Notes on the Criminal Law and Miscellaneous Acts of the Last Session. 491 The 1st section, therefore, makes it a advertisements or other notices of foreign misdemeanor in every person who un- and other lotteries. Many printers and lawfully or maliciously destroys or dama- publishers of newspapers have inadverges anything kept for the purposes of art, tently rendered themselves liable for these science, or literature, or as an object of penalties, and actions have been brought curiosity, in any museum, gallery, library, to recover them. &c., or any picture, statue, monument, or painted glass in any church, chapel, &c. Punishment not exceeding six months' imprisonment, with hard labour, or once, twice, or thrice privately whipped, as the court may direct; and the punishment to be enforced, whether the offence be committed from malice or not. (s. 2.) It is now enacted, that the persons sued for such penalties may apply to the court to stay the proceedings upon payment of costs. (s. 1.) But this relief is not to extend to actions in which judgments have been obtained. (s. 2.) In future, the penalties incurred are to go wholly to her Majesty, (s. 3); and are Persons committing the offence may be to be sued for in the name of the attorney apprehended by any person, and taken or solicitor-general, or the solicitor of forthwith before a magistrate. (s. 3.) Ac-stamps, &c., and not by any other person. cessories are punishable as principals. (s. 5.) (s. 4.) And nothing in the act is to affect the right of any person to recover damages for the injury committed. (s. 4.) act, verbatim, p. 498, post. See the APPREHENSION OF OFFENDERS. 8 & 9 Vict. c. 120. DOG STEALING. 8 & 9 Vict. c. 47. The substance of this act is stated at p. 499, post. It is unnecessary to give any further analysis of it; and we have no further remark to make upon it, than that the 5th section imposes a penalty of 251. Two acts were passed in the 6 & 7 of for compounding offences against the act. the present reign, cc. 75, 76, for giving The clients of our readers must take care, effect to a convention between her Majesty in advertising for lost (or stolen) dogs, not and the King of the French, and a treaty to engage that "no questions will be between her Majesty and the United asked," or any words purporting that a States of America, for the apprehension of reward will be given without seizing or offenders. It has been deemed expedient making inquiry after the person producing to make provision for giving more imme- the dog. diate effect to the warrant of the Secretary of State for the better execution of such convention and treaty. PREVENTION OF SMUGGLING. 8 & 9 Vict. c. 87. It is now consequently enacted, that any metropolitan police magistrate, to By the 3 & 4 Wm. 4, c. 53, the laws of whom it shall have been signified, by the customs relating to the prevention of warrant of one of the Secretaries of State, smuggling were consolidated. Since that that a requisition has been made to deliver up any person pursuant to such convention or treaty, may issue his warrant for the apprehension of such person in any part of England. (s. 1.) See p. 474, ante. Such person, when apprehended, is to be brought before a police magistrate, who may order his committal until delivered pursuant to the act under which he shall have been apprehended. (s. 2.) This act is to be construed with the acts 6 & 7 Vict. cc. 75, 76. (s. 3.) FOREIGN AND OTHER ILLEGAL LOTTE RIES. 8 & 9 Vict. c. 74. The 6 & 7 Wm. 4, c. 66, enacted certain penalties for printing or publishing act, divers parts of acts for the amendment of the law in that respect have been found necessary; and the present act recites, that it will be of advantage to the trade and commerce of the country, that such act and parts of acts should be consolidated into one act. It is therefore enacted, that after the passing of this act the same shall come into force and operation, and that all the provisions thereof shall extend to any law in force, or hereafter to be made, relating to the Customs. We consider that but few of our readers would wish to have our space occupied with this long act of 137 clauses; and we have therefore merely mentioned its object, in completing our summary of the acts of the session. 492 Notes on the Criminal Law and Miscellaneous Acts of the Last Session. COUNTY RATES. 8 & 9 Vict. c. 111. This act empowers the justices at quarter sessions to appoint committees for assessing county rates, which it is declared expedient to amend. (s. 1.) The committee are authorised to appoint a clerk. (s. 3); to require returns of the annual value of the property in the parish, (s. 4); to cause a new valuation to be made, (s. 9);-to be submitted to a vestry meeting, (s. 12);—and considered at the quarter sessions, (s. 14);—with power of appeal, (ss. 16, 17.) See the act, p. 390, ante. REMOVAL OF Poor. 8 & 9 Vict. c. 117. It has been deemed expedient to amend the laws relating to the removal of poor persons born in Scotland, Ireland, or the 1.) When an order has been quashed for defect in form, the mother may apply again within six calendar mouths. (s. 2.) After some other provisions in detail, for which we refer to the act, p, 240, ante, the 7th section provides, that parties may be heard in these cases at the petty sessions by counsel or attorney. TURNPIKES. 8 & 9 Vict. c. 53. The Turnpike Acts, which would have expired on or before the end of the next session, are continued, by the 8 & 9 Vict. c. 53, to the 1st October, 1846, except the acts which may be sooner repealed under the South Wales Turnpike Act, 7 & 8 Vict. c. 91, s. 34. HIGHWAY RATES. 8 & 9 Vict. c. 59. The act which authorised the applica Islands of Man, Scilly, Jersey, or Guern- tion of highway rates to turnpike roads is Various by this act continued to the 1st October, sey, and not settled in England. acts on the subject, therefore, are repealed, 1846. and it is now provided as follows: HIGHWAYS. 8 & 9 Vict. c. 71. That persons born in Scotland, Ireland, Man, &c., becoming chargeable to any parish in England, may be removed re- The Highways Act, 5 & 6 W. 4, c. 50, spectively to Scotland, Ireland, Man, &c. is extended by the new act to all lands (s. 2.) And justices of the peace may belonging to or which may hereafter belong make new regulations for the removal of to parishes or to the surveyor of the highsuch poor persons, their wives and children, to their respective places of birth or residence. (s. 4.) In the case of parishes not in union, and not containing 30,000 persons, the expenses of such removal is ways. RATING STOCK IN TRADE. 8 & 9 Vict. c. 79. to be paid out of the county or borough stock in trade from being rated to the The 3 & 4 Vict. c. 89, for exempting rate. (s. 5.) Appeals against such re movals may be lodged at the instance of poor, has been further continued by this boards of guardians in Ireland, and of kirk act to the 1st Oct. 1846, and if parliament sessions, heritors, or borough magistrates be sitting, to the end of the then session. in Scotland. (s. 6.) See the act, p. 431, ante. PROCEEDINGS AS TO ILLEGITIMATE 8 Vict. c. 10. In offering this series of notes on the scope and effect of the new statutes, we trust we have succeeded in calling the attention of our readers to the main points of alteration effected in the law and practice. We have not entered into minute details, Divers questions have been raised as to which have been, or doubtless will be, supthe validity of certain orders in bastardy plied by numerous annotators on the made by justices under the 7 & 8 Vict. c. various acts which every session of parlia101, which are stated to be wholly beside ment are passed with such fatal rapidity. the merits of the cases. It is therefore Perhaps we ought not to complain of those enacted, that proceedings in bastardy, great legal authors, the Houses of Lords according to the forms in the schedule to and Commons, who supply these pages the act, shall be taken to be valid and annually with such abundant materials for sufficient in law, provided that the quarter review, analysis, and comment. sessions may determine appeals arising or who, according to Shakspeare's phrase, are orders made before 26th February last. (s." still attornied to the service" of our pro If we, Effect of the New Orders in Chancery. 493 fessional brethren, can scarcely keep pace sooner introduced with reasonable diliwith our law-givers, what must be the gence being required in both cases; and condition of the practitioners who are en- applications for leave to amend after repligaged, early and late, in the bustle of cation must now be supported by an important business? We can only hope, affidavit to the same effect as the affidavit that whilst they have been enjoying a few on applying for leave to amend within the weeks of repose during the long vacation, four weeks as well as to the effect required our labours, which have been nearly in- by the order of 1828. The vexata quæstio cessant, will be found somewhat to have as to whether the four weeks are to be smoothed the way to a right understand- reckoned from the last answer to the oriing of the alterations which have been ginal bill, or to the amended bill, is still effected. left in doubt. EFFECT OF THE NEW ORDERS We now conclude our notes on the New Chancery Orders. The former articles will be found at pp. 400, 441. 16. Injunction to stay Proceedings at Law. In a town cause, in consequence of the eight days now allowed to a defendant to appear, instead of four days, the plaintiff will not be able to obtain the common injunction for want of appearance until after such eight days have expired; but as the new order provides that the plaintiff shall be entitled to it upon petition, he can in future obtain it at any time, whether the court be sitting or not. 17. Revivor. 19. Amended Bill, no Answer required. A defendant will not be allowed to take out a warrant for time in this case, after eight days from notice of the amendment. 20. Defendant likely to abscond without answering. The order under this head, giving the plaintiff power to apply for an attachment before the time of answering is out, is new, and will no doubt in some instances prove useful in practice. 21. Defendant Attached for want of Answer. The alterations effected under this head make it obligatory on the plaintiff to bring a defendant in custody of the serjeant-atarms or messenger to the bar of the court within ten days, and a defendant in prison The practice of obtaining an order to within thirty days, whether the time exrevive for want of appearance, has been pires in vacation or term, and in effect altered. Instead of getting an attachment supersede that rule of the Contempt Act returned " non est inventus," and showing which, where the time expired in vacation, that due diligence has been used in en gave the plaintiff until the first four days deavouring to execute it, the plaintiff may of the ensuing term to bring the defendant in future appear for the defendant, and, up. This provision will make it necessary after the expiration of eight days, move on for one of the judges to be constantly in notice for the order to revive. By the London, otherwise an inconvenience and 63rd Order, provision is made for calling expense still more onerous than under the upon the representatives of a sole plain- previously existing practice, will be imtiff, deceased, to revive the suit or getting posed on the plaintiff, in being obliged to it dismissed, on which point there were travel with the defendant to any place conflicting decisions. where a judge may be at the time. 18. Amendments of Bill. The effect of the defendant's discharge will not, however, now be of so much imThe time allowed for obtaining an order portance, as he will be liable to be taken of course to amend the bill after the last again, unless he answers within eight answer is to be deemed sufficient, is days. shortened by two weeks. Orders for Where a defendant makes the usual special leave to amend, after the expira- oath of his poverty, the court in making tion of four weeks from the last answer the reference may now at the same time being deemed sufficient, are put upon the appoint a solicitor to conduct the inquiries same footing as orders for leave to amend on his behalf. This is a very proper proafter replication, an affidavit that the pro- vision, as it was hardly reasonable to exposed amendment could not have been pect that a pauper defendant, a prisoner, 494 Effect of the New Orders in Chancery. and in most cases an ignorant man, could if absolute, executed, and, if not absolute, himself take the necessary steps for prov- having it duly considered. ing his allegation before the Master. 24. Joining Issue. 22. Pro Confesso-Preliminary Proceedings. Subpoenas to rejoin are abolished. One The first order under this head, by replication only is to be filed in a cause, which within three weeks from a defen- which is to put the cause completely at dant's being taken upon an attachment, issue. This will to some extent diminish a notice can be served for taking the expense, but we fear may lead to difficulties bill pro confesso at the end of three in other respects. weeks, will afford great facilities to the 25. Commission to examine Witnesses. plaintiff, and may in some instances, Commissions will now be issued without if the plaintiff be rapid in his movements, an order, and be made returnable without where the defendant is not in custody of delay. An important alteration has been the serjeant-at-arms or messenger, and the made with respect to the examination of court is sitting, save him the expense witnesses under them. The depositions of bringing the defendant up, if he chooses to waive the costs of the contempt. A who, when the parties cannot agree, is to are to be taken by one Commissioner alone, defendant may apply to be discharged be nominated by the Master from names upon notice, on submitting to have the bill proposed by the parties. This is done with taken pro confesso, without answering, in a view to save expense, but the plan for cases where the justice of the case may carrying it out will, we think, lead to not render an answer absolutely necessary expense and inconvenience, and pro23. Pro Confesso-Hearing-Decree. bably occasion great injustice. Master must either name one of the comA cause in which an order has been made for taking a bill pro confesso, will not now in any case be heard on the same day the order is made,-the practice in respect of which differed in some of the branches of the Court, in the case of a sole defendant in custody. Provision is made that a defendant may appear at the hearing of a cause, where an order has been made for taking the bill pro confesso. This will enable the court to make a more perfect decree than it could upon an ex parte hearing. The missioners proposed at random, or a tedious, expensive, and after all unsatisfactory inquiry be gone into upon affidavit before him as to the unfitness of the commissioner. Great practical difficulty will necessarily arise in ascertaining whether a particular commissioner has any connection with the parties in the suit, and whether the Master selects the acting commissioner after a long investigation, or by chance; if the selection be made from the names given in by the parties, it is not at all improbable that in many cases a commissioner not The plaintiff may now, in all cases where a bill has been taken pro confesso, apply, when altogether impartial may be appointed, althe decree is pronounced, for a direction for though it may be quite impossible to show a receiver or sequestration of the real or it by legal evidence. We conceive it to personal estate of a defendant, or for pay- have been very objectionable under the old ment thereout of such sum as he may system, that the parties should have been appear to be entitled to; but he will not permitted to take any part whatever in the be allowed to act upon it without leave of nomination of the individuals who were to the Court, to be obtained upon notice. The perform the important duty of taking down orders relating to making a decree on a bill the evidence in secret, but it will be much taken pro confesso absolute against a defendant who has not appeared, or not been attached, have fixed much shorter periods for the purpose than those fixed by the Contempt Act, which were unnecessarily long. The provisions, therefore, of that Act in this respect seem to be superseded. Rules for passing publication are abcOn the other hand, the Court will now lished. Town and country causes will now permit the defendant to open the decree, he upon the same footing in this respect, when it is not absolute, even after enrol-publication passing as a matter of course at ment. more so under the new orders, where, unfairness in taking down the evidence, will not be guarded against even by the presence of a second commissioner. 26. Publication. Some additional facilities are given the expiration of two months from the to the representatives of deceased plaintiffs, filing of the replication, unless it be enlarged as well as of defendants, to get the decree, by order. The time allowed will in many New Orders in Chancery.—Points in Common Law. 495 instances be insufficient for getting up the sidered. Costs ordered to be paid by a evidence and having the depositions taken. general or special order may now be taxed, We understand that in old causes com- without an order of reference, which will pletely at issue before the 28th Oct. by save trouble and expense, but in some the replication being filed, and subpoena to cases, as where a demurrer has been alrejoin served, rules will still be given at the lowed by reason of the plaintiff's not having Record and Writ Clerks' Office. It will set it down, some rule must be laid down be advisable for parties not to omit serving as to the mode in which the Taxing Master is to be satisfied that he ought to protheir subpoenas to rejoin before the 28th. ceed with the taxation. 27. Dismissal. 30. Affidavits. We are largely indebted, in preparing these notes, to Mr. Kennedy's edition of the new orders, being (with other orders) an addenda to his "Code of Practice of In cases where there is but one defenAffidavits are all to be made in the first dant, or several defendants who put in a joint answer, a motion to dismiss may be person, which will be attended with two made much earlier than under the former advantages, viz.-1st, It will reduce their practice, viz., four weeks instead of two length considerably; 2ndly, It will render months from the time of the answer being them more intelligible. deemed sufficient; but where there are several defendants putting in separate answers, they will now be unable to compel the plaintiff to expedite his cause, by a motion to dismiss until the last of the answers is deemed sufficient. If these words the High Court of Chancery," and which be interpreted as they have hitherto been, we strongly recommend to our readers as the defendants may be hung up until it a work displaying very accurate and minute suits the plaintiff to require the last answer knowledge of the various subjects included to be filed. This is one of the difficulties in the new orders. We shall take an occasioned by allowing only one replication early opportunity of noticing the new edition of that work, which comprises all The practice as to motions to dismiss the orders from 1828, and brings down the where the plaintiff amended his bill with- references to repealed statutes, and disout requiring a further answer, which was charged or superseded general orders, to in an unsatisfactory state, is now defined the present time. by the 111th Order. A dismissal of the bill after the cause is set down, is to be equivalent to a dismissal on the merits, unless otherwise ordered, and if the plaintiff makes default in setting down the cause, the defendant may set it down and carry it to a hearing instead of dismissing the bill. in the cause. 28. Conditional Order. The Order under this head gives the party wishing to take advantage of the conditional order the option of taking proceedings to enforce the terms of the order, or to treat it as a nullity. 29. Costs. The Taxing Masters are empowered to allow certain costs in taxations between party and party, which may have been reasonably incurred, which will do away with the arbitrary rules hitherto followed in such taxations, and will, no doubt, prove to be a great boon both to the suitor and the profession. A provision is made for the Court to declare proceedings to be improper and of unnecessary length, which will probably lead to discussions, when the more important merits ought to be con POINTS IN COMMON LAW. WARRANT WHEN b VALID THE Construction of the stat. 3 Geo. 4, c. 39, for preventing frauds upon creditors by secret warrants of attorney and cognovits, has long been a subject of judicial dubitation; but in a late case, the Court of Queen's Bench, with every desire to carry out the intention of the legislature, expressly determined that some of the provisions of the act had no meaning at all, and repudiated the reading of the statute adopted by some of the treatise writers on the bankrupt laws. In the principal case, William Streeter, (afterwards a bankrupt,) on the 9th April, |