Page images

fer of land by a mere change of name in a register. With that, however, we are not at present concerned. Compared with the conveyance to uses, just noticed, the lease of a term of years appears in a favourable light in point of directness. The lease is made directly to the intended tenant without the introduction of uses. Yet there is no reason naturally for any distinction between the two instruments. The difference has been produced by an accident, that a term of years is deemed personalty, and, therefore not within the Statute of Uses. For the other kinds of personalty various modes of alienation are available, goods and chattels being assignable either by delivery or by deed ; stock by transfer in the books of the Bank of England, or by a delivery of a stock certificate, and shares in a similar manner. The transfer of land differs, therefore, from the transfer of other kinds of property in being much less simple and more costly. The nature of the case is, perhaps, responsible for this to some extent, but from what has been said it may reasonably be assumed that the law relating to the transfer of land might be very much simplified. Testamentary disposition, which comes next in order, does not seem to call for any observations pertinent to the present purpose.

The other class of titles consists of modes of acquisition otherwise than by the intentional alienation of the owner, and includes, therefore, intestate succession, adverse possession, prescription, occupancy, accession, forfeiture, and bankruptcy. The law regarding the first of these, intestate succession, is, according to almost universal agreement, in an unsatisfactory condition. That the whole of an intestate's land should descend to his eldest son alone, while his other property is equally divided amongst his widow and children or next of kin, is certainly anomalous. The desirability of uniformity in the devolution of the property of an intestate has been sufficiently insisted on by another writer in the current volume of this magazine. The expediency of such uniformity will, therefore, be here assumed. The point of peculiar interest for the present purpose is that by assimi

lating the succession to land and to goods and chattels, the only generic difference between the opposed classes of realty and personalty, would be gone. In no other respect can the various subjects of real property be associated together and opposed to the various subjects of personal property than in the descent of the former to an heir, the devolution of the latter to an administrator for the benefit of the next of kin. Were the distinction in question gone there would be no common mark to distinguish the subjects of the one class from the subjects of the other. The establishment of a uniform mode of succession may be advocated, therefore, as a means towards getting rid of this distinction between realty and personalty as well as on the ground of its moral expediency. The confusion and complexity which this division of property into real and personal has occasioned throughout the whole system of property have been already pointed out. The advantage which the system would gain from the extirpation of the distinction would be enormous. .

With regard also to acquisition by lapse of time might the law be much simplified. It is at present divided into two distinct departments, regulated by distinct Acts of Parliament and founded on different principles. The Statutes of Limitation provide for the acquisition of rights of property in one way, the Prescription Act for the establishment of servitudes in another. Under the former, a right is not acquired directly and positively, but indirectly by means of a prohibition on the owner of land possessed adversely to bring an action against the possessor after the lapse of a prescribed period. The Prescription Act, on the other hand, establishes a right of servitude directly. It enacts that after user for a specified period a right of servitude shall be acquired. Practically of course a right of property is as firmly established by the lapse of the period after which the possessor cannot be ejected, as is the right of servitude after the period required for prescription, but it would be certainly more reasonable and satisfactory to establish it affirmatively, as by prescription, than by implicating it with procedure, and


making it merely a means of defence. There seems reason why the principles applicable to the establishment of servitudes might not be applied also to the acquisition of a right of property, and a uniform system created for both. As to the periods required for the acquisition of the respective rights in question, they are very various, and it may in passing be suggested that a little more uniformity might be desirable in this respect also. Another point to be noted is the very unsatisfactory way in which the law on this subject has been brought into its present condition, and the consequent difficulty which has been frequently experienced in ascertaining what the law really is. This has arisen partly from the vagueness of the Acts themselves, and partly from exurberance of judicial interpretation thereon. A striking illustration of this may be found in Shelford's Real Property Statutes, where to the Prescription Act and Statutes of Limitation alone are devoted more than 300 pages of explanation printed in very small type, whereas the Acts themselves take up a few pages only. . The whole subject wants a thorough remoulding.

This brief and incomplete examination of some of the principal parts of the law relating to title concludes the present task. An attempt has been made in this and in the two former articles devoted to a consideration of the terminology and arrangement of the English Law of Property, to point out the objections to which some of the leading terms of this department of the law appear to be open, and some of the defects which in point of arrangement seem to disfigure the system. Possibly there has been more of condemnation of existing terms and distinctions than suggestions for improvement, and the few suggestions which have been made may perhaps appear crude and impracticable. But the object of the writer will have been accomplished if he has succeeded in directing serious attention to the subjects discussed, and of contributing in any degree, however little, to the ventilation which they seem to require.

W. W. A. T.



IN N the year 1871 the present Lord Chancellor introduced

in the House of Lords a Bill for regulating the procedure before Justices of the Peace. That Bill being comprehensive and important, but technical in its nature, received little attention from the general public, and did not get beyond Committee in the House of Lords. Now that the alleged increase of crimes of violence and brutality has been brought prominently forward, and augmented powers for the punishment of offenders is demanded on behalf of the magistrates, some further alterations and amendments of the law would appear imminent, and the consideration of some of the principal points of Lord Cairns' Bill appears to us to be specially worthy of attention. The object of the Bill was to regulate the procedure and practice of the more than one thousand magistrates and Petty Sessions Courts in England, and to consolidate into one Act the divers laws relating thereto. Since Jervis's Acts, although the duties of the magistrates have been enormously added to by the numerous, and often conflicting, enactments affecting not only the morals but the education and health of the people, while the courts of summary jurisdiction have attached to themselves an increased appreciation by the poor, scarcely anything has been done to lessen unnecessary labour on the part of the magistrates and their clerks (for which unnecessary labour, be it remembered, the public pay), while the more than doubtful system of paying clerks by fees still flourishes, and antiquated formalities occupy the place of useful improvements.

The provisions of the Bill may be stated shortly :

1. That the summary jurisdiction of Justices under the Criminal Justice and Juvenile Offenders' Acts be extended to cases where the value of the property does not exceed five pounds, including also cases of larceny or embezzlement by

clerks or servants, false pretences, and receiving stolen property, whether the offender plead guilty or not. The principal objections appear to us on this proposition to be, that the law of false pretences and receiving is so full of doubt and difficulty that its administration should still be left to a jury, assisted by the direction of a competent judge, and, therefore, that summary jurisdiction in such cases should only be permitted on a plea of guilty. It would no doubt be desirable to give magistrates power to deal with petty cases of fraud, but practically the offenders would generally acknowledge their offence. Of course magistrates, even if this provision were adopted, would, in cases were the value is no test of the evil disposition of the offender, still commit for trial.

2. That justices should be permitted a discretion, in deal. ing summarily with cases under the above Acts, even after a former conviction. Let us illustrate, by a frequent case, how such a provision would work advantageously. A sailor meets with some girls; they rob him. The case is clear; they are old thieves, and must therefore, now, be committed for trial. He is bound over to prosecute. On the day of trial he is a thousand miles away, and, there being no prosecutor, the girls are discharged. Time after time the same girls are charged in some districts of the metropolis, invariably with this result. An occasional memorandum from the Home Secretary would remind magistrates not to deal with cases of hardened offenders, unless otherwise they would escape with impunity.

3. That prisoners should be allowed to plead to charges before depositions are taken. This would save valuable time wasted in taking formal depositions, which now only add to the waste paper in the office of the Clerk of the Peace.

4. That the service of summonses may be proved by affidavit, that they may be served at the last known place of business, and that witness summonses be issued by the clerks to justices, without previous application upon oath.

« PreviousContinue »