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LONDON, JANUARY 21, 1882.
bar, that upon the expiration of an “argument” of about CURRENT TOPICS.
forty-five minutes' duration in his court, a paper was handed by a bystander to the counsel who had just sat down, containing these words—“You were interrupted ninety-four times by the judge,
and forty-six times by your opponentProbably this THE LORD CHANCELLOR heard on Wednesday an opposed exaggeration, but it represented the too general course of proapplication for transfer of a cause in the Chancery Division. We
ceedings. Sir R. Malins was a learned lawyer, and many of his are glad to learn that the statements which have appeared as to judgments contain excellent expositions of different branches of his lordship's good health are fully justified.
real property law. His judgment in Oakes' case (L. R. 3 Eq. 576) was a good example of his capacity for dealing with com
plicated and keenly-fought cases, and it will be remembered that WE BELIEVE it is intended to introduce into the Bankruptcy in Lyons v. Fishmongers' Company (25 W. R. 165) the House Bill of the forthcoming session a provision for meeting the of Lords upheld his decision, although it had been reversed by difficulties which have arisen in the working of section 10 of the the Lords Justices. Judicature Act, 1875, which applies to the administration of an insolvent estate, and the winding up of an insolvent company, the rules which may be in force for the time being under the law of WE PRINT ELSEWHERE a letter from a correspondent, who is bankruptcy with respect to the estates of persons adjudged bank- a witness of high authority upon the question, confirming our rupt.
impression that the feeling among the profession generally is decidedly adverse to permitting the provisions of section 18 of
the Conveyancing Act to apply to mortgages. We more than WE UNDERSTAND that the question of the charge for writing in doubt whether the pleading of our distinguished correspondent the Chancery Registrar's office, which was raised by Mr. Fowler will avail to remove this adverse feeling. Retaining our opinion in the House of Commons last session, has been taken up by the that the section ought to be excluded in the interests of the Treasury, and now forms the subject of discussion. The profession mortgagee, and that therefore (the mortgagee being the stronger is concerned in the matter, because if the charge for transcribing party to the debate) it is likely to be excluded in most, if not all, drafts and orders should be disallowed, and this work has to be cases, we must impress upon the notice of our readers the condone by the assistant clerks to the registrars, it will be impossible ditions under which it can be excluded. The words of section 13 that the business of the office can be transacted without grievous are:-“ This section applies only if, and as far as, a contrary delay. It is well known that the assistant clerks are at present intention is expressed by the mortgagor and mortgagee in fully occupied all day in taking in and giving out papers, in the mortgage deed, or otherwise in writing.” The words in noting these circumstances in their books, and in filling up forms italics make it advisable (notwithstanding some more general of simple orders.
expressions which occur later on) that the mortgagee should execute the mortgage deed when he desires to exclude the opera
tion of section 18. And here we will take occasion to remark MR. JUSTICE NORTH announced at Reading last week that the something which is often forgotten, and which seems not to have practice followed by some counsel in defending prisoners in been fully kept in mind by our distinguished correspondent when stating facts in their behalf without proving them by evidence he wrote the letter to which we have referred. People seem to " had lately been under the consideration of the judges, and they forget that the safety which a mortgagee is entitled to demand is had agreed that the practice ought not to be encouraged, and that not merely the certainty that the courts will, if necessary, decide counsel should not be allowed to make statements which could not in his favour; it is the certainty that his rights are too clear ever be proved by competent witnesses.” The present time, when the to be questioned or brought into litigation. Certainty of the public mind has been strongly impressed with the unjust convic- latter sort is what a mortgagee expects his solicitor to obtain for tion in the Staffordshire case, is not a very happy occasion for the him, and our readers do not need to be told that it is quite promulgation of a rule tending to shut out the prisoner's version useless to plead section 66 of the Act in the private court of an of the facts. The result of the rule will be to give a prisoner the enraged client. But this kind of certainty can hardly be attained choice of two alternatives. Either he must lose the benefit of by relying upon an Act which is a never-failing storehouse of counsel's services and defend himself, in which case he cannot moots. practically be prevented from laying his story before the jury; or he must lose the benefit of bringing his version of the facts before
“ WHY HAS the jury, and obtain the advantage of counsel. This does not
MY DECISION in Jones v. Smith not been seem to be a very reasonable state of things.
reported ?” a certain learned judge of the Court of Chancery used to ask, focussing his eye-glass sternly on the delinquent
reporter. Perhaps the remark may to some extent explain WE BELIEVE that no member of the profession will hear without curious view is given in probably the most complete piece of
the extraordinary prevalence of law reporting, of which a regret of the death of Sir RICHARD Malins. In spite of his legal bibliography which has yet appeared-Messrs. Sweet and judicial peculiarities he was very popular, because he was always Nicholson's Catalogue of Modern Law Books. It would really indefatigable in the performance of his duty, and ever anxious for the appear that wherever there are English-speaking judges there are furtherance of justice, and (except when one of the periodical law reports prepared and published somehow or other. If storms perturbed his court) he was urbane and courteous in a high
Greenland's icy mountains" do not furnish any reports, “ India's degree. If he did not observe Lord Bacon's injunction to Mr. coral strand” hảs provided no fewer than fifty-six series of reJustice Hutton, to “ let his speech be with gravity, as one of the ports, ranging from 1774 to the present time. Many of these sages of the law, and not be talkative, nor with impertinent flying extend over a long period. The “ Select Reports” of the Sudder out,” he was not without judicial comrades in this delinquency, Courts, for instance, commenced in 1798 and continued till 1848 ; although we must confess that in point of degree he was probably and the Sudder Nizamut Adawlut Reports began in 1805 and unrivalled. A story was current some years ago at the equity | extended to 1850. Australia contributes thirteen series of reports and New Zealand six. The Cape of Good Hope, Ceylon, Jamaica, and Mauritius have their reports; and even the Sandwich Islands AUTHORITY TO PAY PURCHASE-MONEY. boast of three series of law reports, comprised in three volumes, The last volume is stated to be " by the justices," which reminds " A PURCHASER," said Vice-Chancellor Kindersley in Viney v. us of the pathetic narrative we once heard from a colonial judge of Chaplin (6 W. R. 302, 4 Drew. 237), “has a right to pay his the labour he and his colleagues underwent in reporting their own money to the vendor personally ; it was the simple natural decisions, which were issued under the name of a member of their right, and required no case or authority to support it. Even in bar, who certainly deserved the title which a learned judge of the a payment under a power of attorney or written authority there Court of Appeal is fond of bestowing on reporters in general— was a risk. If the vendor died, and his executors found no “the hypothetically learned reporter.” The name of the account of the money, they might bring an action for it, and the American reports is, of course, legion. The list of them covers purchaser would then have to prove his authority to pay to the about eighteen pages of the catalogue, and increases the wonder attorney,
A creditor had no right to insist that the we have always felt as to how buyers are found for such a multi- money should be paid to his attorney or to anyone else.” In tude of volumes.
Ex parte Swinbanks, In re Shanks (27 W. R. 898, L. R. 11 Ch.
D. 525), Lord Justice Brett characterized this as "a most THE PROMPTITUDE of the Home Office in releasing JOHNSON he said, "if it had been decided otherwise. That decision is
wholesome decision.” “ It would have been most dangerous, and Clowes is much to be commended, but it is plain that the binding upon us, and was, in my opinion, a most righteous question of granting them some pecuniary compensation out of the decision." And in the latter case the court held that the mere public funds will also have to be considered. The cases of BARBER, Habron, and Galley show that there is sufficient pre- by his client, does not authorize him to receive the mortgage
fact that a solicitor is in possession of a mortgage deed executed cedent for such a grant, which will have to appear on the votes the sentence will not be wholly removed. A pardon is a mere act deed by showing that he paid the money to the solicitor unless as a special item. But even if compensation is granted, the results of money for the client. If the client does not receive the money,
the mortgagee cannot maintain the validity of the mortgage of grace, which leaves the judgment unreversed. There should be he can show that the solicitor was expressly authorized by the client some proceeding whereby this record of guilt is done away with. It
to receive it. is stated (see Wharton's Lexicon, tit. Pardon) that Sir FREDERICK POLLOCK when Attorney-General, proposed that when the Crown
As most practitioners are aware, this rule has been pardons anyone adjudged guilty, on the ground that the evidence, altered by section 56 of the Conveyancing Act, which rightly viewed, does not warrant the judgment, the convict should provides, as to cases where consideration is to be paid or assign, and the Attorney-General should confess, error on the record, given after the commencement of the Act, that “where a whereby the judgment would be reversed, and there would remain solicitor produces a deed, having in the body thereof or indorsed no record of guilt. Some formal evidence of the pardon seems
thereon a receipt for consideration money or other consideration, necessary for the purpose of reinstating the pardoned convict in the deed being executed, or the indorsed receipt being signed, by the enjoyment of the franchises of which his conviction deprives the person entitled to give a receipt for that consideration, the him, for by 33 & 34 Vict. c. 23, s. 2, the convicted felon shall deed shall be sufficient authority to the person liable to pay or become, and until he shall have suffered the punishment to which give the same for his paying or giving the same to the solicitor, he had been sentenced or shall receive a free pardon from her without the solicitor producing any separate or other direction or Majesty, shall continue, thenceforth incapable of holding any mili- authority in that behalf from the person who executed or signed tary or naval office, or any civil office under the Crown, or other
the deed or receipt.” public employment or any ecclesiastical benefice, or of being elected An authority to receive purchase-money is, therefore, to be or sitting or voting, as a member of either House of Parliament, implied on certain conditions being fulfilled. The first of these or of exercising any right of suffrage or other parliamentary or conditions is that the person producing the deed must be a solicitor. municipal franchise whatever within England, Wales, or Ireland.” This requirement is reasonable and proper, but it must be rememThe same statute provides for the complete determination, unless bered that it renders it incumbent on the purchaser's solicitor the convict shall receive a free pardon within two months after who comes to complete to see that the person producing the deed conviction, or before the filling up of the office, of all emoluments is not an unadmitted managing clerk or cashier, persons who, we whatever derived from any public office; but not a word believe, in certain large offices, have been in the habit of comis said as to compensation in case of pardon after the filling up of pleting purchases. The section does not require the person the office; for such compensation is entirely outside the law, producing the deed to be the solicitor of the vendor; payment to which refuses to admit the possibility of a mistaken conviction. any, solicitor producing the executed deed containing, or having Even the case of an innocent convict being condemned to pay the upon it, a proper receipt, will, according to the language of the costs of the prosecution is left unprovided for. As the law now section, suffice. The reason of this is obvious. If the section stands, such costs are wholly irrecoverable, unless there be a had enacted that the solicitor producing the deed must be the private prosecutor, and the prosecution be malicious.
solicitor of the vendor, it would have been tantamount to rendering the provision nugatory, for, of course, it would be necessary
to have proof at the time of payment that the solicitor was then THE FOLLOWING is a list of the new Queen's Counsel, with the solicitor of the vendor, and so a document similar to an their respective years of call to the bar. Four members of the authority would still be necessary. Chancery bar--viz., Mr. F. W. E. Everitt, 1855 ; Mr. WILLIAM A matter more likely to be overlooked is the mode of payment BARBER, 1862 ; Mr. H. H. Cozens-HARDY, 1862; and Mr. H. A. which must apparently be adopted in order to obtain the benefit GIFFARD, 1865. One member of the Parliamentary bar-viz., of the new enactment. The provision is that “where a solicitor Mr. PEMBROKE S. STEPHENS, 1862. Two members of the produces a deed, having a receipt for consideration money, the deed Northern Circuit-viz., Mr. P. A. MYBURGH, 1862; and Mr. C. shall be sufficient authority to the person liable to pay the same, CROMPTON, 1864. Two members of the South-Eastern Circuit-- for his paying the same [i.e., the consideration money] to the viz., Mr. J. A. McLEOD, 1863 ; and Mr. R. B. FINLAY, 1867. solicitor." In other words, the production of the deed is to be an One member of the Western Circuit-viz., Mr. J. F. Norris, authority for the payment of money. It will not be safe to assume, 1865. And one member of the South Wales Circuit--yiz , Mr. until the point has been decided, that a banker's draft or W. BOWEN ROWLANDS, 1871.
cheque will be considered as “money” within the section. And, indeed, it can hardly be supposed that the Legislature intended to confer on the purchaser authority to pay in any kind of draft or
cheque the vendor's solicitor may think fit to accept. It would Messrs. William Clowes & Sons (Limited), will shortly publish a work by seem that, for the present at all events, it will be prudent in all Mr. Serjeant Pulling, entitled, “ The Order of the Coif,” embracing the bistory of the old order of judges and serjeants-at-law, and the very wide range of cases where the authority conferred by section 56 is relied on, interesting matter with which the subject is identified. It will have illnistrative that payment of the purchase-money should be made in bankengravings and woodcuts.
may pay thee no part of the above-named until the 9th Pakhons at the time EGYPTIAN CONVEYANCING.
and day herein appointed. I may not say to thee, 'I have already deposited
wheat with thee,' or 'I have made thee a payment on account of thy wheat.' The Times has recently published abridged translations of certain There is no redemption (of the debt] except according to tbis dood, the legal legal documents, which, according to our contemporary's view, consequences of which rest upon me and upon my children. The whole of my throw quite a flood of light on the state of Egyptian society pledged to thee as security for thy nine aureus ; and if I fail to act conformably during the five centuries immediately preceding the Christian to this writing, the whole penalty will be due, and I must cede to thee without æra (see two articles in the Times, published on December 24, opposition or delay all that which is herein pledged.”. 1881, and January 9, 1882). As no lawyer can read these docu
** 2. (Date, the 15th year of Euergetes I.) Thou hast lent to me (names ments without great interest, and as, in our opinion, no lawyer money from thy band. The sum is complete, leaving no balance outstanding.
omitted) five argentei, making one outen of silver. I have received this can read them carefully without coming to grave doubts as to the My heart is satisfied. At the time thou hast fixed for thy five argenteus correctness of the conclusions which the writer in the Times very which thou hast lent, I will repay them. I have thirty days of credit before confidently draws from them, we hope to be pardoned for going a the time for repayment. I will give thee, less the interest, thy five argenteus, little out of the beaten track of an English legal paper, both by
outen, the day after the 30th day above - named, those of our readers who have not yet seen the articles in question, provides for no other redemption of the debt.
not counting costs or interest, and that without delay. This boad
The above legal writing and also by those who have read them, but who, in the press of is in thy hand, for thy five argenteus, and the costs and interest therebusiness, may have taken for granted the correctness of the con- unto accruing. It rests upon me and my children. All the goods I possess, clusions drawn from the documents in question.
or may in future possess, are mortgaged to thee in security for thy argenteus, To summarize very briefly the documents, from which a few against me any means of coercion in respect of that which is here written, and
and the costs and interest thereunto accruing. Thy servants may employ only have been selected for translation by the writer in the Times, that without opposition on my part.” we may say that they consist of papyri written in the Demotic or later handwriting of the Egyptians, and covering a period of
Now, from these and other documents of a like kind, one of them about 500 years, beginning with the reign of Darius I. and end being a mortgage “ whereby, for the miserable consideration of ing about the time of the Roman Conquest. They comprise deeds fifty sekels (i.e., about £1 15s.), a father signed away in pledge, of sale, transfer, gift, partnership, and endowment, leases of not only the inheritance, but the personal liberty of his children, houses and lands, bonds, mortgages, receipts for taxes and other the writer in the Times comes to the conclusion that "repayment payments, marriage contracts, marriage settlements, title deeds, was rigidly enforced on a fixed day, before which the creditor inventories, &c. The world is indebted for its newly acquired would accept no instalments, and after which, though it were a knowledge of these documents chiefly to M. Revillout, who, delay of only twenty-four hours, the unhappy debtor became during the last few years, has examined the chief European
liable to a fine equivalent to his utter ruin.” It needs, however, collections of Demotic papyri and analysed and translated into very little consideration to see that this conclusion is very French some thousands of them. The English versions given in hazardous. Suppose, for instance, that a couple of thousand years the Times are taken from these French translations; and we
hence a few English mortgages and bills of sale should be un. must assume that the few specimens given to us are fair samples earthed by a people who knew next to nothing of the manners and of the documents at large. At any rate, they are offered as
customs of our country, what a picture of oppressive dealing the forming the grounds of the conclusions arrived at; and though
documents would give them Take even a mortgage in the form these conclusions are, in words, made to extend to the whole of given in the new Act—an absolute conveyance with a proviso for the Egyptian society of the time, it is only fair to add that the redemption on full payment at a fixed time ; and suppose that reader is informed that the legal documents nearly all come from along with it, as might very well happen, a deed were found a single source, and that they invariably concern the professional showing the value of the mortgaged property to be twice as great and private affairs of several generations of a class of Theban as the mortgage debt, what a picture of hardness and oppression Choachytes, a subordinate class of custodian priests who were at- this would give the future student. And what a picture of extached to the Theban Necropolis, and who appear to have been in tortion, rapine, and violence a stringent bill of sale of one of our the habit of adding to their priestly functions the mundane occupa- money-lenders would give him if he did what the Times writer has tion of money-lenders. It is evident, therefore, at starting that done with respect to these Egyptian documents-namely, assume it will be necessary to keep constantly in view this limitation of all the clauses to be habitually carried out in their literal meaning what may be called the area of the papyri.
and to their very fullest extent. Without inventing an Egyptian The legal documents are divided into two classes--namely, court of equity stepping in with relief against the rigorous transactions relating to the living and transactions relating to the apparent meaning of the written document, we may yet use the dead. Of the former, specimens are given to us of mortgages or
analogy of our own system of law as calculated to teach the bills of sale, and of marriage contracts or settlements. We give students of these old papyri some little caution in the use of their here two mortgages which cannot fail to interest our readers,
materials. fresh as they all are from a perusal of the statutory forms in Coming now to the marriage settlements, it seems to us that in the new Conveyancing Act. It must not, however, be assumed the case of these documents there is still more reason to doubt that the originals are as brief and concise as the following the conclusions of the writer of the Times than in the case of transcripts of them. They have been abbreviated in the trans- the mortgages. The writer has again followed out the words of lation, and “much that is purely formal" has been omitted. the document to their fullest extent, and in addition has If we may judge from “the receipt clause,” which we can hardly apparently put a wrong construction on those words. As to the imagine to have suffered much abbreviation or omission, the first crror, he gives an illustration which, if his account of it abbreviations in the rest of the documents must be very con- were correct, ought to have warned him that it is not always safe siderable. No prototype of Lord Cairns appears to have cut to deduce the actual practice from the most solemn covenant or down the tautologies of our Egyptian predecessors, who seem to be promise. “When," he says, “in conformity with one of the still in that stage of conveyancing through which it appears to pleasant fictions of our marriage service, the Benedict of the be necessary that all legal drafting should pass—the stage in occasion undertakes to endow with all his worldly goods the fair which, in order to avoid all doubt and question, the lawyer object of his choice, we know that nothing is in reality further ** slays his dead three times, and nine times drags him round the from his intention, and we take the profession for no more than city.” But let our readers judge for themselves as to the style of it is worth. But the much-married Egyptian not only undertook the draftsmanship :
but practically performed what the British bridegroom only promises.
Witness the following marriage contracts, &c. "1. (Date, the fifth year of Cleopatra-Circe and second year of Ptolemy. Alexander, her son). The receiver of taxes upon stuffs, Thoth, son of Most, if not all, of our readers are aware that the meaning of the Amenhotep, whose mother is Tanoum, to the Pastophorus of Amen-Api of endowment clause in the marriage service is merely an underthe Necropolis of Djem, Neckhtmonth, son of Horus, whose mother is Chachperi
, taking that on the death of the husband the wife shall have saith:-For the wheat thou hast lent to me, thou hast to reclaim from me dower or thirds out of his worldly goods—i.e., his personal estate. nine aureus, interest included. I engage to pay thee thy nine aureus above. The common law gave the widow dower out of the land, but not named in pure unground wheat (value of the said money) paid back, Carried, and delivered into the hands of thy servants in thy house at Djem, out of the personalty ; and the Church, thinking it right that she without cost or outlay, on the 30th day of the month Pakhong. And i should also have thirds out of the chattels, was in the habit of
exacting, as one of the conditions of performing the marriage were not made use of by, these framers of marriage settlements. service, a solemn promise to this effect; and in the exercise of her The object at which they so carefully aimed was plainly the jurisdiction over the personalty of deceased persons, she took care protection of the wife, and not at all the subjugation of the that the promise should be fulfilled. At the present day, no husband. In most cases the rights of the wife seem to have doubt, the clause in the marriage service has no operative effect; been carved out of the husband's property; in other, but but this is only because the views of the Church have been apparently exceptional, cases, the whole of his property was adopted by the State. We have mentioned this only to show that settled, with such obligations, however, as above mentioned. But if the view evidently taken by the writer in the Times of this all this seems to show us that, in the absence of these specific public and apparently most solemn promise had been cor- contracts, the wife would have taken nothing, and would not rect-namely, that it was always a empty form, even have had the satisfaction of knowing that her son would the instance ought to have warned him not to rely be her husband's heir. So that, in fact, it would be as with absolute confidence mere writings as showing the unsafe to deduce, from the comparatively few marriage settlepractice of ancient peoples. But leaving this minor point, and ments which have been preserved and translated, the conclulooking at the documents which the writer in question treats as sion that, in the Egypt of the period in question,“ the woman owns proving that, on the full establishment of an Egyptian marriage, and rules all, the man is an helpless dependent, the pensioner of which took place after a year's novitiate or preliminary cohabita- his wife,” as it would be hereafter to deduce from a handful of tion," the husband became domestically disfranchised; house and English marriage settlements some such conclusion as this : that land and securities were the wife's to dispose of at her sole will on his marriage, every Englishman made over all his property to a and pleasure,” it appears to us that the documents given, not couple of persons, who were frequently relatives of the wife; that only do not prove anything of the kind, but actually tend to show it was the duty of these persons to give the wife all the produce that at any rate the general custom of the country was of quite an of the husband's property, taking particular care that she used it opposite character. Our space unfortunately does not admit of only for herself, apart from all participation by the husband; that our giving the translations of the marriage contracts, but the fol these new owners could lease or sell or exchange the property as lowing abstract of the general contents of the documents of this they liked, or at all events with a mere formal consent on the part kind which is given in the Times appears to be fairly correct and of the evidently down-trodden, if not actually starved, husband ; is sufficient for our purpose :—“ These and other similar contracts that even after the death of the wife the rights of the husband did when analyzed will be found to consist of eight clauses :-(1) The not revive in his own property eren for his life, but that during all " acceptance of the woman by the man-he accepts her for his the rest of his life he was under the tutelage of the persons to whom wife ; (2) the nuptial gift presented to the woman by the man ; he had made it over; that, to add, as it were, insult to injury, he (3) the promise of an annual allowance for dress, particular stress was made to covenant on his marriage that he was entitled to strip being laid on the first year's payment; (4) a declaration that the himself of his property, &c., &c. Probably the conclusions of eldest son of both shall inherit all the husband's property; (5) the Times' writer as to the general state of Egyptian husbands and a formal promise on the part of the man to hereafter establish'the wives are as erroneous as the above imaginary conclusions would woman as his wife ; (6) an undertaking on the part of the man be as to the state of married Englishmen in the nineteenth to pay certain damages in the event of his taking another wife ; century. But, for our present purpose, it is not necessary to go so (7) a list of the woman's goods which she brings with her; (8) far as this. We only wish to show that, to a person conversant a guarantee in the form of a mortgage upon all his property given with actual legal affairs, it must appear most unsafe and unsound to by the man to the woman.” We may add that as to the last draw the conclusions drawn by the writer in the Times from the clause the form given in the Times is as follows :-“ The whole documents from which they have in fact been drawn. of my property, of whatever description, which is mine, or which As to the transactions relating to the dead, our space does not I may hereafter possess, is pledged in guarantee for the above enable us to print any of the documents given in the Times. It words, that I may fulfil them according to their tenour." It is is sufficient, however, to say that the religion of the Egyptians clear that there is no trace here of forfeiture of all the husband's required the careful preservation of a man's body after his death, goods. He is to give his wife pin and pocket money, and in cer- and the performance of certain rites in perpetuity; that such pertain events he is to pay damages to her, and his property is merely formance was contracted for by the above-mentioned class of charged with these obligations, to the same extent as an English- priests called Choachytes, on their own behalf and that of their man's property is charged by an ordinary covenant. Indeed. descendants; that there was thus a kind of perpetual benefit to the the writer in the Times is confused on this point priests and their descendants in respect of each mummy; and that that the sentence which we have partially quoted above, the priests, in disposing of their benefits, were in the habit of as to “ house and lands and securities being the wife's to dispose doing so by reference to the mummies themselves. It is clear of at her sole will and pleasure,” concludes with the words, and that this amounted to little more than burdening each man's if the man desired to sell any part of his own estate he could only property with a perpetual annuity, for a purpose to which it would do so in the name of his eldest son." But, surely, if he could be easy to imagine an English analogy-say, for example, keeping dispose of his estate at all, he was not so absolutely disfranchised his tomb in good repair for ever. But the writer in the Times in favour of his wife as the writer thinks. Other forms, how-draws the conclusion from the Egyptian custom that the ever, of marriage settlements are given or referred to whereby Egyptian, “ as a corpse, belonged to his choachyte, who could sell the husband grants all his property to his wife, imposing on her him, mortgage him, or will him at pleasure.”. A rasher concluthe obligation to maintain him during his life, and, after his sion this even than those which the same writer draws from the death, to provide for the embalming of his body and the transactions relating to the living. [perpetual] funereal liturgies of his memorial chapel; in other We may conclude these observations by a short reference to an words, the property taken Ly the wife was taken subject to these article in the Saturday Review of December 31, suggested by the obligations. In cases of settlements of this kind, at all events, first of the above-mentioned articles in the_Times-namely, that the writer seems to think that the husband became “ a mere on the marriage settlements. The Saturday Review, oddly enough, instrument in the hands of the wife, with nothing to do but act seems to accept the conclusions of the Times, and accounts for the as her agent and obey her commands.” But surely this is a most supposed superiority of the Egyptian women on the ground that, rash deduction. The amount of the husband's present and probable among savages, the mother is often the root of descent, and thus fortune might in these cases have been inconsiderable, and the the superiority of the wives was a relic of ancient barbarism, or, object might have been a mere conveyancing plan for defeating as the writer expresses it, “ the form which the important position creditors or guarding against the effects of known extravagance or of the mother assumed as society became wealthier and more imprudence; and, after all, the husband reserved very consider- polished.” But among barbarous tribes the mere tracing of able rights as against the wife—i.e., in all probability, as against descent through the mother, the only known relative, by no means the property, for it is not to be supposed that the wife could implies the possession by the mother of either power, property, or dispose of the property free from the husband's rights. The fact, importance. On the contrary, the mother or wife is a mere chattel indeed, seems to be that both the system of trusts and the or slave. The Saturday Review might as well look on our mechanism of life estates were not known to, or, at any rate, equitable doctrine of separate estate, or on the provisions of the
Married Women's Property Act, 1870, is survivals of barbarism as “ (4.) No appeal shall be entertained under this Act except in con ormity regard these marriage settlements of the Egyptians as remnants of with such rules of court as may for the time being be in force in relation to savage life.
the appeal.” On the whole, it appears to us that the safest way to deal with We think the amalgamation of the London Bankruptcy Court with these interesting documents is to suspend our judgment about the the Supreme Court of Judicature very desirable, and could never undergeneral state of the society to which they refer until further stand why the provision to that effect contained in the Judicature Act, documents or other sources of information are made available, and ever, is an adoption in part only of the recommendation of the Incor,
1873, was, by the Act of 1875, repealed. The present proposal, howin the meantime to regard them as probably pointing to a state of porated Law Society. That society recommended that a judge should society diametically opposite in its chief characteristics to that so be appointed to give his whole time to bankruptcy, and not merely one vividly sketched by the writer in the Times.
day a week, as at present, the hearing of the major part of bankruptcy cases in London being transacted by the registrars under delegated powers. Now, so far as practitioners in the conntry are concerned,
the proposal in clause 52, sub-clause (6.), will effect all they can desire in BANKRUPTCY LAW REFORM.
this respect, but in London it may be different. With regard to that
sub-clause we would, however, suggest that the party requiring a matter [COMMUNICATED.)
to be determined by the judge should be required to give notice in
writing to that effect to the court and the opposing party, say, two VIII.
clear days before the day appointed for the hearing. This would save The next clanse of the Government Bill which we come to (44) provides expense, especially if counsel should be instructed. for the Comptroller and his staff to act under the Board of Trade, and With respect to clause 49, sub-clause 4, we wish to remark that we gives the Board power to appoint additional auditors, solicitors, and other were not aware that it was usual to entitle all bankruptcy matters “In Assistants; whilst clause 45 provides that there shall be attached to each bankruptcy." We thivk it is the invariable practice to entitle them “ In court an official receiver or official receivers of bankrupts' estates, to be the London Bankruptcy Court,” or “In the County Court of - holden appointed by and act under the Board of Trade, but to be oficers of the at —," as the case may be. courts to which they are attached. These are necessary provisions to The provision in clause 51 we consider will be a very sensible return to carry out the main proposals of the Government.
the law as it stood before the present Act. Why the change should have Clause 46 defines the duties of official receivers. We have antici- been made by that Act we never could understand, and it is another pated all we have to say on the various sub-clauses of this clause in our instance of making changes for the mere sake of change, and where none remarks upon clauses 11 and 12, clause 16, sub-clause 3 ; clause 18, was ever asked for, which is one of the great blots of that Act. On the sub-clause 1, and clause 33.
subject of this clause we desire to call attention to the exceedingly Clause 47 relates to proceedings of the Board of Trade being received unsatisfactory manner in which, as it appears to us, the Lord Chancellor in evidence, and calls for no remarks.
has exercised his power of excluding county courts from bankruptoy Clauses 48 to 54 are included under the general heading “Judiciai jurisdiction and attaching the same to any other court for the purposes Staff and Proceedings." Before proceeding to comment thereon, we of bankruptcy proceedings under section 79 of the Act of 1869. We will give a general outline of the provisions of those clauses, setting out think there are quite too many county courts with this jurisdiction, and at length only such parts thereof as we desire to call attention to that some centre ought to be selected --say one for each county or division Clause 48 provides for the consolidation of the London Bankruptcy of a county—and all districts within that county or division amalgamated Court with the Supreme Court of Judicature, and makes other provi. into one court for bankruptcy purposes. Take for instance the courts in sions consequent thereon. Clause 49 assigns to the Chancery Division Manchester and thesurrounding district. Now, Manchester has jurisdiction all bankruptcy matters in which the London Bankruptcy Court has at iu bankruptcy, and so has Salford, although the two court-houses are not present jurisdiction, or would have, but for the consolidation to be more than about seven oreight minutes' walk apart, and the two districts are effected by the previous clausa; a judge of the Chancery Division, to be so divided that it is often difficult (and in some cases even impossible) to appointed by the Lord Chancellor, to transact bankruptcy matters, with determine in which district a person resides. The Salford court includes power to sit and exercise jurisdiction in chambers. Sub-clause 4 is as Hulme, Moss Side, and Stretford, Hulme being a part of the city of follows:-"Subject to rules of court, all bankruptcy matters shall con: Manchester, and the other two places being suburbs thereof, much more tinue to be entitled as hitherto 'in bankruptcy.' Clause 50 makes | identified therewith than with Salford. Beyond these, however, in the further provisions for the appointment of an additional judge. Clause 51 county of Chester, and separated from the Manchester district by the is an amendment of section 59 of the present Act, and, in effect, a places named, we find the district of the Altrincham County Court (a return to the provisions of section 88 of the Act of 1861, subetituting very extensive agricultural district) attached to Manchester for bankthe county courts having jurisdiction in bankruptcy for the old local ruptcy purposes ! And we find courts having jurisdiction in Oldham, courts of bankruptcy. Section 59 of the present Act makes the court of Ashton-under-Lyne, and Bolton, all in the same county within a few the district in which the debtor resides or carries on business at the time miles' radius from Manchester, and at Stockport, which, though in of the petition the court to have jurisdiction. This clause proposes to give Cheshire, includes a large district in Lancashire, adjoining Manchester. jurisdiction to the corrt in the district of which the debtor has resided | We are strongly of opinion that it would be more satisfactory if Manor carried on business for the greater part of the six months prior to chester were made a centre for the whole of the division of South-East the petition, or for a greater length of time during that period than Lancashire. It might be that the question of compensation to the in the district of any other court. Clause 52 proposes to restrict the officers of the courts that would be excluded by this proposal would crop power of a judge to delegate his powers to his registrar, as follows:- up, but we do not think that that should stand in the way of such a "(a.) The power to commit for contempt of court shall not be delegated.
desirable improvement, and as counter-balancing that, the saving that "16.) Any person interested shall be entitled to have any particular would be effected in the number of official receivers to be appointed question, being a question of law or involving the exercise of judicial dis- throughout the country might well be considered, and also in the expense cretion, determined by the jądge himself, and the registrar sball adjourn of local audits, if that proposal should be adopted. sky sach question before the judge accordingly."
Clause 53 we think very likely to succeed, as it would do away with Clause 53 is as follows:
that uncertainty as to whether questions should be tried in the Bank
ruptcy Court, under section 72 of the present Act, or by way of action “ If any question of law or fact arises onder a bankruptcy petition in a
in one of the ordinary tribunals, which a long series of cases in the Court local bankroptoy coort which the parties to the question desire, or which of Appeal, beginning with Ex parte Dickin, Re Pollard (26 W. R. 731, one of them and the judge of the local court desire, to be tried in the first L. R. 8 Ch. D. 377), has caused. instance in the High Court of Justice, the qnestion shall be determined in Sub-clause 1 of clause 54 is the same as the present law. Subtbe High Court, and the proceedinge, or suoh of them as may be required, clause 2 seems to be an experiment for the purpose of avoiding the sball be transmitted to the High Court for the parposes of the determi- expense of a double appeal. It will decidedly be an improvemeut for • bation,"
suitors if it does not cause too much work for the Court of Appeal, Clause 54 relates to appeals, and is as follows :
which is the great danger. It does not appear clear from the sub-clause * Decisions in bankruptoy matters shall be subject to appeal as follows :
whether the bankruptcy judge is to sit along with the full number of * (1.) Ad appeal shall lie from the decision of the High Court of Justice We take it that the latter would be quite sufficient, and would be a
three judges in the Court of Appeal, or as constituting one of the three. to her Majesty's Court of Appeal.
" (2.) An appeal sball lie from the decision of a local court of bankraptoy saving of judicial strength. With regard to sub-clause 3, we think a to ber Majesty's Court of Appeal, and for the purpose of hearing and detere right of appeal to the House of Lords should be given where the mining any such appeal the judge of the High Court appointed to exercise amcunt in question exceeds a certain sum, and otherwise only by leave. jarisdiction in bankroptcy shall, unless unable to attend, be a member of we take it this would be so in all cases under clause 53, and with ibe Court of Appeal.
the present restrictions parties might be tempted to proceed under that (3.) An appeal sball, with the leave of her Majesty's Court of Appeal, clause so as to have a right of ultimate appeal to the House of Lords, but not otherwise, lie from the decision of that court to the House of whereas otherwise they might be contented to allow the case to be tried
in the first instance in the Bankruptcy Court at much less expense.