Page images
PDF
EPUB

personal attendance, creditors in the country may prove by affidavit (2 Law Stud. Mag. N: S. p. 4). Debts may be proved at the two public meetings appointed by the commissioners for the bankrupt to surrender and conform, or at any adjourned meeting, and likewise at every other meeting appointed by them for proof of debts, whereof ten days' notice shall have been given in the Gazette. The proof may also be made at any dividend meeting, and likewise at a meeting called at the creditors' expense for such proof. By sec. 28 of the Consolidation Act, the commissioner may direct a registrar to take proof of debt (12 & 13 Vic. c. 106, s. 164; Mont. and Ayrt. Bankr. Prac. c. 12, s, 1). To entitle a creditor to a dividend, or even to prove, he must give up any securities he may hold, given by the bankrupt alone, or must first realise them, if so entitled, and prove for the residue.

XII. Distinction between mortgages of land and of personal property.-The only distinction we are aware of, so far as the question is concerned, is relative to the doctrine of reputed ownership, which does not apply to real estate, but does to personal property; in reference to the latter of which we may observe, that although a mortgage of chattels personal made bona fide and for a valuable consideration, but the possession of which is retained by the assignor, will be valid against creditors under the 13 Eliz. c. 5, if it can be shown that the possession is consistent with the nature of the transaction, so h at the presumption of fraud raised by the possession is rebutted, yet it may be void under the bankruptcy statutes as against the assignees of the bankrupt continuing to be the reputed owner, unless it can be shown that possession has been given as far as circumstances would permit (Coote's Mortgages, 243, 3rd edit.; Halker v. Burnell, Doug. 317; Load v. Green, 15 Mees and W. 216; Gale v. Lewis, 16 Law Journ. Q. B. 119).

XIII.-Leave to bring action, suit, &c.-Before commencing an action or suit, or referring to arbitration, the assignees should, for their own security, obtain the leave of the commissioner; but such leave is not indispensable (3 Law Chron. p. 397; alter Key, "Bankruptcy," p. 62, which was framed under the supposition that the language of the statute had effected an alteration in the practice).

XIV. Reputed ownership.-In order that goods should be in the possession, order, or disposition of a bankrupt, &c., within the 12 & 13 Vic. c. 106, s. 125 (which enacts that, "if any bankrupt at the time he becomes bankrupt shall, by the consent and permission of the true owner thereof, have in his possession, order, or disposition any goods or chattels whereof he was reputed owner, or whereof he had taken upon him the sole alteration or disposition as owner,

the court [the commissioner] shall have power to order the same to be sold and disposed of for the benefit of the creditors under the bankruptcy "), two things are required-first, they must be in his possession under such circumstances as to render him reputed owner of the goods; secondly, they must have been left in his possession through some impropriety or laches of the true owner, under circumstances calculated to enable the bankrupt to obtain a false credit by inducing the world to look on him as the true owner (in accordance with the judgment of Lord Redesdale in Joy v. Campbell, 1 Sch. and Lef. 328). The question whether goods are in the possession, order, and disposition of a bankrupt may depend on the usage of some particular trade, which may vary at different times and places. When property is left by the true owner in a shop where goods are notoriously left by parties for other purposes than for sale (as clocks with a clockmaker), the proprietor of the shop is not a reputed owner of them within that statute (Hamilton v. Bell, 18 Jur. 1109; see also 1 Chron. pp. 63, 76, 132, 384, 441, 458; 2 Id. 58; 3 Id. 17, 37, 187, 333, 892).

XV. Composition.-A bankruptcy opened may be stayed after the bankrupt has passed his last examination, if nine-tenths in number and value of the creditors assembled at two advertised meetings will agree to accept a composition. Upon the acceptance of such offer being testified to the court in writing, it may annul the adjudication, and dismiss the petition for adjudication. All the creditors are bound to accept the agreed composition (12 & 13 Vic. c. 106, s. 230). There is no other jurisdiction to annul with consent of creditors, but if every creditor consents, such an order will be made quantum valeat (exp. Luxford, 1 Fonbl. N. R. 261; exp. Harris, Id. 262).

CRIMINAL LAW (ante, p. 6).

I. Criminal courts-Supreme coroner.-The only one of the superior courts at Westminster having jurisdiction in criminal matters is the Court of Queen's Bench (4 Bl. Com. 265; first book, 467, 468). The Chief Justice of the Queen's Bench is the supreme coroner of the realm (4 Steph. Com. 355, 2nd edit.; Key, "Crim. Law,” 2).

II. Central Criminal Court.-By the 4 & 5 Will. 4, c. 36, a new court was established for the trial of offences in London, Middlesex, and certain suburban parts of Essex, Kent, and Surrey, to be called the Central Criminal Court. And it is provided (s. 2), that the Crown may issue its commission of oyer and terminer, and gaol delivery to such court, and that the judges of the court (which include the Lord Mayor of London, the judge of the Admiralty, the common law judges, and certain others), or any two

or more of them, shall hold a session for London and Middlesex, and the parts of Essex, Kent, and Surrey, before mentioned, in the City of London or suburbs thereof, at least twelve times in every year (and oftener if need be), such times to be fixed by general orders of the said court, which any eight or more of the said judges of the courts of Westminster are empowered from time to time to make (see the 14 & 15 Vic. c. 55, s. 13, repealing prohibition in 4 & 5 Will. 4, c. 36, as to trial of offences at sessions within jurisdiction of Central Criminal Court).

III. Quarter sessions, jurisdiction.-The quarter sessions had jurisdiction to try all felonies and all misdemeanors, except perjury and forgery, at the common law; but in capital felonies it was not usual to proceed at the sessions, And now, by the 5 & 6 Vic. c. 38, s. 31, neither the justices of the peace acting in and for any county, riding, &c., nor the recorder of any borough, shall, at the session of the peace, try any person or persons for any treason, murder, or capital felony, or for any felony which, when committed by a person not previously convicted of felony, is punishable by transportation beyond the seas for life, or for any of the following offences:-1. Misprision of treason. 2. Offences against the Queen's title, &c., or against either House of Parliament. 3. Offences subject to the penalties of præmunire. 4. Blasphemy, and offences against religion. 5. Administering or taking unlawful oaths. 6. Perjury, or subornation of perjury. 7. Making, or surborning any other person to make, a false oath, affirmation, or declaration, punishable as perjury, or as a misdemeanor. 8. Forgery. 9. Unlawfully and maliciously setting fire to crops of corn, grain, or pulse, or to any part of a wood, coppice, or plantation of trees, or to any heath, gorze, furze, or fern. 10. Bigamy, and offences against the laws relating to marriage. 11. Abduction of women and girls. 12. Endeavouring to conceal the birth of a child. 13. Offences against any provision of the laws relating to bankrupts and insolvents. 14. Composing, printing, or publishing blasphemous, seditious, or defamatory libels. 15. Bribery. 16. Unlawful combinations and conspiracies, except over which such justice or recorder respectively have or has jurisdiction to try, when committed by one person. 17. Stealing, or fraudulently taking, or injuring, or destroying records or documents belonging to any court of law or equity, or relating to any proceeding therein. 18. Stealing, or fraudulently destroying or concealing, any wills or testamentary papers, or any document or written instrument being, or containing, evidence of the title to any real estate, or any interest in lands, &c. Some other statutes also provide that the offences to which they relate shall not be tried at the session.

IV. Petty sessions, jurisdiction.-Courts of petty, or petit, sessions are formed by the periodical, as well as occasional meetings of the justices of the peace, acting within certain divisions or districts, into which every county is divided; and also of those appointed for certain boroughs. And the court of petty sessions thus formed is also called a bench of magistrates. County magistrates generally hold their courts of petty sessions at the most important or central town of the division, either at one of the principal inns, or at the town-hall, if there should happen to be one. But a petty session may be held by any two justices on their mere private agreement, for the purpose of acting either ministerially or judicially in any cases within their authority. The subjects usually brought before petty sessions are either of a strictly criminal nature or of a quasi civel nature. The former sort are those which in most cases a single magistrate is competent to adjudicate on, but it is thought advisable not to act alone; of the latter sort are the recovery of servants' wages, and other proceedings relative to servants; the recovery of parochial rates and tithes; appeals against poor rates; the removal of paupers; proceedings in bastardy; recovery of possession of deserted premises, and in the cases of fraudulent removals to avoid distresses; ale-house licences, and proceedings as to highways and turnpike roads, &c.

V. Indictable offences, division-Civil injuries.Indictable offences or crimes are usually divided into misdemeanors and felonies (see Key "Crim. Law," p. 14; 4 Steph. Com. 57). Crimes and misdemeanors differ from civil injuries inasmuch as they concern the community at large, and the offence is one not against a private right merely, but against society in its aggregate capacity. A civil injury is a wrong against an individual considered merely as such (4 Steph. Com. 80, 2nd edit.).

VI. Felony.-Felony is a generic term, comprising thereunder petit treason (before its abolition, and, indeed, anciently even high treason, Co. Litt. 391 a; 4 Black. Com. 94), homicide (including thereunder murder, manslaughter, death by chance, se defendendo, or for justifiable cause, Com. Dig. tit. "Justices," M. 1), burglary, robbery, arson, rape, and larceny (Co. Litt. 391 a). But felony has a. more restricted meaning, and, as distinguished from a misdemeanor, may be stated as a crime which induces a forfeiture and a punishment (though not necessarily a capital one) of a high degree (see hereon 4 Steph. Com. 57–61, 1st edit.). A misdemeanor is a crime not amounting to a felony. The term "misdemeanor" is, indeed, properly speaking, synonymous with that of "crime," though in common usage it is used to denote such crimes as do not

amount to felonies (4 Steph. Com. 57, 131, 1st edit.).

VII. Perjury at Common Law.-Perjury at the common law is the crime of false swearing which arises when a lawful oath is administered in some judicial proceeding to a person who swears wilfully, absolutely, and falsely, in a matter material to the issue or point in question (4 Black. Com. 137; Key, "Crim. Law," 49).

VIII. Perjury, witnesses.-In order to obtain a conviction for perjury, two witnesses are necessary (4 Black. Com. 358; Archb. Crim. Plead. and Evid. 155, 568, 8th edit.). However, it will be sufficient that the perjury be directly proved by one witness, and corroborative evidence on some particular point be given by another (vide R. v. Mayhew, 6 Car. and P. 315; R. v. Yates, ib. 132 ; R. v. Parker, 1 Car. and M. 639; Reg. v. Roberts, 2 Car. and Kirw. 607); and where the alleged perjury consists in the defendant's having contradicted what he himself swore on a former occasion, the testimony of a single witness in support of the defendant's own original statement will support a conviction (R. v. Harris, 5 B. and Ald. 929; but see contra, Reg. v. Wheatland, 8 Car. and Pay. 238, per Gurney, B.).

IX. Perjury, subornation.—Subornation of perjury is the offence of procuring another to take such a false oath as constitutes perjury in the principal. The oath must be actually taken, otherwise the person inciting thereto is not guilty of subornation of perjury (1 Hawk. Pl. C. c. 69, s. 10; 4 Bl. Com. 138).

X. Proceedings prior to trial.—The first proceeding against a person accused of an offence in order to bring him to trial is to summon, or in serious cases to arrest the party and bring him before a justice; the party is then either discharged or remanded from time to time for any period not exceeding eight days, or committed for trial, in which latter case he is committed to prison or discharged on bail, and the parties are bound over to prosecute. The bailment and depositions are then certified to the proper officer (11 & 12 Vic. c. 42; 3 Law Chron. 394). The following is a condensed statement by Mr. Oke of the various steps in the procedure on the preliminary inquiry:-1. Prosecutor's attorney to open case. 2. Depositions of prosecutor's witnesses taken. 3. Accused invited, at the close of each witness's examination, to put questions to the witness, such cross-examination being distinguished in the deposition from the examination in chief. 4. When case for prosecution completed, depositions read over to and signed by the witnesses. 5. Attorney of accused to address the bench if case for prosecution completed; or, if

not completed and remand intended, to state his objection to a remand. 6. If evidence insufficient, accused discharged. 7. If evidence incomplete, accused remanded or bailed till a future day. 8. If evidence sufficient and case completed, depositions read, and magistrate's clerk to inform the accused of the precise legal charge against him. 9. Justice to caution accused as required by s. 18. 10. Accused's statement to be taken down and read over to him. 11. Accused's witnesses (if any) heard, and their depositions taken. 12. If accused calls witnesses, prosecutor's attorney to cross-examine them. 13. Committal of accused for trial, or bailing or consenting to bail him; if two or more charges preferred. 14. Binding over parties to prosecute. 15. Allowing expenses of witnesses. Then, or instead of these proceedings (which course, however, is not generally approved), the prosecutor may prefer his bill before the grand jury. If the bill be found, the party is called on to plead, which he does, and is then tried, unless under the 14 & 15 Vic. c. 100, s. 27, the trial is adjourned to a subsequent session.

XI. Bail, felony, justices.—One justice may admit to bail persons accused of felony (11 & 12 Vic. c. 42, s. 23; Key, “Criminal Law,” 85, 86; 3 Law Chron. 194, 394).

XII. Bail, Queen's Bench, judge in vacation.-The Queen's Bench, or a judge in vacation, may admit a prisoner to bail in cases where a magistrate having power declines to exercise it, or where he has no power, as in treason (4 Steph. Com. 395, 2nd edit. ; 11 & 12 Vic. c. 42; Key, "Crim. Law," 86, 87).

XIII. Indictment, nature, preferring, materialparts. -An indictment is a written accusation at the suit of the Queen against a party of some crime or misdemeanor, presented on oath by a grand jury, and upon which, if found by them, the party is eventually tried (4 Steph. Com. 398; First Book, 424). A party may be tried on an indictment founded on a coroner's inquisition without a finding by a grand jury (2 Hale, 61; 1 Salk. 382). The following are the usual parts of an indictment (though, by some recent statutes hereafter noticed, defects may be amended, and some of the enumerated particulars are not essentially necessary):--1. A proper venue, in the margin, and even in the body, where local description necessary (14 & 15 Vic. c. 100, s. 23). 2. Certainty in the name and description of the party indicted, and of the party against whom the offence was committed: also, as to time and place, and the facts. 3. The offence must be properly and technically described. 4. The value of the thing which is the subject or instrument of the offence must sometimes be expressed; but in general this is now unnecessary (see First Book, 424, 425; 3 Law

Chron. 395). 5. The indictment must have a proper conclusion; but a want of this is not now fatal, by s. 24, of the 14 & 15 Vic. c. 100, which also cures other defects in indictments, particularly as to names places, and times, &c. (see 1 Chit. Crim. Law, 169— 304; 4 Steph. Com. 374-377).

XIV. Criminal information.—A criminal information is a mode of proceeding in respect of a misdemeanor upon leave first obtained from the Court of Queen's Bench, and no finding by a grand jury is requisite (see 4 Steph. Com. 409, 412, 2nd edit.; 4 Bacon's Abr. 402, et seq., 7th edit.).

XV. Criminal information, conditions.-By the 4 & 5 Will. and Mary, c. 18, it is required that every prosecutor, who is permitted to promote such an information, shall give security by a recognisance of £20, to prosecute the same with effect, and also to pay costs to the defendant in case he shall be acquitted, unless the judge who tries the information shall certify that there was reasonable cause for filing it. In addition, the prosecutor waives his civil action (2 Burr. 719; 11 Jur. 377).

NEW COMMON LAW RULES. EASTER TERM.

Indorsement of notice on writs on contract-Entry of satisfaction on judgments.

We find we omitted to notice the common law rules of Easter Term last, with respect to the indorsement of notice on writs of summons where the debt is under £20, to entitle the plaintiff to apply for costs where judgment is signed by default, and as to the entry of satisfaction on judgments. The former one is of general practical importance, and should be attended to by practitioners, and the examiners will doubtless soon call the attention of articled clerks to it.

Indorsement of Notice on Writs on Contract. It is ordered that plaintiffs suing in contract for £20 or less may, if they claim costs, indorse on the writ of summons the following notice :

"Take notice, that if judgment be signed for default of appearance, the plaintiff will, without summons, apply to a judge for his costs of suit, unless before such judgment you shall give notice to him or his attorney that you intend to oppose such application."

And it is further ordered that, if the defendant give such notice, the plaintiff shall proceed by summons and order. But if the defendant give no such notice, the plaintiff may produce such indorsement to a judge at chambers for an order for costs exparte; and if the judge shall sign his name to the indorsement, such signature shall be an order for costs, and the Master may tax them thereon, accordingly. In

case of any application for costs without such indorsement, the plaintiff shall not be entitled to more costs than if he had made such indorsement, unless a judge shall otherwise order.

Entry of Satisfaction on Judgments.

Upon a satisfaction piece, duly signed and attested, in accordance with the 80th rule of Hilary Term, 1853, being presented to the Clerk of the Judgments of the Masters in the court in which the judgment has been signed, he shall file the same, and enter satisfaction in the judgment-book against the entry of the said judgment; and no roll shall be required to be carried in for the purpose of entering satisfaction on a judgment.

[blocks in formation]

of time, effect of — Laches—Demurrer—Right to account and to administration of fund, distinction between -Presumption of assets and of due administration.— The rule laid down in Pickering v. Lord Stamford (2 Ves. Jun. 272, 581), is perfectly consistent with the principle of the Statute of Limitations, and the doctrine of laches in the Court of Chancery. If a trustee says he has a trust-fund in his hands, then he is within the principle which is laid down in the Statute of Limitations as to fand held upon trust, as to which it is never too late to raise the question until there has been an alienation for value. So it is never too late to come, with respect to a trust-fund which a person admits having in his hands. But it has been held in the following case, that lapse of time will bar the right of the next of kin of an intestate to an account against the administrator. There is a distinction between the right to an account and the right to the administration of a fund admitted to be in hand. In the absence of any averment in the bill, the court will not, upon demurrer, assume that assets have come to the hands of an administrator without assuming also that they have been duly administered. Kohler v. Reynolds, 26 Law Journ. Ch. 415.

APPORTIONMENT.-Rent [vol. 3, p. 389]— 4 & 5 Wm. 4, c. 22-Interest not determinable by death -Tenant for life with reversion in fee.-By the 4 & 5 Will. 4, c. 22, s. 2, it is enacted, "that on the death of any person interested in any such rents, annuities, pensions, dividends, moduses, compositions, or other payments, as aforesaid, or in the estate, fund, office, or benefice from or in respect of which the same shall be issuing or derived, or on the determination by any other means whatsoever of the interest of any such person, he or she, and his

or her executors, administrators, or assigns shall be entitled to a proportion of such rents." On this provision, Wigram, V. C., in the case of Brown v. Amyot (3 Hare, 173), said that it appeared to him that the death of the person interested-the event on which the apportionment was to take place-must be understood as a death occasioning the determination of the interest, and that this was the necessary effect of the immediate context-" determination by any other means." This case has been acted on in the following decision:-Under the will of A. B., which contained limitations to several tenants for life in succession, with a reversion to the right heirs of A. B., C. D. became tenant for life, with the immediate reversion in fee expectant upon his death without issue. C. D. died without leaving issue: Held, following Brown v. Amyot (3 Hare, 173), that the interest of C. D. not having determined by his death, the statute 4 & 5 Wm. 4, c. 22, was not applicable, and that the rent accrued due after his death went to his real representatives, without apportionment. Re Clulow, 5 Week. Rep. 544.

DISCOVERY [vol. 3, p. 297].-Where compulsory reference under the Common Law Procedure Act [vol. 3, pp. 22, 225, 386]-Demurrer-Distinction between compulsory and voluntary arbitration.— By the 3rd section of the Common Law Procedure Act (17 & 18 Vic. c. 125) it is provided that, “if it be made appear, at any time after the issuing of the writ, to the satisfaction of the court, or a judge upon the application of either party, that the matter in dispute consists wholly or in part of matters of mere account, which cannot conveniently be tried in the ordinary way, it shall be lawful for such court or judge, upon such application, if they or he think fit, to decide such matter in a summary manner, or to order that such matter, either wholly or in part, be referred to an arbitrator appointed by the parties, or to an officer of the court, or, in country causes, to the judge of any county court upon such terms, as to costs and otherwise, as such court or judge shall think reasonable; and the decision or order of such court or judge, or the award or certificate of such referee, shall be enforceable by the same process as the finding of a jury upon the matter referred." A company employed persons to build a ship, and from time to time made them payments. When the ship was built, the company, asserting that the builders had been overpaid, brought an action to recover the money which they alleged they had paid in excess, and by mistake. The court in which the action was brought directed, under the Common Law Procedure Act, that, as to certain questions between the parties, a special case should be prepared, and that, as to items in dispute, a compulsory arbitration should decide it. The company filed a

bill of discovery, in aid of their case, before the arbitrator. Upon demurrer: Held, that the general principles of equity relating to discovery, applicable to arbitrations, did not apply to a compulsory arbitration, which was to be deemed a mere delegation of the powers of the superior court, and, as such, entitled to be aided by discovery. British Empire Shipping Company (Limited) v. Somes, 29 Law Tim. Rep. 178.

INFANT [vol. 1, pp. 9, 342].-MaintenanceApprentice fee-Trustee-Contingent interest-Right to retain.-Where a trustee, or even a stranger, makes an advance for the preferment of an infant presumptively entitled to a fund, upon an understanding as to the latter that he is to be repaid out of the fund on its becoming vested, a court of equity will, if it considers the advance bonâ fide and advantageous, order it to be paid. A. B., after his brother's bankruptcy, took the brother's children into his family, and maintained them, after A. B.'s decease: Held, that his widow and executrix could not retain the sums expended for maintenance out of a legacy given to the children by their grandfather: Held, also, that she could retain the premium paid by A. B. to apprentice one of his nephews out of the legacy to which, at the time the premium was paid, the nephew was contingently entitled. Worthington v. M'Craw, 26 L. J. 286, C. LEGACY.-Alienution-Restriction-Bankruptcy,

on declaration of insolvency signed by the legatee.— A legacy given "without power in any way of anticipation," and given over "in case the legatee should assign mortgage, or in any manner anticipate the same, or attempt or agree so to do, or otherwise anticipate the same," is not forfeited by an offer to make it a security, or by a subsequent bankruptcy, or by any act unless strictly within the clause of forfeiture. The bankruptcy was founded on a declaration of insolvency signed by the legatee, and it was held that the bankruptcy must be treated as in invitum, and not within the conditions of forfeiture. Graham v. Lee, 26 Law Journ. Ch. 395; 3 Jur. N. S. 550; 3 Law Chron. 314.

MORTGAGE.-Notice-Priority-Solicitor dealing with client [vol. 3, pp. 255, 311].-As to the doctrines of courts of equity in dealings between solicitors and their clients, see vol. 3, p. 311. As to the neglect by a mortgagee to take the deeds from a mortgagor, Hewitt v. Loosemore (9 Hare, 449) is an important decision. It was there decided that a court of equity will not impute gross negligence to a man who makes inquiry for an absent deed, and receives a plausible answer to account for its absence. This does not, however, apply to a case where no inquiry at all is made. A mortgagee deposits his mortgage deed with A. to secure a debt, and afterwards deposits a

I

« PreviousContinue »