JURISPRUDENCE

AND

AMENDMENT OF THE LAW.

Report of the Standing Committee of the Department.

ACTS OF PARLIAMENT.

HE following Acts which refer to the special objects of this Department were enacted during the last session of Parlia

ment :

Costs of Private Bills, 28 & 29 Vict., c. 27.-This Act contains an important provision in respect to the machinery of Private Bill Legislation. It provides that when the Committee on a Private Bill decide that the preamble is not proved, and unanimously report that any petitioner against the Bill has been unreasonably or vexatiously put to expense, such petitioner may recover his costs from the promoters. Also, that when the Committee decide that the preamble is proved, and unanimously report that the promoters of the Bill have been vexatiously subjected to expense by any petitioner against it, the promoters may recover costs from such petitioner. The costs are to be taxed by the taxing officer of the house, and when taxed, may be recovered by action of debt in any superior court.

Law of Evidence and Practice on Criminal Trials, 28 & 29 Vict., c. 17.-This Act, inter alia, assimilates the practice in criminal trials with respect to speeches of counsel, to that existing in civil proceedings, thus giving to the counsel for the prisoner the right of summing up the evidence after calling witnesses for the defence. This measure was strongly recommended at the opening meeting of the Department, in November, 1864, when Mr. Denman, Q.C., undertook to introduce a Bill for the purpose. He did so in the next Session of Parliament, and the Bill passed into law.

Concentration of the Courts of Justice, 28 & 29 Vict., caps. 48 & 49.-These Acts have been passed for the purpose of concentrating on one site, between Carey Street and the Strand, all the superior courts of law and equity, with their offices. The first of these Acts provides the funds (£1,500,000) required for the purpose; 1, by a sum of £200,000 to be provided by Parliament, being the estimated value of the present courts and offices, which revert to the

public; 2, by a sum of £1,000,000 out of the "Surplus Interest Fund," which fund was formed by the surplus interest on monies placed out for the benefit of suitors in the Court of Chancery; 3, by a contribution in the nature of a redemption annuity, payable for a term not exceeding 50 years, to be raised by fees on suitors and processes in the new courts and offices other than the Court of Chancery. This Act also provides for the appointment of a Commission to regulate the plan and arrangements of the intended building. The second Act makes the necessary provision for the acquisition of the site.

These enactments carry out an object long advocated by the Association and the Law Amendment Society, and they were vigorously supported during the last Session by this Committee, and at their request by the Council.*

Law of Partnership, 28 & 29 Vict. c. 86.-This Act provides that a loan to a person engaged in trade, upon a contract in writing that the lender shall receive a portion of the profits, or a rate of interest varying with the profits, shall not of itself constitute the lender a partner. Other sections contain a similar provision in respect to the remuneration of servants or agents of traders, and annuities to widows or children of deceased partners, out of the profits of trade. It is provided that in case of bankruptcy the lender shall not recover any portion of his principal, or of the profits or interest, until the claims of the other creditors for valuable consideration have been satisfied.

This measure, which is virtually an abolition by Parliament of the principle laid down in Waugh v. Carver, that he who shares profits must necessarily share losses, had for many years been advocated by the Law Amendment Society.† Bills to effect the object had on several former occasions been introduced into the House, but had failed owing to their being encumbered, either by their authors, or in the shape of amendments, with provisions for registration. The Law Amendment Society was always opposed to such provisions, and when during the last Session the Bill that is now law was threatened with similar alterations, the Standing Committee, supported by more than one meeting of the Department, made strenuous efforts to resist the proposed clauses, which were finally rejected. The Act, it may be observed, is an important though indirect extension of the principle of limited liability.

Record of Title (Ireland), 28 & 29 Vict., c. 88.-This Act carries out for Ireland an improvement advocated in the Association from the first year of its existence. Ireland has long had a court which can give to the seller and buyer of land the boon of a clear title; what has been wanting is, a means for keeping clear the title thus

*For an account of the proceedings of the Council on this matter, see the Introduction to this volume.

In 1854 the Society sent a deputation to the then President of the Board of Trade, to urge this subject on the consideration of the Govern A report of the deputation will be found in the papers of the Society. See also Transactions, 1864, p. 114.

ment.

investigated. This is now supplied by an enactment prepared in accordance with the views of the Registration of Title Commission, and with the plan actually at work in South Australia. A record of titles to land is established, and any title which has been investigated by the Landed Estates Court may be placed on the record, where it will be kept clear and indefeasible, and be transferable to a purchaser by a simple method. So far as Ireland is concerned, the question of transfer of land is settled, and the Committee trust that a similar benefit may be extended to England, where Lord Westbury's Act has been found nearly inoperative, owing to its complexity and errors. It should be added, that the promoters of the Irish Act are under deep obligations to one of our members, Mr. R. R. Torrens, the originator of the South Australian system, and Registrar of Titles in that colony, for his zealous co-operation.

County Courts Equitable Jurisdiction, 28 & 29 Vict., c. 99. This Act confers on the County Courts an equitable jurisdiction to the extent, speaking generally, of £500, with an appeal to a vice-chancellor. During the passage of the bill through Parliament, its provisions were carefully examined by the Committee, and several of the suggestions made by them, especially as to the mode of remunerating the judges, were embodied in the measure by the House of Lords.

BILLS.

Law of Evidence.-A report prepared by the Committee of this Department during the last spring recommended that the following amendments should be made in the law of evidence :

"First: That persons charged with a criminal offence should on their trial be permitted if they think fit to tender their own evidence on oath in order to clear themselves of the charge against them, subject to their cross-examination.

"Second: That husbands and wives should be competent and compellable to give evidence for or against each other in criminal as well as in civil cases.

"Third: That all parties, including husbands and wives, to a suit of whatever nature, should be competent and compellable to give evidence bearing on the issue, for or against each other.

A Bill embodying these suggestions, together with other provisions, was introduced into the House of Commons by Sir Fitzroy Kelly at the commencement of the Session; but its further consideration was repeatedly postponed, and when at length a discussion was obtained on its clauses, the leading provisions were negatived by the House, and the Bill itself was consequently withdrawn. The Committee must express their great disappointment that several of the amendments proposed by this measure, more especially that for admitting the evidence of the parties in divorce cases-a change recommended by the high authority of Sir James Wilde-have been postponed for another year, and have received so little encourage

* See Transactions, 1858, p. 199.

ment from the law officers of the Crown. The arguments against the admission of the parties in all civil cases of whatever nature, are the same as those which were urged at the commencement of the reform of the law of evidence, and as those with which Lord Brougham's measure of 1849 was encountered; arguments the fallacy and error of which have been long since refuted. The exclusion of the parties in divorce and breach of promise cases is, in fact, a violation of the cardinal maxim of the law of evidence, namely, that the best evidence produceable shall be given; inasmuch as this exclusion bars the testimony of those who can give the most direct and explicit account of the transactions which form the subject of inquiry.

Justices of the Peace Procedure Bill.-This valuable measure, prepared by our fellow-member, Mr. G. C. Oke, and designed to consolidate the whole procedure before justices of the peace out of quarter sessions, was again brought before the House of Commons during the last session, but was withdrawn in consequence of the opposition of the Government.*

REPORTS, &c.

Bankrupt Law. The report recently presented to the House of Commons by a Select Committee substantially recommends the adoption in England of the Scotch system of bankrupt law, which may be briefly summed up in the following principles; that the judicial and mercantile business of the bankruptcy shall be kept distinct-that the mercantile part shall be administered by trustees chosen by the creditors and that the judicial part shall be vested in the ordinary local tribunals. The extreme dissatisfaction with the existing system which seems to pervade the whole commercial class will make some considerable change imperative, and the Committee venture to express their hope that before that change is made, the whole question may be discussed in a broad and temperate spirit, with a view to the interests of the community, apart from the interests of any class or profession. They think it necessary to add that no system, either of bankrupt law or of any other branch of our national jurisprudence, can work well, however sound the principles on which it may be founded, unless integrity of administration is observed by its officials, and be watchfully enforced by public opinion.

Patent Law.-The Royal Commission on this subject has reported, concluding with the following recommendations:

1. Your Commissioners do not find that the present cost of obtaining letters patent is excessive, or the method of payment inconvenient; they do not therefore recommend any alteration of the present system on those points; but they think that patent fees should not be made to contribute to the general expenditure of the State until every reasonable requirement of the patent office has been satisfied.

2. They are unable to recommend a preliminary investigation into the merits of the invention for which a patent is claimed; but they advise that a careful

* See Transactions, 1864, p. 113, and 1862, p. 146.