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liability (in relation to the question of consolidation) "by reason of his omitting ... in any . . . instrument, or in connection with any . . . transaction, to negative the . . . implication or application of any . . . provisions . . . which . . . are by this Act made applicable to any . . . transaction." I give the minimums of quotations for the sake of clearness, but is not the language comprehensive enough in all conscience to cover the omission to express an intention contrary to—i.e., to negative —the freedom from the consolidation conferred by the Aot?
With reference to the discrepancy which yon think exists between the common-form conditions provided by the Act and the rules in section 2 of the Vendor and Purchaser Act, 1874—the latter in your opinion applying only to contracts for the sale of "land," and not to an incorporeal hereditament, to which the former are applicable—have you not overlooked 13 & 14 Vict. c. 21, a. 4 (An Act for shortening the language used in Acts of Parliament), which provides that "the word 'land' shall include . . . hereditaments ... of any tenure unless where there are words to . . . restrict the meaning to tenements of some particular tenure "?
John Hughes. 20, Threadneedle-street, E.C., Oct. 11.
[As it happens, the oversight is on the part of our correspondent. At the beginning of our article on the Conveyancing Aot this week he will find his first paragraph treated in a manner which we hope he will fiud satisfactory.
We do not understand to what extent our correspondent thinks that the Act is entitled to a "loyal reception." If he means to express the opinion that wc 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 upon our question, " When is a sale made—-when the contract is entered into, or when it is completed?" We cannot find the "four previous sub-sections" which, according to out correspondent, show plainly that the contract constitutes the sale. Indeed, we seriously doubt whether most people would, by "sales properly Go called" understand "contracts of sale"; and wo thus find, both in the interpretation clause and in sub-section (8), an additional germ of doubt and ambiguity.
With respect to the consolidation of mortgages, we repeat our opinion that the language of section 66 (which our correspondent ought to have cited with fewer blanks if he wished to get at its true significance) lias no bearing npon the matter, and though we do not say that a solicitor would incur legal liability by omitting to provide against the application of section 17, yet we are clear that there is nothing iu section 66 to relieve him from any liability which may exist independently of that section.
As to the 13 & 14 Vict. c. 21, s. 4, if our correspondent had looked at the context of the words which he cites, we think that ho would never had asked his last question. The words of the Act, are "' land' shall include messuages, tenements, and hereditaments, houses, and buildings, of any tenure," &c. Does our correspondent really seriously contend that this includes incorporeal hereditaments? At all events Mr. Dart's opinion aceords with our own—see 1 V. & P. 206, note (Z.)—Ed. S. J.]
Mr. Commissioner Kerr is reported by the Globe to have recently informei a plaintiff that "there are two classes of peopla connected with companies, rogues and fools, and you may elect to which diss yon would like to le'ong."
CASES OF THE WEEK.
Practice—Winding Up Of Company— Appointment Op Special Examiner To Take Evidence—Companies Act. 1862, s. 115.—In the case of In re The Working lien's Mutual Society (Limited), before Cave, J., sittiog in the Rolls Court as Vacation Judge, on the ISJttl inat., an order had been previously made for the compulsory winding up of the company, and an official liquidator appointed. It appeared that the late manager of the company, Ledru Rollin Reynolds, had misappropriated a considerable portion of the assets of the company, and an action had been commenoed t) recover the came. Reynolds had become bankrupt, and meetings of his creditors been held, but as yet no trnstee appointed. An ex parte application was now mule on behalf of the official liquidator under the Companies Act, 1862, s. 115, for the appointment of a special examiner in the winding up ti at once take evidence as to the misappropriation, on the ground that such a course would bs more advantageous than waiting for the appointment of a trustee in bankruptcy. Cave, J., made the order asked for, bnt statnd that no proceedings were to be taken in the action without leave of the court.—Solicitors, Beall & Co,
Committal—Vacation Business—la the case of In re a Solicitor, also before Cave, J., on the 12th inst, a motion was made for the committal of a solicitor for non-compliance with sn order of the court ordeiin; the repayment by him of sums for which he was responsible. An objection was tnken that applications for committal or attachment were slated by the late Vice-Chancellor Stmrt not to be properly vacation business. Cave, J., said that to allow sucli an objection would be to make the vacation a period cf impunity. The motion was ultimately arranged to stand over.
INCORPORATED LAW SOCIETY.
ANNUAL PROVINCIAL MEETING.
[from Our Special Reporter.]
The eighth annual provincial meeting of the Incorporated Law Society was held at the Pavilion, Brighton, on Tuesday and Welnesd*y, the llth and 12th inst. The society was warmly welcomed to the town by the mayor (Alderman W. Smith), who wore his robes and chain of office.
The President's Address.
The President (Mr. C. C Drucs) then delivered the opening address as follows: —
After some introductory observations, the president said: —By the vacancies created in two of the three chiefships an opportunity was presented for exercising the powers, given by the Judicature Act of 1873, of abolishing the distinction of the offioes of the Chief Justice of the Common Pleas and the Chief Baron of Exohequer from those of the puisne judges, and of reducing tho number of divisions of the High Court of Justice. This consolidation of the three common law divisions has, I think, folly borne out the prediction to which the Lord Chancellor1 gave expression in first proposing it, that " there would be a better economy and more equal distribution of judicial power, and greater elasticity, as well as regularity, in all the arrangements for the transaotion of business." The existence of three separate and distinct divisions, each with its own lists and arrangements, was necessarily an obstruction to the dispatch of business, whilst their raiton d'etre had ceased to exist when all distinction in the nature of their business and the titles of their judges was done away. It became, indeed, little better than a farce when three judges, one perhaps from each of the three divisions, might be seen sitting together on one day to constitute a court in Bane of the Exchequer Division, and on another day to constitute a court in. Bane of the Queen's Bench or Common Pleas Division, according to the name of the court in which they sat. It was merely in accordance with common sense that so anomalous a stats of things should have been put an end to and replaced by one divisional court, with one chief at its head, and ore list of its business. I may, perhaps, remind you in passing, thst rliis step was taken with the express approval of oar society, who presented to the House of Commons a petition in favour of the measure.
A fnrther alteration in the constitution of the courts has been effected by an Act introduced into the House of Lords bv the Lord Chancellor towards the end of last session. By this Act the oftVeof Master of the Rolls has been transferred from the Chancery Division to the Conrt of Appeal, and his place ss a judge of first instance is to he filled by the appointment of another justice of the High Court. The President of the Probate Division by tbe same Act becomes sn ex-ofUcio member of tbe Court of Appeal. Wc shall thus have three divisional court"—videlicet, the Chancerv Division, consisting; of five pnisne judges, with the Lord Chancellor as its president; the Queen's Bench Division, comprising fourteen rnisne judges, and presided ovr bv the Lord Chief Jnstire of Kne'and; and the Probate Division, with two pnisne judges, the senior of whom presides. The Court of Appeal, on the other hand, will be composed of the three presidents of the divisional courts as its ex-tflic'o members, and of five Lords Justices of Appeal, presided over by the Master of the Bolls, as its permanent members. It i«, perhaps, to be regretted that the judges of the Court of Appeal have not b'en relieved from the obligation to go circuit. Tbe interruption to the business of the Court of Appeal which is occasioned bv the absence on circuit of three of its members during soire ten or twelve weeks of the legal year, is a matter of no slight consequence as tending to delay an increasing accumulation of arrears. Possibly a rearrangement of ihe circuits would enable the judges of the Court of Appeal to remain in town, without its being found necessary to angment the present number of judges of the High Court. But, even should this course not be practicably I do not think it conld he said that the cost of one or two more judges of first instance would be too much to pay for a speedy determination of appeals. However, a point of more immediate interest to us is that the Bill, as introd"ced in the Lords, provided that the district registrars to be appointed should be either barristers or solicitors. In co-oneration with our friends in the North, we succeeded in inducing tbe Attorney-General to alter this provision (in the House of Commons), so as to leave these renstrarehips to the solicitors onlv.
I have caused copies of this Act, and of Lori Cairns' Acts for the amendment of the laws of conveyancing and of the remuneration of solicitors, to bo circulated among the members. On the last of these I had thought of offering some remarks, but considerations of time and space, and of the exceptional duties which will probably devolve on me per. sonally as a commissioner tinder that Act, snd the expec'ation of a separate, and therefore better, paper on the subject being contributed by some member, have led me to refrain from the attempt.
But a more importqnt change thsn either that T have mentioned has been initiated since our last meeting, by the appoiotment of a committee to consider the reforms which are necessary to reduce the expense and delays cf our legal procedure. That there is great scope for improvement in this respect no one who reads the reports of cases in the daily papers can doubt. When one reads of a case where it ovts £160 to decide a dispute with reference to the dyeing of some wool, in which £13 or £14 is involved, or sees the many instances of hardship consequent on delay, amounting sometimes to almost a denial of justice, it becomes manifest that our procedure is defective. The report of the committee, whioh has been laid before the jndees for their consideration, has not as yet been made public, and therefore we can only hope that it may te the mesns of salutary chantrcs being introduced to remedy the existing evils. When that report is published, I shall gladly redeem the pledge given by my predecessor to print and circulate it, and call a special general meeting for its consideration.
I onght not to pass unnoticed that which I trust is a not unsatisfactory settlement of a matter which for some time past has been the subject of complaint on the part of some of the members of our profession. I refer to the call of solicitors to the bar. In pursuance of a resolution passed at the annual meeting of our society in London last year, a Bill, containing provisions for facilitating the call of solici
tors, was forwarded by the council to the Lord Chancellor, who was at the same time informed of the reasons which had led to the framing of the Bill, and «as asked to receive a deputation on the subject. Tbe Lord Chancellor suggested in reply that, before taking the matter into consideration, it would be well to ascertain whether any steps had been taken by the benchers of tbe several Inns of Court in consequence of a communication addressed to them by Lord Cairns when Chancellor. Accordingly, the treasurers of the four Inos of Court were communicated with by our late president, and, in the result, resolutions were passed by the Inns to the effect that a student who, previously to his admission at an Ina of Court, had been a solicitor in practice for not less than five years, but had cea<ed to be a aolicitor before admission as a student, might, after having kept four terms, be called to the bar, ader passing the bar final examinati in. Thus, although the term of probation intervening between abandoning the one branch of the profession and entering upon the other has not been (ss it had been hoped it would have been) altogether done away with, it has been reduced from three yean to one year, snd in this way a material concession has been obtained. For a solicitor desirous of going to the bar to have to deprive himself of all professional earnings for a space of three years was, no doubt, in many instances, an actual prohibition to the gratification of his wish; the sacrifice of time and money was too great to be incurred. But I do not think that this can any longer be said. It is not any very great hardship for a man to have to devote the space of one year to the preparation required to fit him for the other branch of the profession. That some preparation is requisite I do no not think can be denied. Tbe practice of pleading and of advocacy is of course not unfamiliar to the solicitor, still he has but few opportunities of exetcis<ng himself in either, and a year spent in this study will be by no metns thrown away. During the year which, in the course of my articles, I passed in a special pleader's and a conveyancer's chambers, I learned not only a little law, but also, which I have since found more useful, where and how to look up law I did not know. It will no doubt be said, and truly said, that there is equal if not greater need for an interval of preparation in the case of a barrister who wishes to become a solicitor. But the mere fact that a period of probation has not been insisted on in the one case does not prove that it is unnecessary in the other; and I should imagine that, as a matter of fact, a member of tbe bar would scarcely venture to start in business as a solicitor on his own account without spending at least twelve months in acquiring a knowledge of the practical working of the profession in a solicitor's office. On the whole, then. I do not think that the compromise which has been effected with the Inns of Court in regard to the matter ia one which is other than satisfactory. At all events, we do not by its acceptance preclude ourselves from endeavouring to obtain a further concession, should we find that oar members are still unduly hindered in passing into the other branch of the profession.
Let us now turn our attention from those changes which have taken place, or have been provided for, to those matters of remedial legislation which are still the subject of expectation. First amongst these is the subject of Bankruptcy Reform, the urgency of which imperatively demands attention. Louder and louder grows the cry of dissatisfaction from the trading community of the country in general at the scandals to which the existing administration of our bankruptcy procedure gives rise. Bonkers, merchants, and manufacturers alike join in condemnation of a system which allows the dishonest trader to rid himself of his embarrassments at a minimum of personal inconvenience, and his assets to be diverted from his creditors into the pockets of those who are employed to distribute them. Experience has long since shown that, so long as the inveatigation and control of a debtor's affairs are left in the hands of his creditors, there is but little probability of any thorough or satisfactory inquiry as to the causes of his failure, or as to the disposal of hu property. Creditors are, and ore always likely to be, supine in regard to these matters. I mentioned this to the Attorney-General while he was, or was understood to be, in charge of the Bankruptcy Bill introduced last session, and he agreed that there lay the difficulty to bs contended with. Creditors can hardly be expected to readily respond when called upon to sacrifice time, which is of immediate value to them, in order to obtain perhaps a merely nominal dividend upon their debts. Still less can they be expected to be impelled, by the motive of serving the oommunity at large in the detection and exposure of knavery, to a tediously strict examination of the debtor's business. It is not strange that they should prefer to accept whatever is offered to them) or even to write off their debt as a bad one, rather than throw good money after bad in the shape of long, expensive, and infrnctuous investigations. It is, 1 think, then evident that we must look elsewhere than to tbe creditors for a means of Tendering more eertnin that exposure and publicity which alone can serve to check reckless or dishonest trading. It bas been aptly observed that no Bankruptcy Act will ever he satisfactory which does not guarantee to tbe creditors twenty shillings in the pound. This observation, however, has been met with the remark that even then the creditors would not be content unless interest were added to the amount of their debts. And a glanoe at the bankruptcy legislation of the present century will show that these criticisms are not illfounded. No lets than seven distinct Acts have been passed in n space of forty-four years, thus showing the average life of a Bankruptcy Aot to be between six and seven years. And it is worth while to note the shifting character of this legislation ; how, for instance, the changes have been rung between official supervision by the court and private control by the creditors; how the court's proceedings have been condemned as dilatory and expensive, and private arrangements been authorized in substitution; and how these have been condemned in their turn, and a resumption of authority by the coutt insisted upon. The faot is that it is well-nigh impossible to provide a system which will work satisfactorily in regard to all bankruptcies. To say that an equal degree of supervision is required for all is to state what is obviously inaccurate. "Where a leading commercial firm fails, and its affairs are placed in tbe hands of solicitors and accountants of high standing, there cannot be the same occasion for guarding against fraud as in the case of small traders. A careful discretion should, therefore, be exercised as to when and how the court or other authority should interfere. For, as its influence will be salutary if directed to those cases in which it is really required, so will it do rather harm than good by hampering and increasing tho cost of tbe proceedings, if applied to cases in which it is unnecessary. Clearly, then, much must depend upon the manner in which the enabling provisions of any Bankruptcy Bill that may be passed are worked by the courts. And with a view to their efficient working I think that the advisability of having at the head of the bankruptcy administration a judge who is fully conversant and experienced in the law and practice of bankruptcy, and who will devote his whole time to hearing bankruptcy cases, cannot be too strongly insisted on. It has been suggested, and the suggestion formed part of the Bill introduced last session by Mr. Chamberlain, that the Board of Trade should be intrusted with certain powers of supervision. But it may be doubted whether such powers would not be more properly intrusted to a judge, and, in certain circumstances, to his registrars acting under bis direction. The Board of Trade must necessarily aot upon the advice of its officers, and these may and probably would have no special knowledge of the principles or practice of bankruptcy. A judge, on tbe other hand, if intrusted with the full powers created by the Bill, would be euabled to bring the whole system into harmonious working, and thus the difficulties arising from divided authority would be overcome. You are most of you doubtless aware that our society last year drew up and forwarded to the Government certain suggestions as to the alterations and amendments which, in their judgment, ought to be made in the bankruptcy law. Prominent amongst those suggestions was one to the effect that, " as in the Probate Division, a judge ought to be appointed to give his whole time to bankruptcy, snd the hearing of all important matters and appeals from tbe registrars and county court judges ; and the Court of Bankruptcy ought to form a division of tbe High Coutt of Justice."
Now the Bill as introduced by the Government into tbe House of Commons, although it to a great extent adopted the suggestions of our society, omitted to give effect to the one I have cited. It provided that matters of bankruptcy should be assigned to the Chancery Division of the Higb Court of Justice, and be disposed of by one of the judges attached to that division, and that tbe Lord Chancellor
should from time to time assign a judge for that purpose, but so that no additional judge should be appointed until the number of each judges, other than the Lord Chancellor and the Ma^r of the .Rolls, should be reduced below four. This provision would simply perpetuate the present unsatisfactory state of things—for bankruptcy matters would only receive, as cow, a portion of the attention of one of the chancery judges, and thus the bulk of cases, or indeed almost the whole of them, with the exception of oonnty court appeals, would be left to the decision of the registrars. Now, far be it from me to suggest that the registrars do not exercise great care and diligence in their conduct of the business, or that tbey do not devote their best endecvours to satisfactorily dispose of it. Bat it should be remembered that they were originally appointed with a view to the discharge of administrative rattier than judioial functions. I venture to think that in a great number of oases in which an appeal is now instituted, the parties would rest satisfied with the decision of a judge. But however this might be, the i>ain to the public in the more efficient and uniform administration of the bankruptcy law would more than compensate for the extra cost.
By far tbe most necessary reform, however, is the repeal of the 125th and 126th sections of the existing Act, which provide for liquidation by arrangement and compositions without imposing any proper check upon the application of them to guard against their being abused. The repeal of these two sections has been recommended, not only by this society, but by a committtee of the House of Commons, by the Bankers' Institute, and by the Chambers of Commerce. To this recommendation, the Bill which was introiuced last session, and will probably be reintroduced next year, proposed to give effect. And an instructive insight into the mischievous character of these two sections is afforded by the comments of Mr. Chamberlain when introducing it. Alter showing that the number of liquidations and compositions bad been steadily increasing until tbey had retched a total in the year 1879 of very nearly 12,000 (or about 93 per cent, of the total number of proceedings under the Act), he proceeded to explain the reasons why these provisions had been so largely resorted to. He pointed out how, unier section 125 of the Act, it was possible for a debtor, who found himself unable or unwilling to pay, to have a meeting of creditors summoned on his behalf at a time and place convenient to himself, and certainly in many eases inconvenient to the majority of the creditors. At this meeting the creditors present, either by themselves or by proxies (creditors in son.e cases in friendly collusion with the bankrupt, in other cases fictitious, in not a few cases fraudulent), might by the requisite majority in number, and three-fourths in value, elect a trustee, agree to a liquidation, dispense with the security which the Act required the trustee to give, get rid of all investigation of tbe previous conduct and affairs of the bankrupt, discharge the debtor, although guilty of fraud or scandalous negligence, and although the assets showed no dividend, and this arrangement might be imposed upon a dissecting minority of bond fide creditors. Under this arrangement there was no publio inquiry whatever, no examination on oatb, and no security tor the protection of the public interests whioh were involved in every insolvency. Under this system the position of a trustee was an enviable one, provided he was not troubled with moral scruples. He was uncontrolled as to the disposition of the estate, and the management of it; he might appoint, and often did appoint, his own committee of inspection, from whom he was bound to take his instructions. The accounts of the trustee bad been in more than one instance audited by persons who could not write their own names. The trustee could make any arrangement for the discharge of the debtor, he could dispose of the funds, he could vote his own remuneration, he oould tax his solicitor's bill, he could audit tbe bills of the other professional persons he employed, he could audit his own accounts, granting himself a release, and retire to the bosom of his family, satisfied that he had complied with all the legal requirements of tbe statute. He might, if he liked, declare a dividend, or he might delay doing so. He might keep the creditors' money in his own hands, and use it for his own purposes; he night appropriate undivided balances and unclaimed dividends; he might assist in the creation of fictitious claims, certain that in such oircumstances dividends could not be claimed ; and in fifty different ways be might rob the creditors to his own advantage. Is it then matter for surprise that reckless or dishonest trading should abound . when such facilities as these are afforded for getting quit of the consequences of it P Or, is it not rather natural that both trustees and debtors should largely avail themselves of provisions which might well have been framed expressly to enable them to benefit themselves at the expense of the creditors? It is to be hoped that the abolition of liquidations by arrangement, the restriction of compositions to a minimum payment of five shillings in the pound, end this subject to the approval of the court, and the adoption of one uniform mode of proceeding—viz., by bankruptcy, in all cases of insolvency, may tend to aim liomto the present state of things. There is one matter, however, in regard to which the provisions of our bankruptcy laws ought to be most stringent, and that is, the granting of a discharge to the bankrupt. Whilst justice and public policy require that the man who, by mere misfortune or accident, becomes unable to meet bis engagements, should be given the opportunity of starting afresh in business, it none the less demands that the reckless or fraudulent trader shall not be able lightly to cast aside the claims of his ert ditors, and free himself from the control of the court. And I feel confident that no more effectual means can be found of checking the effences of overtrading and fraudulent bankruptcy than to enact that the proof of tbeao or similar offences having been committed shall absolutely debar tbe bankrupt from obtaining his discbarge, except in the event of his paying his creditors in fall. If (as is proposed by the Bill) a discretion be given to the court to grant or withhold the discharge in such case*, it is not unlikely to be leniently exercised, and thus the deterrent effeot of the provision would be greatly lessened, or altogether lost
It is satisfactory to note that it is proposed to place a restriction upon the present most mischievous and facile use of proxies. Hitherto, as you are aware, a proxy has constituted the person to whom it has been given tlie general agent and representative of the creditor signing it. The proxy proTided for by the Act of 1869 gives the nominee of the creditor authority to act fcr him "in all natters under the Act, of whatsoever kind, as folly as the creditor himself could act." The course adopted, only too frequently I fear, has been to canvass for, or even to purchase from creditors, a sofficient number of these documents to give the debtor, or hit solicitor, or his trustee, the power of controlling the votes at a meeting, and thus to enable them to retain for themselves the bulk of the estate, whilst tbe creditors have gratefully to accept the few crumbs of dividend wbioh are thrown to them. Under tbe proposed new system, however, smaller scope will be given for suoh scandals. Tbe careless or tbe friendly creditor will not be allowed to wash his handa of tbe matter so readily. A proxy will "not be available except for the purpose of voting at a specified meeting, or an adjournment thereof." Moreover, the appointment na proxy of the solicitor for the bankrupt will be prohibited altogether; and whoever may bold a proxy will not be allowed to use it for the purpose of Toting for the appointment of himself as trustee, unless specially authorized to do so by the terms of tbe proxy itself.
It would, doubtless, be bold to prophesy an entire cessation of the present evils as tbe outcome of the reforms to which I bave referred. A panacea is an impossibility, and cannot be devised. We must rest satisfied with the hope that the many years of consideration which have been devoted to the subject may, ere onr next meeting, have resulted in the introduction of, at all events, a far leas defective system of bankruptcy procedure than at present exists.
Let me, before I conclude, devote a few observations to a subject, which yearly grows more urgent, but to which too little attention has, I think, been paid. I refer to tbe codification of our law. I am aware that many and diverse opinions are entertained both as to the advisability and as to tbe practicability of framing a code. It is objected by Bonn: that any attempt at a concise statement of the whole of the English law would tend to ambiguity rather than clearness; that it would add to, and not diminish, tbe donbts and difficulties of the law, by affording fresh matter for judicial interpretation without enabling us to dispense with the existing accumulation of decided cases and statutory enactmenta ; that it would detract from tbe present malleability or elasticity of the law, by allowing less scope for its adjustment to changing circumstances; and that, at beat, it could not be otherwise than an im
perfect and incomplete statement of legal principles. There is doubtless some truth in these objections. It is necessarily impossible to frame a perfect code which shall in itself contain an exact principle of law to fit every state of oiroumstanoes whioh may arise. It is consequently out of tbe question that a code could be a complete substitute for tbe whole o( the text-books and reported decisions which at present form onr materials for collecting the general prinoiple which is applicable to a particular case. Ii-completeness must be the result even of the greatest possible care in its preparation. But it would surely be possible to codify at any rate some portions of onr law with sufficient completeness to be of immense service. You are aware that steps have already been taken towards embodying the whole of the criminal law in one Act of Parliament in tbe shape of a Criminal Code. When the proposed Bill is passed, we shall have in a compact form a substitute for a vast number of statutes and decisions contained in sons hundreds of volumes, the examination and comparison of which now involves a great amonnt of time and trouble and consequent expense. And if the result of a crimixal code be to dispense with or, at any rate, to minimize this labour, we may, I think, look to a still greater gain from a codification of other branohes ot the law. The object of the criminal law is to deter persons from the commission of crime, and not to confer rights open them. A general and widely-spread knowledge, therefore, of the criminal law is not si useful and important an objeot as the rendering familiar to the public the principles, for instance, of mercantile law. x*or the purpose of onr mercantile law is to inform the public of their rights, and an accessible, concise, and inte iigible statement of the several subjects which it embraces woald enable the mercantile community to understand and appreciate their rights and liabilities towards one another, and to transact their business and frame their conduct towards one another in accordance with what is the law. They would thus feel a far greater amount of security through being competent to judge as to what transactions they could carry out, and, generally, as to their position, 'lake, for txampl->, the case of a German merchant. In the majority of in>t*u.-- i in which he is desirous of ascertaining his legal position in reference to a bill of exchange, he is able easily tod»u by looking at the German Code telating to negotiable instruments. Moreover, by a study of this code he can, with slight difficulty, obtain at least a general knowledge of the branch of the law contained in it. In this country, hawever, so long as our law retains its present cumbrous and unwieldy form, it is almost impossible for any bat lawyers to obtain more than a vague notion of its general principles. These have to be laboriously extracted from a va»t number of statutes and dicided cases, which are themselves not Befrequently difficult, if not impossible, to reconcile on* wi:h another. I do not say that this labour would te al ogethrr saved by a code. That would be to assume the porsibnuy of a statement of the law which should be not only eceoxate but exhaustive. Cases will alwajs arise which require tbe application of some new principle, or, any rate, lite modification of an old one; and in sncb cans the aaalacT of former decisions might be of assistance. But I do think that wore many, if not at all, of the branches of onr law reduced to tbe form of a code containing a couoise and accurate statement of general principles covering tbe majority of probable c»aes, the advantages would be enormous. The administration of justice woald become more certain, ue labours of judges and of lawyers generally would be iaci-itated, and by rendering law more intelligible and aroexib e. a oode would be the means of creating a wider aud mere public interest in the study of it. Stripped to a great extent of its technicalities, and extracted from its present labyrinth of decisions, law would become an interesting and attractive study, witbin the reach of the general body of eaaeated men.
But there is a still greater benefit which might 'airly be expected to accrue. In order to render their work tosiy extent accurate and complete, it would be neeeasary for the framerg of the code to travel over the whole range ot po*»it l« c»ses. In doing this they would have brought to their attention many rases as to whieh no rule or prtoerifle of lav has been laid down. The conflict ol authority and the Ujconsistencies in various decisions would also be made evident. Both these defects would be remedied in draain£ i p the code, pilules would have to be inserted to cover tut cases as yet unprovided for, and the conflicting decisions ■would necessarily b* reconciled by the enunciation of ageneral proposition covering the class of cases to which they belonged. In this way the codification of the law would lead to its becoming more perfect and more consistent, as well as more concise and intelligible.
I do not lose sight of the great difficulty of framing a good and useful code. The enormous mass of materials out of which it would have to be compiled is sufficient evidence of the labour involved. The process of reducing this mass of materials to an orderly and comprehensive shape, by a concise statament of the general principles cont<ined in it, must of course be a gradual one. It would not suffice simply to embody the various separate decisions in an Act of Parliament, and to call this a code; tliougb, if a digest were thus made of each of the several branches of the law, it would no d< ubt be a most useful means of exposing conflicts and anomalies, and thus paving the way for a more condensed summary. But whatever be the form of the work, whether digest or code, it would be necessary to deal exhaustively with the whole of the existing law reports and statute book', and, by discarding that portion which is no longer of value, and condensing what remained, to extract and retain the essence of them. The present condition of these materials is thus described by the commissioners, who, in 1867, reported upon the utility of digesting and codifying the law: — "The judicial decisions and dicta are dispersed through upwards of 1,300 volumes, comprising, as we estimate, about 100,000 cases, exclusive of about 150 volumes of Irish Reports, which deal to a great extent with law common to England and Ireland. A large proportion of these cases are of no real value as sources or expositions of law at the present day. Many of them are obsolete; many of them have been made useless by subsequent statutes, by amendment of the law, by repeal of the statutes on which the cases were decided, or otherwise. Some have been reversed on appeal, or overruled in principle; some are inconsistent with or contradictory to others; many are limited to particular facts or states of circumstances furnishing no general rule, and many do no more than put a meaning on mere singularities of expression or particular written instruments, or exhibit the application in particular instances of established rules of construction. A considerable number of cases are reported many times over in different publications, and there often exist, especially in earlier times, partial reports of the same case in different stages, involving mnch repetition. But all this matter remains, incumbering the looks of reports. The cases are not arranged on any system, and their number receives large yearly accessions, also necessarily destitute of order; so that the volumes constitute what can hardly be described, but may be denominated, a great ohaoa of judicial legislation. At present the practitioner, in order to form an opinion on any point of law not of ordinary occurrence, is obliged to search out what rules of the common law, what statutes, and what judicial decisions bear upon the Bubject, and to endeavour to ascertain their combined effect. If, as frequently happens, the cases are nnmerons, this process is long and difficult. Yet it must be performed by each practitioner for himself when the question arises; and in some cases, after an interval of time, it may have to be repeated by the same person."
During the period which has elapsed since this report of the Commission in 1867, the bulk of th? law reports has been still further augmented by the alditionof somehondred volumes, the whole presenting a most formidable array of confusion, to reduce which to order would necessarily entail a large expenditure of time and money. But the fact, to which I have just referred, of the rapid growth of the materials to be dealt with, is proof that the longer the task is delayed the greater must this expenditure be. A beginning could at all events be made with those legal subjects which are more or less compact and complete in themselves; such, fcr example, as the law of evidence, tho In w of partnership,aud the law of bills of exchange, each of which has already been reduced to and published in the form of a code by private writers. By a statutory enunciation of the liw relatisg to these subjects the benefits derivable from codification would be made apparent, and the way would be paved for a gradual extension of the process to the remaining branches of our law.
These remarks have been to some extent suggested by a measure introduced at the end of last session by Sir John Lubbock, who is well known to most of ns, not only as a
banker, but also as a man most eminent in science, and recently president of the British Association, for the codification of the laws of bills of exchange. This Bill was only read pro formd for the purpose of consideration during the recess, and may be expected to appear again next year.
In codification, France, Germany, Sweden, Switzerland, and possibly other countries, have been far ahead of ns; and a more ambitious attempt has been made by the Association for the Reform and Codification of the Laws of Nations (whose meetings in London I had the honour of attending as one of the delegates of the Incorporated Law Society a few years ago) to frame an international code on this subject. Sir J. Lubbock's Bill was considered with approval at their conference held at Cologne this autumn, though, as being confined in its effect to this country, it was deemed not to go far enough for their purposes.
For the result of these various efforts in amending and codifying our bankrupt and commercial laws, during the next or some future session, I must refer you to the next or some future president.
Mr. F. K. MonTOtf (London) moved a vote of thanks to the president for the excellent paper they had heard. Coming from the head of one of the principal firms in the kingdom they had looked for a paper of high interest, and he hoped that such an address from the president of a representative society, such as the Law Society, would go far to convince the public that solicitors were anxious that the law should be reformed and rendered easy and expeditious. He expressed his pleasure that the paper had so strongly attacked the present bankruptcy law.
The motion was seconded by Mr. S. Pollard (London), and unanimously adopted, and
The President thanked the meeting for the way in which they had received his address.
NEXT TEAK'S MEETING.
The President said it would now be necessary to consider as to the place of meeting next year, and members were at liberty to make any suggestions on the subject.
Mr. Laverack (President of the Hall Incorporated Law Society) said that his society had deputed him to give the society a cordial welcome to Hull. He moved that the meeting next year should take place there.
The motion was seconded by Mr. Lows (Vice-President of the Hull Society), and was carried item. con.
Mr. G. R. Dodd (London) complained that it was quite impossible to consider the numerous subjects brought before them in the short space of nine hours, and moved that the time in future be extended to three days instead of two as was at preient the case.
The motion was not seconded.
Mr. Lewis (Wrexham) observed that it had at one time been laid down as a rule that the expenses of the banquets usually given at tiese meetings should be borne by those who participated in them. If this were not the case, it was felt that, at those towns at which there were few solicitors, it would be unjust to allow the expense to fall upon the society there. Birmingham had been the first to break through the rule which had been laid down, and had been followed in this respeot by other large towns. He moved a resolution to toe effect that the members attending these banquets should be required tj pay their own expenses.
Mr. J. Leake (Mayor of Hull) trusted that the proposition would not be applied to the Hull Law Society, of the oounoil of which he was a member. He was sure the members of that sooiety wonld very strongly object to any such proposition.
The motion not being seconded, the subjeot dropped.
Mr. Bernard Wake (Sheffield) read a paper on " Bank, rnptcy aod the Broad Principles to regulate the Relations of Debtor and Creditor," in which he laid down and enforced the propositions that —
1. Bankruptcy is a malfeasance—must be catalogued as a orime—dealt with by a comt—not controlled by creditors, the main injury being to the Stite, or whole community, and not merely to individual creditors.
2. Penalties, or punishment, more or less severe, must be a necessary consequence of bankruptcy—in particular debts must remain undischarged.
3. Bunkruptoy law must aim chiefly at repression of bank