558

The Public, the Profession, and the County Courts.—Commercial Failures.

within the last few years, have been sug-fitable occupations are neglected, or they
gested by professional men, who have had employ professional assistance at their own
the general support of the whole body of private cost, or-worst alternative of all—
their brethren in every measure of actual place themselves in the hands of some of
improvement by which the public could those unauthorised harpies, to whom the
profit. There is something, therefore, new act gives ample encouragement. The
very illiberal in treating the opposition of public will not, and indeed cannot, act for
lawyers to certain measures of so-called themselves in the County Courts, without
legal reform as the result of sordid feeling, the most serious inconvenience and loss;
when the hostility shown towards new but, as the scale of fees allowed will not
schemes is in most cases dictated by a just remunerate respectable men, it follows as
perception of their total impracticability or an inevitable result that pettifoggers and
utter worthlessness.
pretenders will step in to take whatever
It is, perhaps, as well that the public they can get from the suitors who are
should now and then be made to feel the abandoned entirely to the mercy of these
inconvenient consequences of a delusion operators on their ignorance and helpless-
which the sufferers have fallen into with ness. The newspapers have already
wilful alacrity. Like the frogs in the fable, teemed with reported cases of hardship,
who complained to Jupiter without cause, besides numerous letters of complaint from
and obtained in succession a stork and a those who have experienced the working
log, the public will find in the County of this measure for bringing home justice
Courts Act the properties of both these to every man's door, provided every man
gifts combined, for there are already loud can carry it home himself, which he is
complaints of the voracity with which about as able to do, in some instances, as
money is swallowed up in fees, and of the he would be to transport to his own abode
machinery proving an immovable log to the a quantity of heavy goods without the in-
suitors through their being deprived of tervention of a carrier.
professional assistance in working it. The

pretence of cheapness in the carrying out COMMERCIAL FAILURES.

AVOIDANCE OF THE

COURT OF BANKRUPTCY.

of the new measure is found to be the hollowest of all hollow delusions, for the act proceeds upon the ridiculously erroneous principle that a man must effect a saving by acting for himself instead of paying another to perform for him the SINCE the first week in August, above service he requires. According to this forty commercial houses, placed by the doctrine, an individual having to send a magnitude of their mercantile transactions letter to Liverpool had better take it him- in the first class, have unfortunately been self and save the postage,-a case which, compelled to suspend their payments; though an extreme one, is analogous to the and singular as it might seem, up to the presumption of the framers of the County period when we write, in no instance have Courts Act, that suitors will be benefited we heard that the partners in any of the by appearing in person instead of delegat- insolvent firms have been made banking their business to a legal practitioner re- rupt. In ordinary cases, when a merceiving a fair remuneration for his services. chant or a tradesman avows himself to be We cannot believe that the public will unable to meet his pecuniary engagepatiently submit to a burden that has ments, his name appears in the next already proved most vexatious in various Gazette under the List of Bankrupts, quite ways; and we therefore confidently expect as a matter of course. How the leviathans that in the ensuing session many of the of commerce escape from the meshes of evils of the County Courts Act will be the law, in which not only the dolphins, remedied. The hopeless absurdity of dis- but the minnows, are inevitably caught, is pensing with legal assistance is already so a mystery productive of much speculative manifest, that this ruinous piece of experi- observation. mental quackery must be promptly got rid of. Already it is practically nearly at an end, for men engaged in business either abandon wsthe claims which they can only sustain by hanging about the precincts of a County Court for hours, during which their pro

The course of proceeding by which the Court of Bankruptcy has been avoided in the instances alluded to, is simple enough, and has become perfectly notorious. defaulters call their creditors together, lay before them a statement of assets, debts,

The

Commercial Failures-Avoidance of the Court of Bankruptcy.

559

and liabilities, and it is agreed, without to such cases, either the constitution of more, that the affairs of the defaulting the tribunal or its administration must be house shall be wound up with the least defective. We fear it must be conceded possible delay, under an assignment to that the mode in which the Bankrupt trustees for the benefit of creditors, or Laws are administered is not satisfactory else what is called "a deed of Inspection." to the commercial community. There is A competent accountant is employed, an absence of uniformity in the decisions the assets, whatever they may be, col of the commissioners upon many points of lected, and the amount distributed rateably grave importance. Leniency and severity amongst the creditors. The uniform are frequently meted out to bankrupts adoption of such a course of proceeding, in upon principles quite unintelligible to comnumerous instances, evidences the exist-mercial men. No one can predicate with ence of mutual confidence in a remarkable confidence in what tone and temper the degree amongst all the parties concerned. complaint of a creditor will be entertained, If the creditors of firms failing for large or the explanation of a bankrupt received. amounts entertained the slightest suspicion The arrangement of business in the several that there was any wilful mis-statement or courts is peculiarly inconvenient and obconcealment of the affairs of the insolvent jectionable to men of business, and the houses, or that any fraudulent preference expenses of working a fiat are constantly or appropriation of property was contem- complained of, as being altogether disproplated, it is not probable that they would portioned to the benefit derived in ordinary voluntarily relinquish the facilities afforded cases from the machinery which the court by the Bankrupt Laws for the investigation supplies. of a bankrupt's affairs, and the recovery of In reference to the expense of working property improperly withheld or trans- a fiat, we believe great misconception ferred. On the other hand, an insolvent prevails, and deem it more than doubtful who assigns the whole of his effects for the whether an estate of large amount could benefit of his creditors, must have a full be realized and divided under any system reliance on their liberality and honour, more economical. The sum of 301., paid when he depends on them for present pro- to the Accountant-General under the stat. tection and future indemnity, in preference 1 & 2 W. 4, c. 56, ss. 46 and 50, although to the legal protection and indemnity in- objectionable upon principle in every case, sured by a certificate of conformity under and operating most unfairly in cases where the Bankruptcy Acts. The prevalence of there are little or no assets, is comparasuch a feeling, at a period when so much tively an insignificant item when there is has occurred to shake commercial confi- an estate of magnitude to administer. We dence, is creditable to all parties concerned, have reason to think that the scale of reand affords matter for congratulation and muneration to official assignees is not prejust pride. cisely the same in the courts of any two The high character for probity and commissioners; but we learn from a letter honour previously maintained by the seve- printed for private circulation during the ral parties connected with the houses which present year, and addressed by Mr. Comhave recently fallen under a pressure of missioner Fane to the Secretary of Bankunparalleled severity, explains and ac- rupts, on the remuneration of official counts, perhaps, in some considerable assignees in Bankruptcy, that the average measure, for the different course pursued amount received by the official assignees in their cases, and adopted in other in- in that learned commissioner's court is stances, where men engaged in trade or about 2 per cent.; but when the assets commerce have failed in their engage- to be divided exceed 25,000l., the remuments. We cannot escape from the con- neration is little more than one per cent, an clusion, however, that creditors and debtors amount which can scarcely be considered concur in thinking the affairs of bank- excessive, if the importance of the funcrupt houses of high character better and tions the official assignee is called upon to more advantageously administered by perform be fairly considered. As to the private arrangement than by an arrange- solicitor's bill of costs under a fiat in Bankment effected by law and carried out under ruptcy, it is subjected in every case to a the authority of a fiat in bankruptcy. If all rigid taxation, and usually falls short of concerned in a series of commercial failures, the amount to which a solicitor is entitled by universal consent decline to resort to for his services, when the affairs of a banka tribunal especially established with a view rupt house are wound up under a private

560

Commercial Failures.-Avoidance of the Court of Bankruptcy-New Statutes. arrangement. The charges made by ac- it is expedient further to facilitate proceedings countants for remuneration in such cases under the said recited act in the cases hereinfrequently, we understand, exceed the after mentioned: Be it enacted by the Queen's aggregate amount of the solicitor's bill, and most excellent Majesty, by and with the advice and consent of the Lords spiritual and temporal, the per centage to which the official assig- and Commons, in this present parliament nee would be entitled, if the estate were assembled, and by the authority of the same, administered under the Bankrupt Laws. That where an action, suit, or difference shall The reluctance to force defaulting houses be pending concerning the title of any manor, to the Court of Bankrnptcy, so far as it is land, or right or to an estate or interest therein, founded on an apprehension of the sup- of which the actual owner would, under the posed expenses incidental to that course of definitions of the said act, be (in respect of such manor, land, or right) the person interprocedure, we believe to be ill-considered. ested in land concerning which any application The other grounds of objection to that or proceeding may be made or be pending tribunal are, perhaps, not altogether under the said act, the consent of both the pervisionary. Whilst thus glancing at them, sons between whom such action, suit or differwe should perhaps add, that commercial ence may be pending, to any application, inmen entertain a decided aversion to the pub-closure, or other proceeding under the said act, shall be as effectual as the consent of the actual licity which attends nearly everything that occurs in the Court of Bankruptcy, and estate or interest therein, would have been in case owner of the manor, land, or right, or of such that persons who are so unfortunate as to no action, suit, or difference had been pending. fall into embarrassments, strain every nerve to preserve themselves from what is called the exposure of passing through the court. There is certainly no legitimate reason why an honest man, in any rank of life, who conforms to the law, and submits to the distribution of his effects by a court of competent jurisdiction, should feel that he can be injured by publicity. The prevalence of such a feeling, however, is unquestionable; and we repeat, that the indisposition which debtors and creditors mutually exhibit to avail themselves of the Bankrupt Laws must be ascribed, in a great degree, if not altogether, to the administration of those laws, which is alike unsatisfactory to the commercial and trading community, as to the legal profession.

NEW STATUTES EFFECTING ALTERA-
TIONS IN THE LAW.

COMMONS INCLOSURE.
10 & 11 VICT. c. 111.

An Act to extend the Provisions of the Act for
the Inclosure and Improvement of Commons.
[July 23, 1847.]

2. Provision for the case of more than one person claiming to be interested.-Provided always, and be it enacted, That where, according to the claim of a party to such action, suit, or become interested as aforesaid in respect of difference, more than one person would be or such manor, land, or right, such consent of such number or portion, or (as the case may require) such non-signification of dissent by such number or portion of the persons who would so become interested, to the application, inclosure, or other proceeding as would have been sufficient in case such claim had been of the party so claiming under the provisions of established shall be equivalent to the consent this act.

3. Saving rights of the Crown and others, to the soil of encroachments.-And be it enacted and declared, That where any lands shall have been inclosed, by way of encroachment or otherwise, from any land subject to be inclosed under the said recited act, for more than 20 years next preceding the day of the first meeting for the examination of claims in the matter of an inclosure under the provisions of the said act, and shall not, with such consent as in the said act provided, be directed by the valuer to be considered as allottable, and parcel of the land to be inclosed, neither the award, in the inclosure under the provisions of the said act, nor any consents or orders previous thereto, 1. 8 & 9 Vict. c. 118. Where the title to a shall be taken to divest, defeat, or prejudice manor, &c. is litigated, the consent of both any property, estate, right, or title of her Maclaimants to be equivalent to consent of an actual jesty or of any other person in or to the lands owner. Whereas an act was passed in the ses- so inclosed for 20 years or upwards as afore sion of parliament holden in the 8 & 9 Vict. c. said, or the minerals or substrata under the 118, intituled "An Act to facilitate the In- same, or in or to any rent or payment payable closure and Improvement of Commons and in respect thereof (except only any rights of Lands held in common, the Exchange of common intended to be extinguished by the inLands, and the Division of intermixed Lands; closure under the provisions of the said act). to provide remedies for defective or incomplete 4. Exchanges may be made of land, excepting executions, and for the Non-execution of or reserving minerals and casements.-And be the Powers of general and local Inclosure it enacted, That where an exchange shall be Acts; and to provide for the Revival of made under the said act of lands not subject to such powers in certain cases :" And whereas be inclosed under such act, or of lands subject

New Statutes effecting Alterations in the Law.

561

to be so inclosed as to which no proceedings the 8 & 9 Vict., contained concerning inquiries for an inclosure shall be pending, it shall and as to the expediency or inexpediency of a promay be lawful for the commissioners, in con- posed inclosure; and upon the report of such formity with the terms of the application for assistant commissioner it shall be lawful for the such exchange, to except or reserve out of such commissioners to proceed or to abstain from exchange the property or right of or to all or proceeding on such application, as they may any of the mines or minerals under all or any think fit; and it shall be lawful for the compart of the land given by both or either of the missioners (where they shall so think fit) to parties, together with rights and easements for cause such further meetings to be held, and or auxiliary to the exercise or enjoyment of the inquiries made in relation to such application, right or property of such excepted or reserved or to the report thereupon, as might have been mines and minerals, and (whether such mines held or made in the matter of a proposed inand minerals shall or shall not be reserved) closure, and to give such directions in relation such rights of way and other easements as the to the matter of such application, or to the execuparties to such application may have agreed on. tion of the powers or authorities thereby proposed 5. Recital of provision as to commissioners to be revived or executed, as the circumstances not proceeding to amend any award under any of each case shall appear to them to require. local act, &c. until notice of application shall 6. Lands taken in exchange, &c. in respect of have been given by advertisement, &c. Recited customary lands shall be held to be copyhold, provision repealed, and if commissioners think and shall be held of the same lord, &c.-And fit to proceed on any application, they may refer whereas it is provided by the said act that any the same to an assistant commissioner, &c.—land taken in exchange or on partition or alAnd whereas by the said recited act of the &lotted in respect to copyhold or customary land 9 Vict. c. 118, it is provided, that the commis- shall be deemed copyhold or customary land, sioners shall not in any case proceed to amend and shall be held of the lord of the same manor any award under any local act of inclosure, or under the same rent and by the same customs under the act of the 7 Will. 4, for facilitating and services as the copyhold or customary land the inclosure of open and arable fields in Eng-in respect of which it may have been taken in land and Wales, or to authorize the execution of any power or authority under any such local act which shall have been lost or become incapable of being executed, as therein mentioned, or to authorize any person to be by them appointed as therein mentioned to execute the powers or authorities of any local act, in the place of the commissioner or commissioners appointed under such local act, until notice of the application shall have been given by advertisement as therein mentioned; and that in case, within two calendar months from the publication of the last of the advertisements, onefourth part in number or value of the persons interested, according to the definitions thereinbefore contained, in the land to which the award so proposed to be amended, or the part thereof proposed to be amended, should relate, or in the land to be affected by the exercise of such powers or authorities, should give notice in writing to the commissioners of their dissent from such application, the commissioners shall not proceed further on such application; be it enacted, That the said recited provision be repealed; and that in case the commissioners shall think fit to proceed on any such application as aforesaid the commissioners shall refer such application to an assistant commissioner, and such assistant commissioner shall hold such meeting or meetings to hear any objections which may be made to such application, and any information or evidence which may be offered in relation thereto, or to the matter thereof, and shall report his opinion as to the expediency or inexpediency of proceeding upon such application, having regard to all rights which may be disturbed or affected thereby, in such and in the same manner, and subject to such and the same provisions concerning notices of such meetings, as are in the said act of

exchange or on partition or allotted was or ought to have been held, and shall pass in like manner as the copyhold or customary land in respect whereof such exchanges, partitions, or allotments shall be made: And whereas it is expedient to enable the parties so taking such lands in exchange or on partition or as allotments to hold the same of freehold tenure; be it enacted, That, by and with the consent of the lord of the manor, and of the parties so taking such lands in exchange or on partition or as allotments, it shall and may be lawful for the said commissioners to declare that the same shall be held as of freehold tenure, on such terms and conditions as may be agreed upon between the parties, and as may be deemed just by the said commissioners, and the same land shall be held as freehold accordingly.

7. Meetings may be adjourned without the attendance of commissioner or assistant commissioner.-And be it enacted, That where notice shall have been given of any meeting, whether origina lor by adjournment, to be held by the commissioners or by an assistant commissioner, or otherwise, it shall be lawful for the commissioners or an assistant commissioner by notice to adjourn such meeting, without any commissioner or assistant commissioner giving attendance for the purpose of making such adjournment; and where notice shall have been given of a meeting by a valuer, it shall be lawful for him by notice to adjourn such meeting, without giving attendance for the purpose of making such adjournment.

8. Notices may be given by the secretary of the commissioners, or other person appointed for that purpose. And be it enacted, That all notices by the said act of the 8 & 9 Vict., or by any act amending the same or referring thereto, or by this act, directed or authorized to be given

562 London Small Debts Court.-Law Lectures.-Metropolitan and Prov. Association.

by the commissioners and assistant commissioners respectively, may be given by the secretary of the commissioners, or by any person whom the commissioners or any assistant commissioner, in conformity with the power delegated to him by the commissioners, may appoint or authorize for that purpose.

9. Recited act deemed part of this act.-And be it enacted, That this act shall be taken to be a part of the said recited act of the 8 & 9 Vict., and be construed therewith, and with any act amending the same or referring thereto.

10. Act may be amended, &c.-And be it enacted, that this act may be amended or repealed by any act to be passed in this session.

QUAKERS' AND JEWS' MARRIAGES.
10 & 11 VICT. c. 58.

An Act to remove Doubts as to Quakers' and
Jews' Marriages solemnized before certain
Periods. [July 2, 1847.]

Marriages of Quakers and Jews solemnized before certain dates declared valid.-Whereas doubts have been entertained as to the validity of marriages amongst the people called Quakers and amongst persons professing the Jewish religion, solemnized in England before the 1st day of July 1847, or in Ireland before the 1st day of April 1845, according to the usages of those denominations respectively: And whereas it is expedient to put an end to such doubts; be it therefore declared and enacted by the Queen's most excellent 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, That all marriages so solemnized as aforesaid were and are good in law to all intents and purposes whatsoever, provided that the parties to such marriage were both Quakers, or both persons professing the Jewish religion respectively.

CITY OF LONDON SMALL DEBTS COURT.

JURISDICTION OF THE COUNTY
COURTS.

SUMMONING DEBTORS ON UNSATISFIED
JUDGMENTS BEFORE THE COUNTY COURTS

ACT.

To the Editor of the Legal Observer. SIR, I cannot allow S. H.'s observations upon my answer to Tacitum's inquiry to pass unnoticed. I am aware that the inquiry was simply "whether a creditor who, previous to the passing of the New County Courts Act, obtained a judgment for a debt not exceeding 201., can summon the debtor before a judge of the New County Courts under the 1st sect. of the Small Debts Act, 8 & 9 Vict. c. 127, such court at the time of the passing of the act not being in existence"-with the addition, "Does not the New Act give jurisdiction," and my answer elucidates, by reference to the clauses of the New Act, that such act gives jurisdiction over certain unsatisfied judgements for that the 6th sect. of the act repeals the 8 & 9 Vict. c. 127, and every other act of parliament theretofore passed, so far as the same respectively relate to or affect the jurisdiction and practice of that court, or give jurisdiction to any court, or to any commissioner of the Court of Bankruptcy with respect to judgments or orders obtained in that court; that sect. 7 provides for proceedings commenced previously to the passing of the act; that sect. 98 empowers any party who has obtained an unsatisfied judgment or order in any court held by virtue of that act or under any act repealed by that act for the payment of any debt, &c., to obtain a summons, &c.; and sect. 99 provides for the commitment for frauds, &c. in incurring the debt or liability, which is the subject of the action in which judgment has been obtained, &c. I did not say the jurisdiction of the Commissioners of Bankruptcy was vested, neither did Tacitum inquire if it were, but merely if the New Act gave jurisdiction in the matter of his inquiry as before set forth, and my answer elucidated that to a certain extent it did.

THIS Court, established or enlarged by 10 & 11 Vict. c. lxxi., was opened on October 12, by Mr. Commissioner Bullock, as the judge of The inquiry of Tacitum may be more simply the Sheriffs' Court sitting in the Court of answered, (if required), but not more correctly Queen's Bench, Guildhall. According to the present arrangement, the Sittings will be held on Tuesday in each week. The new rules are not yet published, but it is expected they will be nearly the same as those in the New County Courts. They are to be settled and approved by the judges of the Superior Courts.

See the Act, p. 471, and Schedules, 504, ante.

LECTURES AT THE INCORPORATED
LAW SOCIETY.

so, by saying that the New Act gives jurisdiction in all cases where the judgment has been obtained in any court held by virtue of that act or under any act repealed by that act, but in no

other.

Birmingham.

T.

METROPOLITAN AND PROVINCIAL
LAW ASSOCIATION.

As the Term is approaching and the time will soon arrive when the Committee of this THESE Lectures will commence on Monday, Association will meet and deliberate on the the 1st November, and be continued every measures to be taken in furtherance of the obMonday and Friday, at 8 o'clock precisely. Mr. jects of the Association, we recommend such Miller will lecture on Equity and Bankruptcy; of our readers as have delayed sending in their Mr. Maynard on Common Law and Criminal names during the Long Vacation, at once to Law; and Mr. Nalder on Conveyancing. enrol themselves. It will be well to fortify the