. 115.- In the case of In re The Working action." I give the minimums of quotations for the
Men's Mutual Society (Limited), before Cave, J., sittiog in sake of clearness, but is not the language com
the Rolls Court as Vacation Jadge, on the 12th inst., an prehensive enough in all conscience to cover the omis
order had been previously made for the compulsory sion to express an intention contrary to-i.e., to negative
winding up of the company, and an official liquidator ap—the freedom from the consolidation conferred by the pointed. It appeared that the late manager of the comAct?
pany, Ledru Rollin Reynolds, had misappropriated a con. With reference to the discrepancy which you think siderable portion of the assets of the company, and an exists between the common-form conditions provided by
action had been commenced to recover the same. Reynolds the Act and the rules in section 2 of the Vendor and
had become bankrupt, and meetings of his creditors been
held, but as yet no trustee appointed. An ex parte appliPurchaser Act, 1874-the latter in your opinion applying
cation was now made on behalf of the official liquidator only to contracts for the sale of “land," and not to an
under the Companies Act, 1862, s. 115, for the appointincorporeal hereditament., to which the former are ap
ment of a special examiner in the winding up to at once plicable--have you not overlooked 13 & 14 Vict. c. 21,
take evidence as to the misappropriation, on the ground 8. 4 (An Act for shortening the language used in Acts of that such a course would be more advantageous than wait. Parliament), which provides that “the word 'land' ing for the appointment of a trustee in bankruptcy. shall include . . . hereditaments . . of CAVE, J., made the order asked for, bat stated that no any tenure unless where there are words to ... 1 proceedings were to be taken in the action without leave restrict the meaning to tenements of some particular of the court.-SOLICITORS, Beall & Co. tenure"?
COMMITTAL-VACATION BUSINESS.-In the case of ln re a 20, Threadneedle-street, E.C., Oct. 11.
Solicitor, also before Cave, J., on the 12th inst., a motion was [As it happens, the oversight is on the part of our made for the committal of a sollcitor for non-compliance correspondent. At the beginning of our article on the with an order of the court ordering the repayment by him Conveyancing Act this week he will find his first para of sums for which he was responsible. An objection wis graph treated in a manner which we hope he will find
taken that applications for com mittal or attachment were satisfactory.
stated by the late Vice-Chancellor Stuart not to be properly
vacation business. CAVE, J., said that to allow such an We do not understand to what extent our corre
objection would be to make the vacation a poriod of impunity. spondent thinks that the Act is entitled to a " loyal re
The motion was ultimately arranged to stand over. ception." If he means to express the opinion that we are not doing our duty to the profession by pointing out its numerous defects, whether verbal or otherwise, we do not think our readers will agree with him. We are quite unable to follow our correspondent in his criticism
SOCIETIES. upon our question, " When is a sale made when the contract is entered into, or when it is completed ?" We
INCORPORATED LAW SOCIETY. cannot find the “four previous sub-sections” which, according to our correspondent, show plainly that the
ANNUAL PROVINCIAL MEETING. contract constitutes the sale. Indeed, we seriously
[FROM OUR SPECIAL REPORTER.] doubt whether most people would, by “sales properly The eighth annual provincial meeting of the Iacorso called " understand "contracts of sale"; and porated Law Society was held at the Pavilion, Brighton, on we thus find, both in the interpretation clause and Tuesday and Wednesday, the 11th and 12th inst. The in sub-section (8. an additional germ of doubt and society was warmly welcomed to the town by the mayor ambiguity.
(Alderman W. Smith), who wore his robes and chain of With respect to the consolidation of mortgages, we
THE PRESIDENT'S ADDRESS. repeat our opinion that the language of section 66 (which
The PRESIDENT (Mr. C. C. Druce) then delivered the our correspondent ought to have cited with fewer blanks
| opening address as follows:if he wished to get at its true significance) has no bearing
1. After some introductory observations, the president said : upon the matter, and though we do not say that a soli.
-By the vacancies created in two of the three chiefships an
Both citor would incur legal liability by omitting to provide opportunity was presented for exercising the powers, given against the application of section 17, yet we are clear by the Judicature Act of 1873, of abolishing the distincthat there is nothing in section 66 to relieve him from tion of the offices of the Chief Justice of the Common Pleas any liability which may exist independently of that and the Chief Baron of Exchequer from those of the puisne section.
judges, and of reducing the number of divisions of the As to the 13 & 14 Vict. c. 21, s. 4, if our correspond.
High Court of Justice. This consolidation of the three
common law divisions bas, I think, fully borne out the ent had looked at the context of the words which he cites,
prediction to which the Lord Chancellor gave expression in we think that he would never had asked his last question.
first proposing it, that “there would be a better economy and The words of the Act, are “land' shall include mes
more equal distribution of judicial power, and greater elastisuages, tenements, and hereditaments, hou ses, and build. city, as well as regularity, in all the arrangements for the ings, of any tenure," &c. Does our correspondent really transaction of business." The existence of three separate. seriously contend that this includes incorporeal heredita acd distinot divisions, each with its own lists and arrange. ments? At all events Mr. Dart's opinion aceords with ments, was necessarily an obstruction to the dispatch of our own-see 1 V. & P. 206, note (Z.)- ED. S. J.] business, whilst their raison d'être had ceased to exist when
all distinction in the nature of their business and the titles of their judges was done a way. It became, indeed, little better than a farce when three judges, one perhaps from
each of the three divisions, might be seen sitting together Mr. Commissioner Kerr is reported by the Globe to on one day to constitute a court in Banc of the Exchequer have recently informed a plaintiff that "there are two Division, and on another day to constitute & court in Band classes of people connected with companies, rogues and of the Queen's Bench or Common Pleas Division, according fools, and you may elect to which class you would like to to the name of the court in which they sat. It was merely trong.”
in accordance with common sense that so anomalous a state of things should have been put an end to and replaced hy | tors, was forwarded by the council to the Lord Chancellor, one divisional court, with one chief at its head, and ore list who was at the same time informed of the reasons which of its business. I may, perhaps, remind you in passing, had led to the framing of the Bill, and was asked to receive that this step was taken with the express approval of our a deputation on the subject. The Lord Chancellor suggested society, who presented to the House of Commons a petition in reply that, before taking the matter into consideration, it in favour of the measure.
would be well to ascertain whether any steps had been taken A further alteration in the constitution of the courts has
by the benchers of the several Inns of Court in consequence been effected by an Act introduced into the House of Lords
of a communication addressed to them by Lord Cairns wben by the Lord Chancellor towards the end of last session. By
Chancellor. Accordingly, the treasurers of the four Iuos of this Act the offire of Master of the Rolls has been traps.
Court were communicated with by our late president, and, in ferred from the Chancery Division to the Conrt of Appeal,
the result, resolutions were passed by the lons to the effect and bis place as a judga of first instance is to be filled by
that a student who, previously to his admission at an Ion of
Court, bad been a solicitor in practice for not less than five the appointment of another justice of the High Court. The President of the Probate Division by tbe same Act hecomes
years, but had ceased to be a solicitor before admission as a an ex-officio member of the Court of Appeal. We shall
student, might, after having kept four terms, be called to the thue bave three divisional courts-videlicet, the Chancery
bar, alter passing the bar final examination. Thus, although Division, consisting of five prisne judges, with the Lord
the term of probation intervening between abandoning the Chancellor as its president; the Queen's Bench Division, com.
one branch of the profession and entering upon the other bas
not been (as it had been hoped it would have been) altoprising fourteen nuisne judges, and presided over by the Lord Chief Justice of England; and the Probate Division, with
gether done away with, it has been reduced from three years two poisne judges, the renior of whom presides. The Court
to one year, and in this way a material concession has been of Appeal, on the other hand, will be composed of the three
obtained. For a solicitor desirons of going to the bar to presidents of the divisional courts as its ex-offico members,
have to deprive himself of all professional earnings for a and of five Lords Justices of Appeal, presided over by the
space of three years was, no doubt, in many instances, an Master of the Rolls, as its permanent memberg. It is,
actual prohibition to the gratification of his wish; the perhaps, to be regretted that the judges of the Court of
sacrifice of time and money was too great to be incurred.
But I do not think that this can any longer be said. Appeal have not been relieved from the obligation to go
It is circuit. The interruption to the business of the Court of
not any very great hardship for a man to have to devote Appeal which is occasioned by the absence on circuit of three
the space of one year to the preparation required to fit him of its members during some ten or twelve weeks of the legal
for the other branch of the profession. That some prepara.
tion is requisite I do no pot think can be denied. The year, is a matter of po sligbt consequence ag tending to delay an increasing accumulation of arrears. Possibly a rearrange
practice of pleading and of advocacy is of course not un. ment of the circuits would enable the judges of the Court of
familiar to the solicitor, still he has but few opportunities Appeal to remain in town, without its being found necessary
of exercising himself in either, and a year spent in this to augment the present number of judges of the High Court.
study will be by no means thrown away. During the Bot, even should this course pot be practicable, I do not
year which, in the course of my articles, I passed in a think it conld be said that the cost of one or two more
special pleader's and a conveyancer's chambers, I learned judges of first instance would be too much to pay for a
not only a little law, but also, which I have since found ereedy determination of appeals. However, a point of more
more useful, where and how to look up law I did not immediate interest to us is that the Bill,' as introduced in
know. It will no doubt be said, and truly said, that the Lorde, provided that the district registrars to be appointed
there is equal if not greater peed for an interval of preparashould be either harristers or solicitors.
tion in the case of a barrister who wishes to become a
In co-operation with our friends in the North, we succeeded in inducing
solicitor. But the mere fact that a period of probation the Attorney-General to alter this provision (in the House of
has not been insisted on in the one case does not prove Commons), so as to leave these registrarships to the solicitors
that it is unnecessary in the other; and I should imagine
that, as a matter of fact, a member of the bar would only.
scarcely venture to start in business as a solicitor on his I have caused copies of this Act, and of Lord Cairns' Acts
own account without spending at least twelve months in for the amendment of the laws of conveyancing and of the remuneration of solicitors, to be circulated among the mem
acquiring a knowledge of the practical working of the bers. On the last of these I had thought of offering some
profession in a solicitor's office. On the whole, then, I do
not think that the compromise which has been effected remarks, but considerations of time and space, and of the
with the Inds of Court in regard to the matter is one exceptional duties which will probably devolve on me per.
which is other than satisfactory. At all events, we do sonally as a commissioner under that Act, and the expectation of a separate, and therefore better, paper on the snbject
not by its acceptance preclude ourselves from endeavour
ing to obtain a further concession, should we find that our being contributed by some member, have led me to refrain from the attempt..
members are still unduly hindered in passing into the But a more important change than either that I have men
other branch of the profession. tioned has been initiated since our last meeting, by the ap.
Let us now turn our attention from those changes which pojotment of a committee to consider the reforms which are | have taken place, or have been provided for, to those necessary to reduce the expense and delays of our legal pro. | matters of remedial legislation which are still the subject cedure. That there is great scope for improvement in of expectation. First amongst these is the subject of this respect no one who reads the reports of cases in the
Bankruptcy Reform, the urgency of which imperatively daily papers can doubt. Wben one reads of a case where it demands attention. Louder and louder grows the cry of onts £150 to decide a dispute with reference to the dyeing dissatisfaction from the trading community of the country of some wool, in which £13 or £14 is involved, or sees the in general at the scandals to which the existing adminismany instances of hardship consequent on delay, amonnting tration of our bankruptcy procedure gives rise. Bankers, sometimes to almost a denial of justice, it becomes manifest merchants, and manufacturers alike join in condemnation that our procedure is defective. The report of the of a system which allows the dishonest trader to rid committee, whioh has been laid before the indges for himself of his embarrassments at a minimum of personal their consideration, has not us yet been made public, and inconvenience, and his assets to be diverted from his therefore we can only hope that it may be the means of creditors into the pockets of those who are employed to salatary changes being 'introduced to remedy the ex. distribute them. Experience has long since shown that, isting evils. When that report is published, I shall gladly 80 long as the investigation and control of a debtor's redeem the pledge given by my predecessor to print and affairs are left in the hands of his creditors, there is but circulate it, and call a special general meeting for its con little probability of any thorough or satisfactory inquiry sideration.
as to the causes of his failure, or as to the disposal of his I ought not to pass unnoticed that which [ trust is a not property. Creditors are, and are always likely to be, unsatisfactory settlement of a matter wbich for some time supine in regard to these matters. I mentioned this to past has been the subject of complaint on the part of somethe Attorney-General while he was, or was understood to of the members of our profession. I refer to the call of be, in charge of the Bankruptcy Bill introduced last solicitors to the bar. In pursuance of a resolution passed session, and he agreed that there lay the difficalty to be at the annual meeting of our society in London last Fear, a contended with. Creditors can hardly be expected to Bill, containing provisions for facilitating the call of solici. | readily respond when called upon to sacrifice time, which
is of immediate value to them, in order to obtain perhaps should from time to time assign a judge for that purpose, a merely nominal dividend upon their debts. Still less but so that no additional judye should be appointed until can they be expected to be impelled, by the motive of | the number of such judges, other than the Lord Chancellor serving the community at large in the detection and ex- | and the Master of the Rolls, should be reduced below four. posure of koavery, to a tediously strict examination of the This provision would simply perpetuate the present unsatisdebtor's business. It is not strange tbat they should factory state of things-for bankıuptcy matters would only prefer to accept whatever is offered to them, or even to receive, as now, a portion of the attention of one of the write off their debt as a bad one, rather than throw good chancery judges, and thus the bulk of cases, or indeed money after bad in the shape of long, expensive, and almost the whole of them, with the exception of county infractuous investigations. It is, I think, then evident that court appeals, would be left to the decision of the registrars. we must look elsewhere than to the creditors for a means of | Now, far be it from me to soggest that the registrars do not rendering more certain that exposure and publicity which exercise great care and diligence in their conduct of the alone can serve to check reckless or dishonest trading. It business, or that they do not devote their best endeavours to bas been aptly observed that no Bankruptcy Act will ever be satisfactorily dispose of it. But it should be remembered satisfactory which does not guarantee to the creditors twenty that they were originally appointed with a view to the disshillings in the pound. This observation, however, has been charge of administrative ratber than judicial fanctions. I met with the remark that even then the creditors would not venture to think that in a great number of cases in which be content unless interest were added to the amount of their an appeal is now instituted, the parties would rest satisfied debts, And a glanoe at the bankruptcy legislation of the with the decision of a judge. But however this might be, present century will show that these criticisms are not ill. the gain to the public in the more efficient and uniform founded. No less than seven distinct Acts have been administration of the bankruptcy law would more than passed in a space of forty-four years, thus showing the compensate for the extra cost. average life of a Bankruptcy Aot to be between six and By far the most necessary reform, however, is the repeal seven years. And it is worth wbile to note the shifting of the 125th and 126th sections of the existing Act, which character of this legislation ; how, for instance, the changes provide for liquidation by arrangement and compositions have been rung between official supervision by the court without imposing any proper check upon the applioation of and private control by the creditors; how the court's pro them to guard against their being abused. The repeal of ceedings bave been condemned as dilatory and expensive, these two sections has been recommended, not only by this and private arrangements been authorized in substitution ; society, but by a committtee of the House of Commons, by and how these have been condemned in their turn, and á the Bankers' Institute, and by the Chambers of Commerce. resumption of authority by the court insisted upon. The To this recommendation, the Bill wbich was introduced last fact is that it is well-nigh impossible to provide a system session, and will probably be reintroduced next year, prowhich will work satisfactorily in regard to all bankrupt- posed to give effect. And an instructive insight cies. To say that an equal degree of supervision is re- mischievous character of these two sections is afforded by quired for all is to state what is obviously inaccurate. the comments of Mr. Chamberlain when introducing it. Where a leading commercial firm fails, and its affairs are After showing that the number of liquidations and composi. placed in the hands of solicitors and accountants of bigbtions had been steadily increasing until they had reached a standing, there cannot be the same occasion for guarding total in the year 1879 of very nearly 12,000 (or about 93 per against fraud as in the case of small traders. A careful cent. of the total number of proceedings under the Act), he discretion should, therefore, be exercised as to when and I proceeded to explain the reasons why these provisions had how the court or other authority should interfere. For, as been so largely resorted to. He pointed out how, under secits influence will be salutary if directed to those cases in tion 125 of the Act, it was possible for a debtor, who found which it is really required, so will it do rather harm than bimgelt unable or unwilling to pay, to have a meeting of good by hampering and increasing the cost of tbe proceed. creditors summoned on his behalf at a time and place con. ings, if applied to cases in which it is unnecessary. Clearly, | venient to himself, and certainly in many cases inconvenient then, much must depend upon the manner in which the | to the majority of the creditors. At this meeting the creditors enabling provisions of any Bankruptcy Bill that may be present, either by themselves or by proxies (creditors in some passed are worked by the courts. And with a view to their cases in friendly collusion with the bankrupt, in other cases efficient working I think that the advisability of having at fictitious, io not a fow cases fraudulent), might by the requithe head of the bankruptcy administration a judge who is site majority in number, and three-fourths in value, elect a fully conversant and experienced in the law and practice trustee, agree to a liquidation, dispense with the security of bankruptcy, and who will devote his whole time to hear which the Act required the trustee to give, get rid of all in. ing bankruptcy cages, cannot be too strongly insisted on. vestigation of the previous conduct and affairs of the bank. It has been suggested, and the suggestion formed part of rupt, discharge the debtor, although guilty of fraud or the Bill introduced last session by Mr. Cbamberlain, that scandalous negligence, and although the assets showed no the Board of Trade should be intrusted with certain powers | divideod, and this arrangement might be imposed upon a of supervision. But it may be doubted whether such dissentiog minority of bona fide creditors. Under this powers would not be more properly intrusted to a judge, arrangement there was no public inquiry whatever, no exand, in certain circumstances, to his registrars acting under
amination on oath, and no security ior the protection of the his direction. The Board of Trade must necessarily act
public interests which were involved in every insolvency. upon the advice of its officers, and these may and probably Under this system the position of a trustee was an enviable would bave no special knowledge of the principles or prac.
one, provided he was not troubled with moral scruples. He tice of bankruptcy. A judge, on the other hand, if intrusted was uncontrolled as to the disposition of the estate, and the with the full powers created by the Bill, would be enabled management of it; be might appoint, and often did appoint, to bring the whole system into harmonious working, and his own committee of inspection, from whom he was bound thus the difficulties arising from divided authority would be to take his instructions. The accounts of the trustee had
to take his instructions. The acco overcome. You are most of you doubtless aware that our been in more than one instance audited by persons who society last year drew up and forwarded to the Government could not write their own names. The trustee could make certain suggestions as to the alterations and amendments any arrangement for the discharge of the debtor, he could which, in their judgment, ought to be made in the bank. | dispose of the funds, he could vote his own remuneration, he ruptoy law. Prominent amongst those suggestions was one could tax his solicitor's bill, he could audit the bills of the to the effect that, “ as in the Probate Division, a judge ought other professional persons he employed, he could audit his to be appointed to give his whole time to bankruptcy, and own accounts, granting himself a release, and retire to the the hearing of all important matters and appeals from the bosom of his family, satisfied that he had complied with all registrars and county court judges ; and the Court of Bank. | the legal requirements of the statute. He might, if he liked,
o form a division of tbe High Court of Justice.", declare a dividend, or he might delay doing 80. He might Now the Bill as introduced by the Government into the keep the creditors' money in his own hands, and use it for House of Commons, although it to a great extent adopted bis own purposes; he might appropriate uodivided balances the suggestions of our society, omitted to give effect to the and unclaimed dividends; he migbt assist in the creation of
and unclaimed dividend8 ; 18 might as one I have cited. It provided that matters of bankruptcy |
fictitious claims, certain that in such circumstances dividends should be assigned to the Chancery Division of the High could not be claimed ; and in fifty different ways he might Court of Justice, and be disposed of by one of the judges rob the creditors to his own advantage. Is it then watter
rob the creditors to.. attached to that division, and that the Lord Chancellor for surprise that reckless or dishonest trading should abound
. when such facilities as these are afforded for getting quit of perfect and incomplete statement of legal principles.
the consequences of it ? Or, is it not rather natural that both There is doubtless some truth in these objections. It is trustees and debtors should largely avail themselves of necessarily impossible to frame a perfect code wbicb eball provisions wbich might well bave been framed expressly to in itself contain an exact principle of law to fit every state epable them to benefit themselves at the expense of the l of oiroumstances which may arise. It is consequently out creditors? It is to be hoped that the abolition of liquida of the question tbat a code could be a complete sabstitute tions by arrangement, the restriction of compositions to a for tbe whole of the text-books and reported decisions which minimum payment of five shillings in the pound, and this lat present form our materials for collecting the general subject to the approval of the court, and the adoption of one
principle which is applicable to a particular case. Incom. opiform mode of proceeding-viz., by bankruptcy, in all cases pleteness must be the result even of the greatest possible of insolvency, may tend to ameliorate the present state of
care in its preparation. But it would surely be possible to things. There is one matter, however, in regard to which
codify at any rate some portions of our law with sufficient the provisions of our bankruptcy laws ought to be most
completeness to be of immense service. You are aware stringent, and that is, the granting of a discharge to the
that steps have already been taken towards embodying bankrupt. Whilst justice and public policy require that the the whole of the criminal law in one Act of Parliament in man who, by mere misfortune or accident, becomes unable
the shape of a Criminal Code. When the proposed Bill is to meet bis engagements, should be given the opportunity of
passed, we sball have in a compact form a substitute for & starting afresh in business, it done the less demands that the
vast nomber of statutes and decisions contained in some reckless or fraudulent irader shall not be able lightly to cast
hundreds of volumes, the examination and comparison of aside the claims of his creditors, and free himself from the control of the court. And I feel confident that no more
which now involves a great amount of time and trouble effectual means can be found of checking the offences of
and consequent expense. And if the result of a criminal overtrading and fraudulent bankruptcy than to enact that
code be to dispense with or, at any rate, to minimize this the proof of these or similar offences having been committed
labour, we may, I think, look to a still greater gain from a sball absolutely debar the bankrupt from obtaining his dis.
codification of other branches of the law. The object of charge, except in the event of his paying his creditors in full.
the criminal law is to deter persons from the conIf (as is proposed by the Bill) a discretion be given to the
mission of crime, and not to confer righta apon court to grant or withbold the discharge in such cases, it is
them. A general and widely-spread knowledge, therenot unlikely to be leniently exercised, and thus the deterrent
fore, of the criminal law is not 89 useful and effeot of the provision would be greatly lessened, or altogether
important an object as the rendering familiar to the public lost.
the principles, for instance, of mercartile law. For the It is satisfactory to note that it is proposed to place a
purpose of our mercantile law is to inform the public
of their rights, and an accessible, concise, and intelligible restriction upon the present most mischievous and facile use of proxies. Hitherto, as you are aware, & proxy has constituted
statement of the several subjects which it embraces would the person to whom it has been given the general agent and
enable the mercantile community to understand and apprecirepresentative of the creditor signing it. The proxy pro
ate their rights and liabilities towards one another, and to vided for by the Act of 1869 gives the dominee of the
transact their business and frame their conduct towards one ereditor authority to act for him
They would anotber in accordance with wbat is the law.
"in all matters under the Act, of whatsoever kind, as fully as the credito: bimself
thus feel a far greater amount of security through being could act.” The course adopted, only too frequently I fear,
competent to judge as to what transactions they could carry has been to canvass for, or even to purchase from creditors,
out, and, generally, as to their position. Take, for example, a sufficient number of these documents to give the debtor,
the case of a German mercbant. In the majority of instances or bis solicitor, or his trustee, the power of controlling the
in which he is desirous of ascertaining his legal position votes at a meeting, and thus to enable them to retain for
in reference to a bill of exchange, he is able easily to do so themselves the bulk of the estate, wbilst the creditors have
by looking at the German Code relating to negotiable instrogratefully to accept the few. crombs of dividend wbioh are
ments. Moreover, by a study of this code be can, with
slight difficulty, obtain at least a general knowledge of the tbrown to them. Under the proposed new system, however,
branch of the law contained in it. In this country, how. smaller scope will be given for such scandals. The careless or the friendly creditor will pot be allowed to wash his
ever, so long as our law retains its present cumbrous and bands of the matter so readily.
unwieldy form, it is almost impossible for any but lawyers to A proxy will “pot be
obtain more than a vague notion of its general principles. Available except for the purpose of voting at a specified
These bave to be laboriously extracted from a rast number of meeting, or an adjournment thereof.” Moreover, the ap
statutes and decided cases, which are themselves not uspointment as proxy of the solicitor for the bankrupt will
frequently difficult, if not impossible, to reconcile one with be prohibited altogetber; and whoever may hold a
another. I do not say that this labour would be altogether proxy will not be allowed to use it for the porpose of
saved by a code. That would be to assume the possibility of voting for the appointment of himself as trustee, unless
a statement of the law which should be not only accurate specially authorized to do so by the terms of the proxy but exhaustive. Cases will always arise which require the itself.
application of some new principle, or, any rate, the modi. It would, doubtless, be bold to propbesy an entire cessa fication of an old one; and in such casts the analogy of tion of the present evils as the outcome of the reforms to former decisions might be of assistance. But I do think wbich I have referred. A panacea is an impossibility, that were many, if not at all, of the brancbes of our law and cannot be devised. We must rest satisfied with the reduced to the form of a code containing a concise and ageurhope that the many years of consideration which have ate statement of general principles covering the majority of been devoted to the subject may, ere our next meeting, probable cases, the advantages would be enormous. The have resulted in the introduction of, at all evente, a far administration of justice would become more certain, tte less defective Aystem of bankraptoy procedure than at labours of judges and of lawyers generally would be iscil. present exists.
tated, and by rendering law more intelligible and accessible, Let me, before I conclude, devote a few observations to a code would be the means of creating a wider and more a subject which yearly grows more urgent, but to which public interest in the study of it. Stripped to a great extent too little attention has, I think, been paid. I refer to the of its technicalities, and extracted from its present labyrinth codification of our law. I am aware that many and diverse of decisions, law would become an interesting and attractive opinions are entertained both as to the advisability and as study, within the reach of the general body of educated to the practicability of framing a code. It is objected by men. some tbat any attempt at a concise statement of the whole But there is a still greater benefit which might fairly be of the English law wonld tend to ambiguity rather than expected to accrue. In order to render their work to any clearpees; that it would add to, and not diminisb, tbe extent accurate and complete, it would be necessary for the doubts and difficulties of the law, by affording fresh framers of the code to travel over the whole range of possible matter for judicial interpretation without enabling us to cases. In doing this they would bave brought to their dispense with the existing accumulation of decided cases attention many cases as to which no rule or principle of lar and statutory enactments; that it would detract from tbe | has been laid down. The conflict of authority and tbe 16present malleability or elasticity of the law, by allowing consistencies in various decisions would also be made Jess scope for its adjustment to changing circumstances ; l evident. Both these defects would be remedied in drawing and that, at best, it could not be otherwise than an im• p the code. Rules would have to be inserted to cover the