New Bills in Parliament.

424

New Bills in Parliament.-State of Law Reform.

LAW OF FORFEITURE.

This is entitled, a Bill "to amend the Law of Forfeiture as regards the Goods, Chattels, and Personal Estate and Property of Persons convicted of Felony, and to provide for the disposal of such Property under certain cir

cumstances."

The enactments are as follow; some of which, being of more general importance than the rest, are given fully:

1. A conviction for felony not to cause the immediate forfeiture of the property.

months from the time of the conviction of the felon, then the goods, &c. or the residue thereof, after such disposal shall have been made and such order of the Court shall have been paid and satisfied, shall become forfeit, and shall pass and thenceforward belong to the person or persons to whom the same would have passed if the convict had died intestate on the day of his conviction, according to the law now in force for that purpose.

9. Act to apply to both male and female convicts.

STATE OF LAW REFORM.

2. The Court, before any convicted felon has been convicted, may order, out of the We have, from time to time, brought to personal estate or property of the convict, full and fair costs and compensation to the person state of Law Reform, and the various prothe notice of our readers, the progress and on whose prosecution such felon has been convicted, and to such of the witnesses as to the jected changes and improvements included Court shall seem meet; and also out of the in that comprehensive subject. We have property, such maintenance for the family of received a pamphlet entitled A Protest the convict, while he is detained in execution against the Reform Ministry and the Reor under sentence, as to the Court shall seem formed Parliament, by an Opposition Memmeet; and also order the costs of the main

tenance and other necessary expenses of the felon while imprisoned, in execution or under sentence, for the purposes of all which orders the Court may order the sheriff, bailiff, or other officer of the county, city, borough, or place where the felon shall have been convicted, forthwith to seize the property, or so much thereof as the Court shall deem necessary; and the sheriff, &c. shall proceed by sale, or otherwise as directed by the Court, to carry the orders into full effect; and all the personal estate and property of the convict which shall not be disposed of by the order of the Court, shall continue the property of the felon, for the purposes after mentioned.

Provided, that in the case of such goods and chattels of convicted felons as have been brought before such Court, on the trial of the felon, the Court, if it shall think fit, may then and there make such order respecting the same for any of the purposes aforesaid, as to the Court shall seem meet.

ber," (published by Wilson)—which gives, amongst various political topics that we pass by as beside our purpose, the following review of the measures in contemplation relating to the law.

The Writer sets out in the legal part of his pamphlet with a general notice of the subject. He says

"There can be no hesitation in at once admitting that there were a number of useful important acts passed during the last session for reforms in the law. The only question is, how far we are indebted for them to the "Reform Ministry," or the "Reformed Parliament?" This, then, may at once be answered by the fact, that they were almost all in pursuance of the recommendations made by the Law Commissioners who were appointed by former Governments. Of those Commissioners, the present Solicitor General [Sir John Campbell, now the Attorney General,] was one; and he, in acting upon those recommendations, has proved himself an honest member of the legislature, as well as a useful public officer. They were passed, for the most part, sub silenother-tio, and had long been called for by the profession, as well as by the public. It is very easy for the Ministerialists to take credit to themselves for these measures, but the better informed can only look on their impudence in so doing with disgust. The measures that were not theirs were acceded to, as being deserving of adoption,-those that were entirely their own, were as deservedly rejected."

3. Sheriffs seizing, to make a true return of all property.

4. Felons under sentence may acquire real or personal property.

5. Felons not to dispose of property wise than is directed by the act.

6. Felons may be sued.

7. The felon may execute any deed of conveyance, assignment, or other instrument conveying his goods, chattels, or property, to his creditor, which the Court before which such action has been brought shall order; and such deed, &c. shall be binding on all parties thereto, notwithstanding the felon's conviction or attainder.

8. In all cases where a disposal of the goods or personal property of the felon, for any of the purposes aforesaid, or under any order of Court, has not been made within twelve

The Pamphleteer next enters on the General Register question. This Bill, he says, was intended

all the property of the kingdom under the "To place all the title deeds, and therefore

State of Law Reform.

425

Of the Lord Chancellor's merits in abo

lishing Sinecure Offices, the author says

power of the government, in one monstrous ought not altogether to be taken away. It is to mausoleum in the metropolis-a proposition, be hoped, that the Solicitor [Attorney] General which, however suited for Scotland or Ireland, will modify the proposition, by providing that was absurd to think of for a large country like the plaintiff shall shew to some responsible offiEngland. Such an institution may be suitable cer of the Court, sufficient cause for the arrest, for a small state, but could not possibly be before it shall be allowed, without giving up expected to be found practicable in a large the right of obtaining proper securities, now one. Had the ministers proposed to establish enjoyed by the creditor." registry, offices in different districts, upon the plan of those long established in Yorkshire, few gentlemen could be found to have made any objection. The Yorkshire offices, instead of requiring the full title deeds of the owners, require only a memorial of their nature, with the names of the parties, quite sufficient to guard a purchaser against fraud, without enabling any party to become acquainted with facts for improper purposes. Mr. Cayley has given notice of a motion for the next session, to adopt this plan throughout the country; but the ministry, no doubt, will, in the usual spirit of official little-mindedness, anticipate him by making this concession to the country gentlemen who threw out the former bill. If they do not, if they equal their former folly of bringing in such a bill, by introducing it again, they may expect the same results."

"One who had declaimed against those very offices, as the Lord Chancellor had done when not in power, has a right to but little applause for afterwards putting his professions into practice; and his lordship must be ashamed of many of the commendations lavished on him by the penny trumpeters,' for the commonest acts of honesty he has committed. He can well spare them; and if he has actually gone in his reforms beyond what Lord Lyndhurst and Sir E. Sugden would have done, he would be foremost, with that degree of humility peculiar to great minds, to acknowledge that he had only done what was due to his own character for consistency, and according to the duties of his station. But, let us not forget The subject of Local Courts is then taken what is due to Lord Lyndhurst in the reforms he contemplated, as well as to Sir E. Sugden. up, and the remarks on the Lord Chancel-Than the latter, no one can enjoy a higher

lor's Bill are as follow:

"It was a half Scotch, half Dutch device, and would have been an anomalous graft on our system of judicature. It is a marvel how the whole profession of the bar did not rise up in opposition to it, as tending to the degradation of their "order." Had it succeeded in its object, the result of making independent jurisdictions in different districts must have been to create different systems of law, as well as of practice. Even now, with all our care, we find too often, that the law of the Common Pleas is not that of the King's Bench, and it would have been the tendency of this bill to create as many varieties as there were Courts. "In this respect also, we believe a rival bill to the Lord Chancellor's will be proposed, to give the Quarter Sessions the power of trying civil cases to a certain amount, the processes emanating, as at present, from the Courts at Westminster, and the records to be sent to the Sessions instead of to the Assizes. Thus, the advantages of a bar, metropolitan as well as provincial, would be secured, with a uniformity in legal proceedings, and the public would be put to little additional inconvenience in the attendance of jurors, attornies, constables, and witnesses."

Imprisonment for debt is the topic next considered, on which the Writer says

Against this, it is somewhat surprising that some active steps were not taken by the different classes whose interests it would so materially affect. Improvement, however much wanted in our judicial proceedings, is not always synonymous with change; and though the power of arrest is liable to great abuse, and is sometimes productive of great mischief, it

character as an advocate and lawyer; and the Chief Baron is universally acknowledged by the profession as the first Equity Judge on the bench, as well as the most eminent in the Courts of Common Law. His character has raised the long-sunken Court of Exchequer to an overflow of business, as is observable from the circumstance, that, during the last year, 47,000 writs were issued from that Court, and only 36,000 in the Court of King's Bench On the Equity side of the Exchequer, it is said, the result is still greater."

ན ་

The old grievance of the Bankruptcy Court is briefly touched, in the following manner :

Nothing could be more a burlesque on Courts of Justice, than those held in the 'good old times' by the Commissioners of Bankrupts. These gentlemen, seventy in number, were so ill remunerated, that they could only compensate themselves for their services, by holding generally two or three, and sometimes five or six meetings, under different commissions, at once. The noise and confusion were ludicrous, and could only be equalled by the bustling activity of the Commissioners, snatching up and dividing the fees, which they did with all the eagerness of a little chandler over his counter on a Saturday night. Nothing, it might be supposed, to rival such a Court could be invented; but the Lord Chancellor did it in his Court of Review, the very name of which, to say nothing of its decisions, raises shouts of laughter in every cranny of Westminster Hall. Even its very subordinates, the Commissioners, dispute its dictates; and the poor Court of Review is evidently doomed to end in one for the relief of insolvent debtors."

426

Superior Courts: Lord Chancellor.

On the project of separating the judicial | sioner at the former examination were, by defrom the political functions of the Lord sire of his counsel and of the Court, ́read Chancellor, our Opposition Member aloud to the witness by the deputy registrar, protests that-

"

and Mr. Commissioner Evans then said to him, "You have now heard your examination and "Nothing more will be wanted to accom- answers read over to you: have you any thing plish the utter degradation of the bar; and it to add further, or to explain, or any observais to be hoped, that a determined opposition tion to make?" To which the witness replied, will yet be made. This self-acknowledged in-"No; but I am ready to answer any question efficiency of the present Chancellor to the full performance of his duties may be a very good reason for his retirement, but none at all for inflicting such a blow on the profession. Other Eldons and Lyndhursts may be found, and subordinate Judges and Courts of Review may be appointed; and surely many measures might be devised better than the present scheme of running into a certain great public evil to avoid an occasional or possible inconvenience to individuals."

SUPERIOR COURTS.

Lord Chancellor's Court. BANKRUPTCY.-COMMITMENT OF A WITNESS. The only way to judge of the legality of a commitment of a witness by commissioners in bankruptcy, is to look at the whole exa

mination.

put to me by the Court." The same commissioner asked the witness again, if he wished to add to, explain, or correct any part of his evidence, and the witness replied as before. The Commissioner then said, "I understand you to abide by these examinations." The witness said, “I do;" upon which the Subdivision Court committed him to Newgate, from which he was brought up by habeas corpus to this Court on the 15th, and prayed to be discharged. Counsel were heard in his behalf, and on behalf of the assignees of the bankrupt, in oppo

There are many other topics in the Pam-sition to his discharge. phlet, which have a professional bearing-consider his judgment, after stating the facts, The Lord Chancellor having taken time to such as the Poor Laws, the Tithe System, and the previous proceedings as above, said: and Corporations - but they are treated of The warrant of commitment recited that he with too much brevity to be usefully exwas charged with having been concerned in tracted. the removal of the bankrupt's goods, under a colorable sale, and he was committed for not giving satisfactory answers to questions put to him touching the removal of the goods. By the act 6 G. 4, c. 16, §§ 33 and 34, it is within the power of the Commissioners to summon before them any person known or suspected to have any of the bankrupt's property in his possession, or who is supposed by the commissioners to be capable of giving information concerning the dealings of the bankrupt, or in any way material to the full disclosure thereof; and the Commissioners have power to require such person to produce any books or writings in his possession, which may be necessary to the disclosure of any of the matters into which the Commissioners are authorized to inquire. The Commissioners are also empowered to authorize, by their warrant, their messenger to arrest such person, so summoned, and bring him before them; and if such person shall reA Subdivision Court, before they commit a fuse to answer any such question put to him witness, should take him through the whole by the Commissioners, or shall not answer to of the examination, and not take it on re- their satisfaction, they may commit him to priport of the single commissioner: the want son until he shall submit himself. In the of that precaution is sufficient ground for present case, the language used to the prisoner his discharge. by the Commissioner before whom he was twice examined and who, in these examinations, John Jaques Bardswell was summoned be- acted with the greatest care and proprietyfore Mr. Commissioner Holroyd, and was ex-was not detrimental, but rather useful to the amined on the 5th and 11th of February in-prisoner, as giving him a knowledge of the stant, touching the removal of some of the charge against him. If precedents were wantgoods and effects of the bankrupt just before ing as to the exercise of the power of the Comthe fint was issued against him. The commis-missioners, derived from the above sections, sioner, deeming the answers of the witness un- they were at hand; and, amongst the many, satisfactory, committed him to the custody of was that of Ex parte Vogel. There is therethe messenger on the 11th. He was brought fore no doubt of the power of the Commissionup on the 12th before a Subdivision Court, ers. The next objection to the commitment consisting of Commissioners Evans, Fonblanque, and Holroyd, for the purpose of being re-examined, and was then attended by counsel. The depositions taken before the single commis

If the whole examination is set forth in the warrant, the questions, the answers to which are unsatisfactory, need not be particularized.

a 2 Barn. & Ald. 219.

Superior Courts: Lord Chancellor; Rolls.

427

is, that the warrant does not shew on what points the answers of the prisoner were unsatisfactory. It is undeniable that the warrant should set forth the grounds on which the answers are unsatisfactory, and on which the witness is committed. The act of 6 G. 4, c. 16b, as well as the 5 G. 2, c. 30c, which is reenacted by it in this respect, requires the Commissioners to specify in the warrant every question, for not answering which the party is committed; and that is required, as the act states, so as that the Court or Judge, before whom the prisoner is brought by habeas corpus, may, for his benefit, look at the whole of the examination. It is therefore necessary that every part of the examination, upon which the Commissioners commit, should be set forth in their warrant; but it is not necessary, if the whole is set forth, to particularize the questions for not answering which satisfactorily the wit. ness is committed. The Court must look to the whole of the examination, to see whether the questions upon which the party is commit-vious examination only as a report. They act ted were on a subject within the jurisdiction of the Commissioners. Ex parte Harrison d. The only way for the Court or Judge to come to a conclusion on the legality of the commitment, is to look to the whole examination. There can be no better specification of the unsatisfactory answers than we have here, if the whole is set forth. The doctrine is truly laid down in Ex parte Vogel. The charge being here of a transfer of goods under a colourable sale, it is possible the witness could not give better answers; but it is because the Commissioners did not believe him that his answers were deemed unsatisfactory. If the Court thought that the examination altogether did not warrant the commitment, it would discharge the prisoner. The next objection to the cominitment is, that the questions were illegal, and therefore the Commissioners had no right to put them. I think the questions are not illegal, and if they were, I would not hold that that objection would now come too late; and in that I beg to differ from what is said by Mr. Justice Holroyd in Ex parte Vogel For that most learned and venerable Judge I have the sincerest respect. He is represented in his judgment in that case to say, that "an objection to the legality of the questions was too late, when the party was brought up by habeas corpus; that he ought to have demurred to the questions before the Commissioners, if they were illegal, and not having done so, he was then too late." I doubt the expediency of that doctrine. The witness may be an ignorant mau, and without professional advice;-how could he, under such circumstances, judge whether a question was illegal. So much do I differ from this doctrine, that I am induced to suppose this may be a misreport of what fell from that learned Judge. I have no hesitation in saying, that the ground of commitment is adequately disclosed on the face of this war

rant; and the reason of the dissatisfaction of the Commisioners is equally apparent: it is, that they do not believe his account; and if they are right in that, the only way to satisfy them is to tell the whole truth. The prisoner may explain parts of his evidence, and shew his account is true. The last person who was before this Court since the new act passed, did, on further examination, satisfy the Commissioners The question here now is, ought I to concur in the dissatisfaction of the Commissioners? But that is not material; for I think the Subdivision Court did not comply with the act of parliament, in beginning their examination where the single Commissioner left off. The examination by the single Commissioner was properly taken, and the witness properly committed by him to the messenger. A single Commissioner cannot now commit to prisone. It is for the benefit of the prisoner the act gives him the security of three Commissioners. The Subdivision Court could consider the pre

on that, and add one question on it, and the
witness saying he would abide by it, they com-
mit him. If they had gone over the whole of
the questions again, the commitment would be
right, as founded on what would have passed
before themselves. There may be much in the
manner of a witness to give explanation to his
words, although the words are chiefly to be
judged of. The Commissioners act on what
was said. The two Commissioners might see
in the manner of the witness, if they examined
him from the beginning, something to induce
them to differ from the third Commissioner,
and they ought to give the party that benefit.
The seventh section of the Bankruptcy Court
Act does not expressly describe the manner of
the examination; but the best construction of
it is, that all who commit ought to see the
whole inquiry, and not to take it on report;
for the commitment is their act, and on their
orders. On this ground alone I discharge
the prisoner: let him be brought up and ex-
amined again. This is a formal objection to
the commitment; there is a case in 2 Rose,
217, in which Lord Eldon refused to recommit
a prisoner brought before him, although the
objection was to form, not so strong as this. I
give the prisoner the costs subsequent to his
commitment by the Subdivision Court. The
assignees may have them out of the estate of
the bankrupt.

Ex parte Bardswell, in the matter of Venalles, a Bankrupt. Lincoln's Inn Hall, Feb. 15 & 17, 1834.

Rolls Court.

COMPOSITION DEED.

A debtor, having mortgaged part of his property to a creditor, assigns all his property, including that part, for the benefit of suck creditors as rould agree to the composition deed. The mortgagee acts in furtherance e 1 & 2 W. 4, c. 56, s. 7.