Notes on the Small Debts Act. the commissioner [of bankrupts] or court may make "an order on the debtor for payment of his debt by instalments or otherwise." 311 court, and being questioned, refuses altogether to disclose his property; he is then remanded to prison for a month; but a week before the time expires he intimates 6. Then is enacted the punishment of his willingness to be examined, and makes the debtor by imprisonment for any time his appearance for that purpose. He not exceeding 40 days, for the following gives various shuffling answers, but "not acts of misconduct : to the satisfaction of the commissioner or the court," and it would be very odd if [1.] Not attending, as required by the summons, and not alleging a sufficient excuse for either the one or the other were satisfied. not attending; [2.] refusing to disclose his He is remanded again,-for how long? the property or his transactions respecting the residue of the month? No! that would be same, or respecting the contracting of the very inadequate. "Let him be imprisoned," debt; [3.] not answering to the satisfaction of says the commissioner, "for the full term the commissioner or the court; [4.] having empowered by the act." He has already, been guilty of fraud in contracting the debt; (according to the phrase of Mr. Carus [5.] having wilfully contracted it without reasonable prospect of being able to pay it; [6.] Wilson,) been "the victim of lawless ophaving concealed or made away with his pro- pression" for four weeks,-one for conperty in order to defeat his creditors; [7.] tempt of court in not appearing at all, and having the means of paying the same by instal- three weeks for standing mute when he did ments or otherwise, and not paying the same at appear: are these 28 days to be deducted such times as the commissioner or court shall from the 40? order, or as the court shall have ordered in which the original judgment shall have been obtained or order made. be of opinion that the arm of justice is not Suppose the commissioner or court to thus to be shortened, the culprit is thereThe inquiry, therefore, before the com- fore ordered into custody for 40 days, for missioner or court, may be directed towards not answering satisfactorily; and we preestablishing any one of these several offences, sume the warrant to the keeper of the upon which the debtor may be imprisoned," common gaol wherein debtors in execuaccording, we suppose, to the measure of tion may be confined," will duly specify his culpability. Forty days' confinement the cause of commitment and duration of is the chief or "capital" punishment. imprisonment. Well! after the 40 days, This will be applicable to him who is the prisoner is set at liberty. In the mean guilty of fraud. How the scale will be graduated for minor offences, down to "non-attendance without sufficient excuse," time will show. It is, however, marvellous, that just before the end of the session of 1844 all the prison doors should be thrown open for the exit of 20%. debtors, and about the same period in 1845, a new law should pass for shutting up the very same persons for we cannot doubt that most of them are liable under one or other of the seven offences which we have, for the sake of distinctness, above enumerated. A material question may arise in carrying these penal enactments into effect, namely, whether the forty days must be the "total of the whole," or grand total, or whether it may be administered either wholly or partially on each occasion of offence? For example, a debtor does not attend the summons, and gives no excuse, or a very bad one, and to prevent this " contempt of court" being followed by others, he is imprisoned a week. Then he is brought up in custody of the officer of the time, the creditor or his attorney has dis covered that the debt was contracted in fraud, or that the debtor had no reasonable prospect of being able to pay it. The man is summoned again, and a case of fraud is clearly proved. Is he liable to another 40 days' imprisonment? These and many other questions of the same kind may be suggested, which we shall leave to those whose duty it may become to protect the interests of their clients. The 2nd section provides for the mode in which the order of imprisonment shall be executed, and has this remarkable addition, that "No protection, or interim or other order, issuing out of any court of bankruptcy, or for the relief of insolvent debtors, or any certificate obtained after such order for imprisonment under this act, shall be available to any debtor imprisoned under such order." Nothing, therefore, is to stand in the way of the stringent powers conferred by this act; and it is well that the interim orders of protection, which are often granted with too much facility, are not permitted to the practice of the superior courts; but if interrupt the course of justice where mis- it be intended to authorize other than duly conduct or fraud has been committed. qualified barristers or attorneys to conduct By the 3rd section it is also properly the proceedings, it will be most unjust and provided, that no imprisonment under this mischievous. We have no apprehension, act shall in any wise operate as a satisfac- however, that any commissioner of the tion or extinguishment of any debt or court of bankruptcy, or any judge, being a demand. barrister, special pleader, or attorney, will Under the 4th section, the judge of permit an unqualified person to address every court of requests or conscience, and him as an advocate; but the danger of inferior court of record, being a barrister, this clause is, that the parties, whether special pleader, or attorney, is to have the debtors or creditors, whilst conducting like powers of examining the parties, and, the proceedings in their own names, will in the several cases before specified, of be aided by persons having a smattering committing the defendant to prison, which of legal knowledge, and much presumption, might be exercised under the provisions who will prepare their papers, mis-advise before contained, if judgment had been them, and generally make higher charges obtained in his court, and the judgment than regular practitioners. We believe, creditor had obtained a summons under therefore, that the clause will work injus this act; and all the provisions of the act tice to the profession, and be mischievous are to apply to such case as if such summons had been obtained. The powers of imprisonment, therefore, which courts of request possessed, until their abolition by the act of 1844, (7 & 8 Vict. c. 96,) are now restored, where any of the instances of misconduct exist which we have enumerated under the 1st section, accompanied by all the powers there conferred on commissioners of bankrupts. This is so far a proper correction of the mistake of the act abolishing arrest. The 6th section, to which we have already referred, authorises applications to be made to any commissioner or court, or any proceedings to be taken under this act, without employing either counsel or attorney; and this extends to applications or proceedings under 5 & 6 Vict. c. 116, and 7 & 8 Vict. c. 96. to the parties. We hope, however, that some means will be found, by the rules and orders of practice, to mitigate the evil, especially as these irresponsible and unqualified persons will be chiefly engaged in abetting parties in the very worst class of cases. These are the most important provisions of the act, except the clauses which enlarge the jurisdiction and districts of the courts of request and conscience. There are a few minor clauses, which are as follow: : All affidavits, as well in bankruptcy or insolvency, as under this act, may be sworn, according to the 7th section, before a visiting justice, or if none attend within 12 hours, then the principal keeper of the prison may administer the oath. The actual necessaries of judgment debtors, of himself and family, and his tools and imconsisting of the wearing apparel and bedding plements of trade, the value in the whole not exceeding 51., is by section 8 protected from seizure under any execution or order. The schedules to the act, referred to in section 15, contain the fees to be received by the of bankruptcy in regard to the new proceedregistrars, messengers, and ushers of the court ings under this act. It will be remembered that, contrary to Lord Brougham's opinion, the commissioners in bankruptcy decided that the petition and schedule of a debtor must be attested by an attorney; and there can be no doubt that this was the more convenient mode for the regular dispatch of business, whilst the small expense which it occasioned was well incurred in saving the applicant from inconvenience and delay, The 9th and other clauses, which in in consequence of his ignorance of the effect establish an entire new system of provisions of the law and the rules and local courts, will be the subject of our next regulations of practice. This course, commentary. We have received several moreover, facilitated the duties of, and letters on this and other parts of the act, afforded some protection to, the court which naturally excite much attention against deception, for the regular practi- amongst the practitioners of the common tioners, for their own sakes, would take no law courts; and we invite further commu- · part in such deceptions. nications from our intelligent correspond This new enactment, enabling a party to appear for himself, is in conformity to ents. New Statutes Effecting Alterations in the Law. NEW STATUTES EFFECTING ALTERA- TESTAMENTARY DISPOSITIONS. 313 and credits of such person shall have been first left at the Bank of England for registration thereof; and that it shall be lawful for the said governor and company to require all the executors who shall have proved the will of any deceased person in whose name any such stocks are now or at any time hereafter may be standing to join and concur in every transfer thereof or of any part thereof. 1. That all the share or interest in any public stocks now standing in the books of the governor and company of the Bank of England in the name of any deceased person, and all the share and interest of any person who shall hereafter die possessed of any such stocks standing in his name as aforesaid, shall and An act to amend the Law respecting Testa- may be assigned and transferred by the execu mentary Dispositions of Property in the Pub-tors or administrators of such person, notwithlic Funds, and to authorize the Payment of standing any specific bequest or disposition Dividends on Letters of Attorney in certain thereof in the will of such person contained: Cases. [4th August, 1845.] Provided always, that the said governor and All shares of public stock standing in the company of the Bank of England shall not be books of the Bank of England in the name of any required to permit or allow the executors or deceased person may be transferred by the execu- administrators of any such person to transfer tors notwithstanding any specific bequests. Bank any such stocks, or to receive any dividend may require all the executors to join in the trans-thereon, until the probate of the will or the fer of stock. Whereas by an act passed in the letters of administration of the goods, chattels, 1 G. 1, c. 19, intituled "An act for raising 910,000 for Public Services, by Sale of Annuities after the rate of 51. per centum per annum, redeemable by Parliament, and to authorize a Treaty concerning private Rights claimed by the Proprietors of the Sugar Houses in Scotland," and by divers acts since passed for creating stock, funds, and annuities payable out of the public revenue, and for the consolidation, regulation, and management of such 2. Bank not to register specific bequests.—And stocks, funds, and annuities respectively, it is be it enacted, That so much and such respecenacted, that any person or persons possessed tive parts of any and every act now in force as of any estate or interest in the public stocks or require all or any part of any will or codicil funds, and annuities by the same acts respec-devising or bequeathing or purporting to devise tively created, may devise the same by will in or bequeath any estate, property, or interest in writing, attested by two or more credible wit- any public stocks, or in any dividends arising nesses, but that no such devisee shall receive therefrom, to be entered or registered in the any payment thereupon until so much of any office of the chief accountant of the governor such will as shall relate to such stock or an- and company of the Bank of England, or in any nuity respectively shall be entered or regis- other office, or in any book of the governor and tered in the office of the chief accountant for company of the Bank of England, shall be and the time being of the governor and company of the same are hereby respectively repealed, and the Bank of England, and that in default of that from and after the passing of this act it any such devise such stocks or funds shall be sufficient for the said governor and tively, and the respective annuities attending company, before permitting the transfer of any the same, shall go to the executors or adminis- stocks, or the receipt of any dividends upon trators of the person or persons dying entitled any stocks standing in the name of any dethereto And whereas doubts have arisen as to ceased person, to register the names of the the true construction and effect of the provisions deceased party, and of his executors or adaforesaid; and the registration of specific de- ministrators respectively, as the case may be. vises or bequests of property in such stocks, 3. Powers of attorney to be given for receipt funds, and annuities as aforesaid has been of dividends in certain cases.-And whereas, it found in practice to be unnecessary and incon- frequently happens that stock is standing in venient; and it is expedient that such doubts the names of infants or persons of unsound should be removed, and that the provisions mind, jointly with persons not under any legal made by the said acts respectively for such disability to act, and such last-mentioned perregistration should be repealed: And whereas it sons are not able to attend personally to receive hath been the practice of the governor and the dividends thereon, and no power of attorney company of the Bank of England to require can be granted for the receipt of such divithat all the executors of any person entitled to dends; be it therefore enacted, That whenever any share or interest in any stocks, funds, or it shall happen that any stock shall be standing annuities transferable at the Bank of England in the name of any infant or person of unsound. should join in the transfer thereof, and it is mind, jointly with any person not under any desirable that the same should be confirmed by legal disability to act, it shall be lawful to and law: Be it therefore enacted and declared by for such last-mentioned person, by letter of the Queen's most excellent Majesty, by and attorney under his hand and seal, attested by two with the advice and consent of the Lords spiritual and temporal, and Commons, in this present parliament assembled, and by the authority of the same, respec or more credible witnesses, to authorize some other person to receive the dividends due and to accrue due on such stock; and the payment of any such dividend to any person so appointed 1 314 New Statutes Effecting Alterations in the Law. shall discharge the said governor and company duty on grants thereof.-That, after the 1st day of the Bank of England in respect thereof: of October 1845, all corporeal tenements and Provided always, that it shall be lawful for the hereditaments shall, as regards the conveyance said governor and company, before acting on of the immediate freehold thereof, be deemed any such letter of attorney, to require proof to to lie in grant as well as in livery; and that the satisfaction of the said governor and com- every deed which, by force only of this enactpany of the age of such infant, or of the un-ment, shall be effectual as a grant, shall be soundness of mind of such person, by the de-chargeable with the stamp duty with which the claration of competent persons, to be made in pursuance of the act passed in the 6 Wm. 4, authorizing the substitution of a declaration in lieu of an oath in certain cases. 4. Interpretation of act.-And be it enacted, That the word "stock" in this act shall extend to any stocks, funds, or annuities which now are or at any time hereafter shall be transferable at the Bank of England; and that the plural number in this act shall be construed to include the singular; and that the masculine gender in this act shall be construed to include the feminine. Be it enacted by the Queen's most excel lent Majesty, by and with the advice and consent of the Lords spiritual and temporal, and Commons, in this present parliament assembled, and by the authority of the same, as follows; (that is to say,) same deed would have been chargeable in case the same had been a release, founded on a lease or bargain and sale for a year, and also with the same stamp duty (exclusive of progressive duty) with which such lease or bargain and sale for a year would have been chargeable. 3. Feoffments, partitions, exchanges, leases, assignments, and surrenders required (subject to certain exceptions) to be by deed.―That a feoffment, made after the said 1st day of October 1845, other than a feoffment made under a custom by an infant, shall be void at law, unless evidenced by deed; and that a partition, and an exchange, of any tenements or hereditaments, not being copyhold, and a lease, required by law to be in writing, of any tenements or hereditaments, and an assignment of a chattel interest, not being copyhold, in any tenements or hereditaments, and a surrender in writing of an interest in any tenements or hereditaments, not being a copyhold interest, and not being an without writing, made after the said 1st day of interest which might by law have been created made by deed: Provided always, that the said changes or partitions to imply any condition, or 1. Repeal of so much of 7 & 8 Vict. c. 76, as abolishes contingent remainders as from the commencement; and the residue as from 1st Oct. 1845. That so much of an act passed in the last session of parliament, intitled "An act to simplify the Transfer of Property," as enacted that, after the time at which that act should come into operation, no estate in land should be created by way of contingent remainder; but that every estate which, before that time, would have taken effect as a contingent remainder should take effect (if in a will or codicil) as an executory devise, and (if in a deed) as an executory estate of the same nature, and having 5. Strangers may take immediately under an the same properties, as an executory devise indenture, and a deed purporting to be an inand that contingent remainders existing under denture shall take effect as such.-That, under deeds, wills, or instruments, executed or made an indenture, executed after the 1st day of before the time when that act should come into October 1845, an immediate estate or interest, operation, should not fail, or be destroyed or in any tenements or hereditaments, and the barred, merely by reason of the destruction or benefit of a condition or covenant, respecting merger of any preceding estate, or its determi- any tenements or hereditaments, may be taken, nation by any other means than the natural although the taker thereof be not named a party effluxion of the time of such preceding estate, to the same indenture; also, that a deed, exeor some event on which it was in its creation cuted after the said 1st day of October 1845, limited to determine, shall be and is hereby re- purporting to be an indenture, shall have the pealed, as from the time of the commencement effect of an indenture although not actually and taking effect thereof; and that the residue indented. of the said act shall be and is hereby repealed, as from the 1st day of October 1845. 2. The immediate freehold of corporeal tenements to lie in grant as well as in livery. Stamp 6. Contingent and other like interests, also rights of entry, made alienable by deed, saving estates in tail; and as regards married women enjoining conformity to 3 & 4 W. 4, c. 74; 4 & 5 W. 4, New Statutes Effecting Alterations in the Law. 315 c. 92.—That, after the 1st day of October 1845, cond schedule employed, the deed to have the a contingent, an executory, and a future inter- same effect as if words of Column II. were inest, and a possibility coupled with an interest, serted. Whereas it is expedient to facilitate in any tenements or hereditaments of any the leasing of lands and tenements: Be it entenure, whether the object of the gift or limi-acted by the Queen's most excellent Majesty, tation of such intesest or possibility be or be by and with the advice and consent of the Lords not ascertained, also a right of entry, whether spiritual and temporal, and Commons, in this immediate or future, and whether vested or present parliament assembled, and by the aucontingent, into or upon any tenements or thority of the same, That whenever any party hereditaments in England, of any tenure, may to any deed made according to the forms set be disposed of by deed; but that no such dis- forth in the first schedule to this act or to any position shall, by force only of this act, defeat other deed which shall be expressed to be made or enlarge an estate tail; and that every such in pursuance of this act, shall employ in such disposition by a married woman shall be made deed respectively any of the forms of words conformably to the provisions, relative to dis- contained in Column I. of the second schedule positions by married women, of an act passed hereto annexed, and distinguished by any numin the 3 & 4 W. 4, c. 74, intituled "An act for ber therein, such deed shall be taken to have the Abolition of Fines and Recoveries, and for the same effect and be construed as if such the Substitution of more simple Modes of As-party had inserted in such deed the form of surance," or in Ireland of an act passed in the words contained in Column II. of the same 4 & 5 W. 4, c. 92, intituled "An act for the schedule, and distinguished by the same numAbolition of Fines and Recoveries, and for the ber as is annexed to the form of words employed Substitution of more simple Modes of Assur- by such party; but it shall not be necessary in ance, in Ireland." |any such deed to insert any such number. 7. Capacity of married women to disclaim estates or interests by deed extended to England. -That, after the 1st day of October 1845, an interest in any tenements or hereditaments in England, of any tenure, may be disclaimed by a married woman by deed; and that every such disclaimer shall be made conformably to the said provisions of the said act for the abolition of fines and recoveries and for the substitution of more simple modes of assurance. 2. Deed to include all houses, &c.—That every such deed, unless any exception be specially made therein, shall be held and construed to include all outhouses, buildings, barns, stables, yards, gardens, cellars, ancient and other lights, paths, passages, ways, waters, watercourses, liberties, privileges, easements, profits, commodities, emoluments, hereditaments, and appurtenances whatsoever, to the lands and tene. ments therein comprised belonging or in anywise appertaining. 8. Contingent remainders protected as from 31st December 1844, against the premature 3. Remuneration for deed under the act not to failure of a preceding estate. That a con be by length only. That in taxing any bill for tingent remainder, existing at any time after the 31st day of December 1844, shall be, and, preparing and executing any deed under this if created before the passing of this act, shall act it shall be lawful for the taxing officer and he is hereby required, in estimating the proper be deemed to have been, capable of taking sum to be charged for such transaction, to coneffect, notwithstanding the determination, by sider, not the length of such deed, but only the forfeiture, surrender, or merger, of any pre- skill and labour employed, and responsibility, ceding estate of freehold in the same manner, incurred, in the preparation thereof. in all respects, as if such determination had not happened. 4. Deed failing to take effect by this act to be as valid as if act not made. That any deed or part of a deed which shall fail to take effect by virtue of this act shall nevertheless be as valid and effectual, and shall bind the parties thereto, so far as the rules of law and equity will permit, as if this act had not been made. 5. Construction clause. That in the construc 9. When the reversion on a lease is gone the next estate to be deemed the reversion. That when the reversion expectant on a lease, made either before or after the passing of this act, of any tenements or hereditaments, of any tenure, shall, after the said 1st day of October 1845, be surrendered or merge, the estate which shall tion and for the purposes of this act, and for the time being confer as against the tenant the schedules hereto annexed, unless there under the same lease the next vested right to be something in the subject or context repug the same tenements or hereditaments, shall, to nant to such construction, the word “ lands" the extent and for the purpose of preserving shall extend to all tenements and hereditaments such incidents to, and obligations on, the same of freehold tenure, and to such customary lands reversion, as, but for the surrender or merger as will pass by deed, or deed and surrender, thereof, would have subsisted, be deemed the and not by surrender alone, or any undivided reversion expectant on the same lease. 10. Act not to extend to Scotland.That this part or share therein respectively; and every word importing the singular number only shall act shall not extend to Scotland. extend and be applied to several persons or things as well as one person or thing, and the converse; and every, word importing the masculine gender only shall extend and be applied to a female as well as a male; and the word "party" shall mean and include any body GRANTING LEASES. 8 & 9 VICT. c. 124. An act to facilitate the granting of certain 1. Where the words of Column I. of the se S 5 |