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SAUNDERS'S SUPPLEMENT TO BURN'S JUSTICE for 1848; comprising all the Magistrates and Parish Officers' Law of last Year, a continuation of the previous Supplement, which brought down the Law from the last edition of Chitty's Burn to the close of 1847. By T. W. SAUNDERS, Barrister at Law. Price 108. cloth; 128. half bound; or the Two Supplements in 1 vol., price 30s. half bound. Also, COX'S CRIMINAL LAW CASES, Part III of vol. 3, on Tuesday. BITTLESTONE & PARNELL'S NEW MAGISTRATES' AND MUNICIPAL CASES in all the Courts in Easter, Trinity, and Michaelmas Terms last; with an Appendix of New Statutes, &c. Part I of vol 3, price 7s. 6d. Law Times Office, 29, Essex-street, Strand, and of all Booksellers in town and country. THE BELLE SAUVAGE ESTATE, LUDGATE HILL. THE WORSHIPFUL COMPANY OF CUTLERS are now prepared to receive Tenders for Leases of this important Estate, which occupies an area of nearly 30,000 square feet, and adjoins on one side the open space formerly the site of the Fleet Prison. It comprises the extensive and very desirable premises within the Gateway of the Belle Sauvage-yard, Ludgate-hill, consisting of ten houses and warehouses, numbered from 1 to 10, of which the Belle Sauvage Hotel forms a considerable part. There is also a large range of stabling, &c., at the back or north end of the yard, and approached by the second archway. The Premises are most conveniently situated, and are admirably adapted for an Hotel, Chambers, Warehouses, Clubhouses, and for almost any Establishment requiring extensive accommodation. The Leases of the property will expire at Michaelmas, 1849, but it may be now viewed by consent of the tenants, and Plans and further particulars may be obtained at the offices of Messrs. Beaumont & Thompson, 19, Lincoln'sinn-fields; and of Mr. Richard Tress, Architect, 23, Little St. Thomas Apostle. Tenders may be submitted for the whole or any part of the property, and for any term of years; and they are to be sent, sealed, to the Hall, in Cloak-lane, on or before Wednesday, the 9th May, 1849. JAMES BEAUMONT, Clerk. CLERICAL, MEDICAL, and GENERAL LIFE AS SURANCE SOCIETY.—INVALID LIVES. SOLICITORS' AND GENERAL LIFE ASSURANCE early in the year 1824, originated the plan of granting Policies on the SOCIETY, 57, Chancery-lane, London. Registered. DIRECTORS. CONSULTING ACTUARY. FRANCIS G. P. NEISON, Esq., F.L.S. This Society transacts the usual business of Life Assurance, and presents the following Advantages to the Assured:First. The security of a large subscribed Capital. Second. Exemption of the Assured from all liability. Third.-Tables of Premiums calculated on the true law of mortality, expressly for this Office, and affording particular advantages to young lives. Fourth.-Participating and Non-participating Scales of Premiums. In the former the Assured are entitled to EIGHTY PER CENT. or FOURFIFTHS of the profits divided amongst them periodically, either by way of addition to the sum assured, or in diminution of Premium, at the option of the Assured. Fifth.-No deduction is made from the four-fifths of the profits belonging to the Assured for interest on Capital, or for a Guarantee Fund. Sixth.-No Policy disputed, except in case of fraud. Seventh. This Society gives a much larger share of profits to the Assured, and at a lower rate of Premium, than the great majority of other Life Offices. Eighth.-Parties wishing to assure their lives without participating in the profits can do so on a lower scale of Premiums than that of a large proportion of other Offices... The Directors meet on Thursdays at 2 o'clock. Assurances may be effected by applying on any other day between the hours of 10 and 4, at the Offices of the Society, 57, Chancery-lane, London, where Prospectuses and all other requisite information can be obtained. CHARLES JOHN GILL, Secretary. In addition to the ordinary Assurance of Healthy Lives, this Society, Lives of Persons more or less deviating from the standard of health. Having issued one-fourth of the whole number of Policies on Lives of that description, the Board have recently caused a careful investigation into this branch of the business to be made. The result of this investigation has proved highly satisfactory as to the past, and encouraging for the future. The data, derived from long experience in this class of cases, and exclusively available by this Society, enable the Directors to state with confidence their conviction that the system now adopted by them for assuring Invalid Lives is as safe and beneficial as that upon which the scale for Healthy Lives is constructed. Table of Premiums for Assuring £100 on a Healthy Life. The two first Divisions averaged 221. per Cent. on the Premiums paid. The Third, 281. per Cent. The Fourth Bonus, declared January, 1847, averaged rather more than 361. per Cent.; and, from the large amount of Profit reserved for future appropriation, and other causes, the Bonuses hereafter are expected to EXCEED that Amount. The Society's Income, which is steadily INCREASING, is now upwards of 122,000l. per annum. Tables of Rates, and Forms of Proposal, can be obtained of No. 99, Great Russell-street, Bloomsbury, London. Orders for THE JURIST given to any Newsman, or letter (postpaid) sent to the Office, No. 3, CHANCERY-LANE, or to STEVENS & NORTON, 26, BELL-YARD, and 194, FLEET-STREET, will insure its punctual delivery in London, or its being forwarded on the evening of publication, through the medium of the Post Office, to the Country. Printed by LUKE JAMES HANSARD, PRINTER, residing at No. 7, Southampton Street, in the Parish of St. George, Bloomsbury, in the County of Middlesex, at his Printing Office, situate in Parker Street, in the Parish of St. Giles-in-the-Fields, in the County aforesaid; and Published at No. 3, CHANCERY LANE, in the Parish of St. Dunstan in the West, in the City of London, by HENRY SWEET, LAW BOOKSELLER and PUBLISHER, residing at No. 41, Great Coram Street, in the Parish of St. George, Bloomsbury, in the County of Middlesex. Saturday, March 10, 1849. No. 636-VOL. XIII. MARCH 17, 1849. Price 18., with Supplement, 28. The following are the Names of the Gentlemen who favour THE JURIST with Reports of Cases argued and decided in the several Courts of Law and Equity: of a compulsory registry would be simply to distinguish, by the act of the Legislature, between good and he would bid accordingly. If there were not a. compulsory registry, then, if he found Blackacre registered, and Whiteacre not, he would infer that the owner of Whiteacre had an incomplete title, and he would again bid accordingly. If the question be looked at with reference to the registry only of future transactions, then the effect of voluntary or compulsory registration would be this:-So far as the owners of any interest in a particular piece of land shall have availed themselves of the registry, so far will the value of that land be beneficially affected by the degree of certainty derivable from the fact: so far as there shall be an absence of registration, in so far will the value of the land be subject to and affected by the calculations applied to lands purchased under the existing system. The whole question resolves itself into one of increase or decrease of the market price of lands; and it may be thought that the vendors and purchasers of land will be able to make their own calculation, upon the inferences to be drawn from the fact of total or partial non-registration, if registration is accessible, with a degree of accuracy equivalent in its results to the certainty arising from actual universal registry. On the other hand, we cannot say that we see, OUR readers will have seen in THE JURIST of last titles and bad or defective ones. The purchaser, lookweek the abstract of Mr. Drummond's bill for a regis-ing at the registry, would see that the title to Blackacre tration of transfers of real property. The bill itself was complete, and the title to Whiteacre incomplete, has met with quite as unqualified disapprobation in the House of Commons as it has in our pages; and, though it is committed, probably it will never re-appear. If it does, it will be in a form so unlike its present form, that it will be no longer Mr. Drummond's bill. That is, however, of little consequence. It is clear that the country is not yet ripe for a general registry; but it is equally clear that a craving for a registry has commenced, and that it will go on increasing gradually till it reaches the point of clamorous hunger, and will demand to be satisfied. At present, the great point is to discuss, not what shall be the specific arrangements of any registry bill, but what shall be its general principle. The first and most difficult point to settle, and that on which men's minds appear most to differ, is, whether a registration should be voluntary or compulsory. We, who are somewhat of the laissez faire school, and consider land but as a form of transferable and marketable property, not differing much in its marketable incidents, if let alone, from other property, should be disposed to think it not of much importance whether a registry is voluntary or compulsory. If registry is to have any effect, it will be this-that a purchaser will be enabled to assure himself, by inspec-in at least future compulsory registration, anything tion of the registry, of all the existing dispositions of the ownership of any given hereditaments, assuming, proprietors of land. of course, as the very basis of all efficient registration, that a purchaser is not to be affected by anything that does not appear upon the registry. Now, first, in reference to the registration of existing titles, the effect VOL. XIII. J that can be either very dreadful or very hurtful to the The advantage of concealing one's transactions with his landed estate is more ideal than substantial, in almost all conceivable cases. Indeed, the concealment is, in general, only the same sort of concealment as that of the ostrich, when it hides its head in a corner that nobody may see its body. No man effectually conceals, for anything more than a fraction of time, his alienation, whether it be by sale or mortgage, of any property from which he derives a visible income, in any of the cases in which he can suffer material loss of credit or means that is, in any of the cases where the mortgage or sale is effected, not for the purpose of mere conversion, but for the purpose of some application of the equivalent, which diminishes the means of expenditure of the seller. If a man outruns, and mortgages to pay off heavy debts, he never can, in fact, conceal the transaction. If a man of 10,0007. a year of landed property sells any of his land for the purpose of having his property in the funds, or in other investments, he may conceal the transaction; but it is not in such cases that he troubles himself to do so. It is only when the consequences of alienation are a descent in pecuniary resources, that a man desires to conceal the alienation; and then, we assert, that he very rarely can conceal the alienation for any material portion of time—that is, if the property aliened was a property from which he derived a present income. The dread, then, of publicity from a registry is one which, we apprehend, is only well founded in regard to transactions of a kind which cannot, even in the present state of things, be kept shrouded from publicity, and is, therefore, scarcely an element to be considered in the question. On the whole, we are, therefore, inclined to think, that, though much may be said with apparent force for and against compulsory, or for and against voluntary registration, it is really a matter of very little consequence, and may be safely left to the wishes or the fancies of those who are and those who would be landed gentlemen. The next point of importance is, whether, if a registry exists, it should be universally accessible; and this we conceive to be a question of a very different kind. If a registry is only to be accessible on shewing a primâ facie interest in examining it—as, that one is interested in an estate by contract to buy it or otherwise—the result would be to put the honest public in a worse position than they now are, and to put it in the power of the dishonest public only to make a mischievous use of the registry. It may be well taken for granted, that no man for his amusement will go to a registry-office and pay fees to read tiresome deeds and entries. Every man who goes to inspect a registry goes because he has an interest, or because he has acquired, or has contracted to acquire, or bonâ fide wishes to acquire, some interest in the land, or because he wishes to pry into his neighbour's title, and to do what is called pick a hole therein. In the first class of cases he desires to make an honest use, in the second a dishonest use, of the registry. It cannot be pretended, that the first sort of inquirers should be incumbered in their search by any unnecessary vexation or impediments; so to incumber them would be not only an injustice to them, but clearly an injury to the value and marketability of land. In prac tice there are already two classes of titles which are publicly registered and accessible to everybody; we mean wills and specifications of patents. And though occasionally, perhaps, there may be instances of persons improperly using those registries, for the purpose of finding out flaws in titles, and making their bargain with the victim accordingly, yet we believe that such instances are so rare as to be quite an exception to the rule. With regard to the class of persons who would make a trade of inspecting registries for the purpose of finding out flaws in titles, it may be safely assumed, that they would not hesitate at finding means to evade any rule requiring a primâ facie claim to search to be shewn, which should not be so stringent as to be a heavy tax upon the search of the bonâ fide inquirer. We appresible to the public at only such moderate charges as hend, therefore, unless a registry were perfectly accesmust be necessary or proper, by way of producing a revenue to the office, it would be worse than useless. ON THE CUSTODY OF INFANTS. The jurisdiction of the Court of Chancery over the persons of infants has been derived by all the great writers on this subject directly from the Crown, by an implied delegation of its authority, as parens patriæ, to assume the care of those who are unable to care for themselves*. This definition has been repeatedly recognised and acted upon in the early casest; and even in a very recent one, (In re Spence, 2 Phill. 247), Lord Cottenham asserted the jurisdiction to be as stated above, in the plainest language. Nevertheless, the inconvenience of exercising this authority has been occasionally so strongly felt, that some judges have seemed desirous to limit the power of the Court to take the custody of an infant's person from his natural guardian, even to give it to the mother, to cases where some pecuniary advantage is secured to the infant as an inducement for the alteration. Too many protestations cannot be made against any departure from principle in these cases. The consequences of a restriction of the authority of the Court might produce great injustice. Suppose a case that has often happened, that both father and mother are equally unable to procure an actual settlement to be made upon their infant children; that the father is a man of immoral habits, improvident, houseless, and cruel to his children, while the mother, who is desirous to have the band, is, though poor, industrious, and in every way custody and management of them apart from her husbetter fitted to care for all their temporal and spiritual interests; is the Court, in such a case, to refuse its interference? If the jurisdiction be, as it is stated, the delegated authority of a parens patriæ, under such circumstances, surely, the Court would be inclined to interfere. Lord Cottenham, in the recent case above referred to, says, "I have no doubt about the jurisdiction. The cases in which this Court interferes on behalf of infants are not confined to those in which there is property. This Court interferes on behalf of infants, quà the Crown as parens patriæ, and the exercise of which infants, by virtue of the prerogative which belongs to is delegated to the Great Seal." And the grounds for such interference he stated to be, "misconduct on the father's part of such a nature as to contaminate and corrupt the morals of his children." This dictum of his Lordship is supported by nureferred to in their order. merous cases, some of the most important of which are *Story's Equity Jurisprudence, s. 1334; 2 Fonbl. Eq. Bl. 226, n. (a). + See Eyre v. Shaftesbury, (2 P. W. 118); Wellesley v. Beaufort, (2 Russ. 1). 2 Phill. 247. It will be observed, that, in most of them, the infants were entitled to property in settlement; but this circumstance was not relied upon in any case, as a ground for the exercise of the jurisdiction. It is obvious, that, unless the infants or their parents had property, they would seldom venture to institute proceedings in Chancery, so that the case we have supposed cannot often be brought before the notice of the Court. The question of custody has, however, lately been raised, under circumstances such as have been hypothetically stated above; and it is worthy of consideration, whether or not that was a case for interference. In Cruise v. Orby Hunter, (2 Bro. C. C. 499), the petition stated the father to be in embarrassed circumstances, and that his infant son was entitled to considerable property, and to a maintenance by his grandfather's will, and prayed that the father might be restrained from taking the infant abroad, or improperly interfering with his education, which was directed by his mother, who lived separate from her husband. Affidavits on either side imputed gross charges to both father and mother. There seems not to have been any offer to support the child on the mother's part, but the Court would not allow the father to interfere with him, and plainly asserted its jurisdiction. In Ex parte Warner, (4 Bro. C. C. 101), the infants petitioned that a guardian might be appointed to have the care of their persons and their education during their minority, and that their father might be restrained from removing them from the schools and situations in which they were placed, on the grounds that the father had been guilty of cruelty to the mother, and was insolvent, and unable to provide for the petitioners, having no settled place of abode. It appeared that the infants were entitled to a little property, and the Court, without requiring any settlement to be made upon them, granted the prayer. In Wellesley v. Beaufort, (2 Russ. 1), Lord Eldon would not give the custody of the infants to the father on his petition, it being proved that he was grossly immoral, and taught his children habits of immorality, and that he was living, up to the time of the petition, in open adultery with the wife of another man; but the mother being dead, he referred it to the Master to approve of some person to take charge of them. The children seem to have been entitled to settled property; but the Lord Chancellor declared himself uninfluenced, in such a case, by pecuniary considerations; and, in answer to the objection, that the Court only exercised this jurisdiction where it had property, said, "It was not from any want of jurisdiction that the Court does not act, but from a want of means to exercise its jurisdiction, because the Court cannot take upon itself the maintenance of all the children in the kingdom." In De Manneville v. De Manneville, (10 Ves. 52), the wife had left her husband, taking with her their infant child, whom her husband afterwards forcibly recovered; and the petition was, that the infant might be restored to its mother, or, at least, that the father might be restrained from taking it abroad. It was sworn, that the husband had ill-used his wife, for the purpose, it seems, of compelling her to make a will in his favour of certain property which she was empowered to appoint, that he was irreligious, and held jacobinical opinions on political matters. The infant was entitled to some property, settled upon it, after the death of its father; and Lord Chancellor Eldon, asserting the jurisdiction of the Court, made an order, restraining the father from removing or doing any act towards or for the purpose of removing the child from the jurisdiction. In Whitfield v. Hales, (12 Ves. 492), the petition was on behalf of infants, for a reference to the Master to appoint a guardian, and a proper allowance for maintenance. The affidavits alleged gross ill-treatment and cruelty towards the infants by their father, for which he had been prosecuted and imprisoned. Under these circumstances, the order applied for was made. In Shelly v. Westbrooke, (Jac. 266, n.), the infants were living with their maternal grandfather, who had settled 2000l., 47. per Cents, upon them. The father was restrained from taking them away, because it was proved that his principles were atheistical, and his conduct immoral. And even though it seems to have been represented, that the pecuniary interests of the children would suffer, the Lord Chancellor declared, that he would not sacrifice to such considerations interests which he deemed of higher importance. The Court has even interfered for considerations of much less weight, as, for example, in the case of Lyons v. Blenkin, (Jac. 245), where a grandmother provided by will for her grandchildren, and attempted to appoint their aunt their guardian, to whom she also gave the management of the property devised to the grandchildren. The father, having permitted his children to remain in their aunt's care for many years, was not allowed to remove them without some good reason, as he was not able to educate them in an equally advantageous manner. In another case, (Anon., Jac. 264), the petition was by the mother, who was separately entitled to considerable property, and living apart from her husband, that the infants might be placed with her to be educated as the Court should approve, on the ground only that the husband was not in circumstances which enabled him to educate them, and the mother offered to provide for their maintenance. The Court refused the application, saying, that when it interfered against the father upon pecuniary considerations only, they must be solid considerations, not merely expectations. We must admit this to be a reasonable distinction, and it is no doubt just that the father should not be deprived of his children on the grounds of poverty alone. But this decision can afford no argument for a similar condition, where the father has by his conduct shewn himself unfit to have the care of his children. If the Court cannot in such a case interfere with the custody of infants, simply because the father is an improper guardian, without entering into any considerations of pecuniary advantage, it would seem that its jurisdiction over the persons of infants has been wrongly defined. The decision to which these observations particularly refer is one of Vice-Chancellor Knight Bruce, in the case of In re Fynn, (11 Jur. 713). In that case, infants residing with their mother and grandmother, at the house of the latter, petitioned by their grandmother, as next friend, that some proper person might be appointed guardian, and the custody of the children committed to him under the direction of the Court, and that their father might be restrained from recovering possession of them by habeas corpus, or in any manner interfering with them without leave of the Court. The grounds stated for the application and supported by affidavits were, fraudulent representations of the father made to induce the marriage, cruelty to his wife, blasphemous and obscene language, drunken habits, distress from his extravagance, and ill-treatment and neglect of the children after the wife had left him. Some of these allegations were denied by affidavits by and on behalf of the father; but sufficient proof of their truth was given to induce the Vice-Chancellor to say, that his strong inclination was, to interfere with the father's power over his children, more especially as it appeared he was unable to educate or maintain them; and, to use the language of the learned judge, “to restore the boys to him, as it seems to me, would be, in all human probability, to consign them to unsettled and irregular modes of living, adverse in the highest degree to culture and discipline, to say nothing of the mutual assurance principle, are not so stringent as they have been represented to be; and even if they were to be so construed, might be literally complied with by means of apt provisions in the deed of settlement, involving formal, but not real, departure from the strict mutual principle. 66 occasional, if not the constant, privations of the ordinary comforts, perhaps decencies, of life in their class in society, to which, in my judgment, they would be very likely to be exposed.' And, again, after reading some letters of the father, his Honor remarks, "I must certainly say, that, on the whole of the evidence taken together, he appears to be a person to whose guardian- Let us first see what are the apparent difficulties. ship or care any reasonable man having an option would The act applies to (among others) "every joint-stock strongly object to entrust children." And again, "Mr. company as hereinafter defined," established for the Fynn's clear unfitness, in my judgment, to be guardian purpose of assurance or insurance; and the term, of his children, if he were not their father, has been "joint-stock company," under the tyranny of an inexhibited in such a manner, arises from and exists interpretation clause, is made to include every assursuch a state of circumstances with respect, not merely ance company or association for the purpose of assurto his means of supporting his children, but with regard ance or insurance on lives, &c., whether joint-stock to that and other weighty and important considerations, companies or mutual insurance societies, or both." such as to render it incumbent on the Court, for the Nothing can be plainer. The word "subscriber," sake of the children, to interfere against their father." when used in the act, means "any person who shall Yet a few sentences further on, his Honor says, "I have agreed in writing to take or have taken any share believe that I ought to require either an actual appro- in a proposed company, or in a company formed, and priation of property or income, or some security." who shall not have executed the deed of settlement or And the only interference which seemed proper to his a deed referring thereto." The word "shareholder" Honor was an interim order," without prejudice to any means (if the context or subject-matter is consistent proceedings under the writ of habeas corpus or other- with such meaning) "any person entitled to a share in wise at law, for the purpose of obtaining possession of a company, and who has executed the deed of settlethe infants," in pursuance of which proceedings Mr. ment or a deed referring to it; or in the case of mutual Baron Alderson shortly afterwards directed the delivery benefit societies, any person who shall be an assured of the infants to their father. member thereof." (See sect. 26, where this definition appears to have been forgotten). This case raises the question of the jurisdiction exactly in the manner supposed above. Neither the father nor mother seem to have been able to make any settlement upon the children. The father was shewn to be unfit to have the care of them; and the question was not between him and a stranger seeking to be appointed guardian, but whether, under these circumstances, the Court would deprive the mother of her children, and give them into the custody of such a father. Now, if the jurisdiction of the Court to interfere be independent of any pecuniary consideration, this seems to have been an occasion for exercising it; but if the decision in this case is to be regarded as a precedent, it will in future be idle to deny, that questions of property are in these cases after all of paramount import ance. E. E. K. REGISTRATION OF MUTUAL INSURANCE The singular blunder committed by one of the "amenders” of the bill for the Joint-stock Companies Registration Act, in expressly extending its operation to mutual assurance societies, without providing for the peculiarities of the constitutions of such companies, has been much discussed. But some companies on the mutual principle have been registered under the act; and until the appearance of an article on the subject in The Law Magazine, (vol. 9, N. S., p. 38), we did not know that any one thought it "impossible for an assurance company, starting on the pure mutual principle, to comply with the requisitions of the act, necessary for obtaining a certificate of complete registration." As the difficulty has since been actually raised and insisted on in practice, it may be useful to consider whether it is really insuperable. There is a little quibble involved in the words "pure mutual principle," for no company ever starts on that principle in the sense in which the expression is here used. A fund is always subscribed at the commencement for preliminary expenses, which is intended to be subsequently repaid out of the joint or mutual fund. But waiving this, we think that it is perfectly easy to start and completely register such a company, in strict accordance with the requisitions of the act. We think that the clauses of the act which seem to make indispensable things inconsistent with the There is nothing in the requisitions for provisional registration calling for remark. A return of the names of the "subscribers" is essential only when there are any. Prior to complete registration, it is necessary (sect. 7) to "form the company" by a deed of settlement, in a schedule to which are to be set forth certain particulars; among which are "4. The amount of the proposed capital, and of any proposed additional capital, and the means by which it is to be raised." "6. The total amount of the capital subscribed or proposed to be subscribed at the date of such deed." (What does this mean, if it does not mean the same as No. 4? Mr. Taylor, the assistant registrar, says, it appears to mean the amount of all the shares then taken. It cannot mean that, we should think. Does it mean the amount of the first call?) "7. The division of the capital (if any) into equal shares, and the total number of such shares, each of which is to be designated by a separate number in a regular series." 8. The names, &c. of all the then subscribers, according to the information possessed by the officers of the company, (that is to say, the names of all the persons, if any, who have agreed to take shares, and have not executed the deed of settlement. If all who have agreed to take shares have also executed the deed of settlement, there will be no subscribers). 9. The number and distinctive numbers of the shares which each subscriber holds, distinguishing those on which the deposit has been paid. The deed must contain à covenant on the part of every shareholder to pay up the amount of the instalments on the shares taken by him, and must make provision for such of the purposes set forth in Schedule A. to the act, as the nature and business of the company shall require, and must be signed by at least onefourth in number of the persons who, at the date of the deed, have become subscribers, and who shall hold at least one-fourth of the maximum number of shares in the company. ("Maximum number of shares" meaning, we presume, in the peculiar phraseology which has been imported into this act, shares actually subscribed for?" for if that be not the meaning, then no company with capital can be completely registered until one-fourth of the maximum capital has been |
