« ElőzőTovább »
CONTENTS OF VOLUME X X X.
Apprehension of Offenders, 474
Elective Franchise Extension, 6
Ecclesiastical Courts, 21
Real Property Deeds Registration, 113
Dog Stealing, 499
Marriage Law Amending, 116
Civil Actions, 137
List of Public General Acts, 254, 321,363, 384
The Insolvent Debtors' Acts, 349
PARLIAMENTARY REPORTS AND RETURNS :
Railway Committees, 1, 18
Warren's Introduction to Law Studies, 336
Sbelford's Law of Railways, 378
Grady's Law of Fixtures, 437
Lord Brougham's Speech on Law Reform, 49 Nicholls and Doyle's Insolvent Law, 34
Stewart's Real Property Acts, 452
Original Bill in nature of Supplemental, 192 Attempt to Poison, 110
Law of MARRIAGE AND DIVORCE:
Conflicting Decision, 262.
Expense of proceedings in Parliament, &c., 292
Validity of Marriage, 224.
Insolvent Debtors' Petition, 187
Allowance for Short-hand Writers' Notes, 282
Attorney's Costs of Attendance, 318)
Costs payable by a Railway Company, 318
Profert, and Inspection of Documents, 37
Jurisdiction of Common Law Courts to tax
Attestation of Warrant of Attorney, 155
Town Agent, 110
Hearing Attorneys at Quarter Sessions, 25
Staying Actions and Imprisoning Attorneys, 214
Solicitors for both par:ies, 220
Liability of Attorneys, 340
Power to change Attornes-Costs, 454
Setting aside order to stay, by consent, 318
Candidates Passed, 221.
STATE OF THE Bar:
Mr. Pyke's Case and the Inns of Court, 143
PROFESSIONAL SOCIETIES :
Inns of Court, Architecture of, 434
Legal Promotions and APPOINTMENTS, 187, 190,
CIRCUITS, SITTINGS, CAUSE Lists, &c. :
Railway Compensation to Landowners, 179
Dissolutions of Professional Partnerships. See
Devise of Trust Estate, 142, 224
Bankruptcies Superseded, lb.
The Legal Observer,
SATURDAY, NOVEMBER 1, 1845.
"Quod magis ad nos
PROJECTED ALTERATIONS IN vent shall fail to satisfy the court that his THE LAW.
bankruptcy or insolvency has arisen from unavoidable misfortunes, and not from fraud,
wilful misconduct, extravagance, gambling, or It may be appropriate, in commencing improper speculation; or if he shall have been a new volume, to consider the several sub-guilty of concealment or fraudulent transfer of jects which it will probably be our duty to property, destruction or falsification of his bring under discussion during the ensuing books, &c., or of any offence now punishable
by indictment. session. And although parliament is not |
13. That the assignees be deemed judgexpected to assemble until the usual time, me
time, ment creditors of the bankrupt or insolvent for there are already some “notes of warlike the whole amount admitted by him to be due preparation," indicating many projected to his creditors ; and the like as to individual incursions for the removal of our old legal creditors, for the amount of their debts proved; landmarks, which we shall proceed briefly the court to grant certificates thereof, which, to notice. It is true, however, that some upon the protection being withdrawn, will of them may be designed only to cure enable the assignees or creditors to take the defects in modern legislation, and not to
el debtor in execution.
4. That the pension and half-pay of bankoverthrow the ancient. These it will be rupts be made available for the creditors. our business carefully to watch.
1 5. That mortgages and bills of sale of goods I. We have received information that and chattels given as security, be registered very strenuous efforts will be made at the within 21 days after execution, otherwise to be commencement of the session for the void as against the assignees. amendment of the Law of Bankruptcy and
od 6. That the Court of Bankruptcy, upon the
decease of a trader, and in case of no legal Insolvency. A committee of merchants
s personal representative being appointed within and traders was appointed, at a public
traders, was appointed, at a public a month afterwards, shall send a person to meeting held at the London Tavern in remain in charge of the effects, until an execuMay last, at which Mr. Masterman, M. P., tor or administrator shall be appointed; and presided, and which we noticed at the in default for one year, the court shall appoint time. Their plan, in its principal features, an official assignee of the estate, and administer is this :
the effects as if a fiat had been issued. 1. That the Court of Bankruptcy, upon the Such is the substance of the alterations non appearance of a trader debtor to a sum- suggested by this commercial Association, mons, or upon his not proving that he has a land
a and which have been embodied in a bill good defence, shall appoint some person to proceed to the debtor's premises, and prevent
brought in by Mr. Masterman and Mr. the removal of the property, unless satisfac. Hawes. Seeing the mischievous effect of torily informed of its destination; and to re- several recent enactments on the interests quire an account of all monies received and of trade and commerce, we do not wonder paid during the time of his continuing in pos- that the merchants of London should at session, until the opening of a fiat.
2. That the Court of Bankruptcy suspend or withdraw its protection from arrest from the a A similar registration is now required of bankrupt or insolvent debtor at any time, at its warrants of attorney and cognovits, when judgdiscretion, particularly if the bankrupt or insol- ment is not entered up within 21 days.
Vol. XXXI. No. 921.
Projected Alterations in the Law. length bestir themselves. Our readers will, and he submits to his lordship that this readily form their own opinion of the pro- court should have jurisdiction in cases of priety and expediency of adopting these real or apparent inability on the part of recommendations. It will be seen that debtors to fulfil their engagements ; such their main and proper object is, to pro- debtors coming within any of the following cure larger powers over the property of classes, viz. :debtors than hitherto existed. The tide 1. Habitual traders, or such as are within for a long time has been running in favour the provisions of the present bankrupt laws. of “the poor debtors,” and against the in- 2. Persons who, though not habitual traders, terests of the defrauded creditors. It are indebted in respect of commercial contracts, seems now turning in a better direction. as The power of arrest having been taken limita
1 3. Persons indebted to traders under certain from the creditor, he justly seeks to possess, 4. Judgment debtors. in return, every possible means of obtaining 5. Depositories of the money or effects of others. the debtor's property, and where his con. 6. Conventionary debtors, or persons having duct has been culpable or fraudulent, to obtained letters of license, composition or inpunish him by imprisonment.
spection deeds, &c. Whilst the merchants are thus coming It is then proposed, by the aid of the forward to protect their own just rights judges, (consisting of a chief and three and interests, the lawyers have not been puisne judges) with sub - commissioners inattentive to the evils of the existing and registrars, to remedy the inconvenient system. Amongst them, we have parti- extent of the present districts, or to incularly to notice the labours of Mr. Ser-crease the number of districts, appointing jeant Manning, who has prepared an ela- one commissioner to make a monthly cir. borate and learned report, addressed to the cuit, and the other to remain stationed in Lord Chancellor, in which he reviews the a large central town. history and present state of the laws of The next proposal relates to letters of bankruptcy and insolvency, as well in this license, composition and trust deeds, &c., as other countries. He thus states the prin- under which arrangements the learned ciple on which the laws should be framed:- Serjeant enters into very lengthened de
1. « To place the creditor in a situation as tails. He then proceeds to compulsory near to that in which he would be entitled to and voluntary declarations of insolvency, stand according to the terms of the original and the measures requisite for rendering contract, as the altered circumstances of the available the present and future acquired debtor will allow.
property of the debtor. In the general 2. “ To relieve the insolvent from all incon
all incon- view we are now taking, it is unnecessary venience and suffering not necessary for the purpose either of enforcing payment to the
to consider these details. To them and
other subjects discussed in this “ Proposal couraging the imprudence and repressing the for the Amendment of the Law of Bankfraud and crime in which insolvency and bank ruptcy and Insolvency,” we shall return in ruptcy so often originate.”
due season. The learned Serieant then submits to II. We have next to call attention to the Lord Chancellor, as the first measure the renewed project of a General Registry for consideration, a consolidation of juris- of all deeds relating to property, freehold diction in all matters connected with in- or leasehold. A bill for carrying this solvency, whether of a commercial or non object into effect was brought in by Lord commercial character. He says —
Campbell on the 26th May last, and will “ The object of a sound legislation in both
doubtless be introduced again in the early cases being the protection of the creditor, and part
or and part of the ensuing session. Our older subordinately thereto, the relief of the debtor. readers will recollect how this important there appears to be no reason for the continu- measure was battled in the early volumes ance of distinct and sometimes conflicting of the Legal Observer, not only when it jurisdictions in respect of the two classes of was first introduced in the year 1830, but insolvents.”
on all occasions whenever it made its He then proposes a new court of record, appearance. to be called “ The Court of Insolvency for The question peculiarly affects all that England and Wales,” or “ The Court of class of persons who require temporary Insolvency and of. Matters of Account ;' loans, which have hitherto been effected
by a deposit of title deeds, or by a mortb See the bill, 30, L. O. 460. gage, which, not being registered, does
Projected Alterations in the Law. not expose the transaction to a curious or ever, admit the force of this position. ill-disposed rival, or a litigious opponent. Rather let us amend the blunders which
The frauds committed for want of regis- have been committed, and retrace our tration, according to the evidence which steps, than, persisting in error, deviate still was given before the Real Property Com- more from the right course. " missioners, appear to be not one in a III. Then comes the important subject thousand. Supposing that some further of Local Courts. It can scarcely happen, endeavours should be made to provide that the hasty and ill-considered clauses against these rare instances of deceit which added to the Small Debts Act of the last escape the vigilance of the lender's solici- session, will be deemed a sufficient settletor, we have then to consider- whether ment of this long mooted question. Una law which should give priority to all | less those enactments are repealed, or registered incumbrances, (despite all essentially altered, there must be some other notice, would not occasion as general measure to place the newly many frauds as it will prevent. Money enlarged courts upon a rational footing. might still be lent on the faith of a deposit If there are to be two systems of adminisof deeds, in ignorance or disregard of the tering justice in regard to debts,-one law, and on the reasonable supposition that above and the other below 201., - the law no one would make an advance upon a and practice in the local and inferior bare mortgage, without a delivery of the courts must be framed upon an intelligible title deeds, and in all but rare instances and uniform plan. Those who live in the no doubt such delivery would take place ; country have the means of accurately and then would come the various questions knowing the state of the law and practice of constructive notice, unless it be intended in the courts at Westminster. Why should absolutely to abolish them.
not those who are compelled to resort to Besides the consideration of the grounds the provincial districts have the same adand principle of the measure, we must look vantage ? As the matter stands at at its practicability. Is the place of regis present, each petty tribunal -- whether tration to be in the metropolis, or some court of conscience or request, county principal city or town of each county ? court, or manor or borough court, when Must the profession in the country be enlarged in its jurisdiction of amount and driven to town on every occasion to search district, - will be regulated by its present the registry, or must one and all be com- system of proceeding; so that the suitors pelled to travel from one county to ano-therein will have no uniform course of ther, wherever the property may be situate? proceeding to guide them.
Then there are no small difficulties in the We scarcely expect that the voice of · mode of registration ; the description of the lawyers will be listened to; but the 'small estates ; the imperfection of indexes; merchants and wholesale traders must be and the responsibility of searches ! enabled to recover their debts in the
It will be urged, that there is now a various separate districts, without the material difference in the position of the difficulty and inconvenience of sending question, compared with its former state. their agents and witnesses to distant We are aware that the alterations which places. Where the debtor resides more have been made in the law of real pro- than twenty miles from his creditor, the perty by some recent statutes, lead some latter should have the right of suing in the persons (but without, we think, sufficient superior courts. In fact, there should be reason) to conceive that the time has a concurrent jurisdiction in regard to all arrived when further changes should be sums above 10l. (if not above 51.,) to sue effected, and amongst others, the estab- in the superior courts. The judges, inlishment of a general registry.
deed, under the act, in its present state, This is one of the evils which accompany will have to decide whether this is not the all changes in the law. They are, as we true construction of the intention of the have seen of late, prepared and passed legislature. By one of the clauses, 8 & 9 with imperfect knowledge and without Vict, c. 127, s. 21, a defendant may resufficient consideration, and require either move the action if the sum exceed 101.; to be repealed or amended, or new mea and it must be inferred that the plaintiff is sures taken to provide against the mis- equally entitled to have the choice of the chiefs consequent upon the change. Thus, court to which he thinks proper to resort. it is now said, that having gone so far, we If the act be not altered, this question will must proceed farther. We cannot, how- no doubt soon bc raised.