"to the English bankrupt laws the world was indebted for the public repudiation of the sacred duty of restitution." It was further urged, that such liability would check fraudulent compositions and arrangements that were then (as now) forced upon creditors by their knowledge that, if the estate went into bankruptcy, they must wait much longer for any dividend, and that heavy expenses must be borne by the estate. That these fraudulent arrangements had become so common as to induce the observation of one of the judges, that "our laws are such, that a tradesman may be supposed to owe it as a duty to his family to fail twice in his life": that "by establishing this liability, imprudence of every description would be checked at present, the merchant or trader who speculates beyond his capital, takes the profits if successful-if the speculation be ruinous, his creditors bear the loss;" that extravagance of living would also be checked by the knowledge that creditors, whose money the debtor was spending, might acquire legal claims upon his future property; and, finally, it was urged that "unless the law had brought down the moral sense of the community to the standard of its own provisions, it would hardly be a question at the present day whether in the case of a man who heretofore borrowed £1,000, and who now has ample means for paying twenty times the amount, there is any injustice in holding him not to be absolved from liability in respect of that loan upon the ground that at some intermediate period he had not the means of discharging the debt.

These propositions, adduced twenty years since, have lost none of their force by age. The question still remains unsettled, upon what principle of general policy the law ought to acquit the obligations of the debtor without the sanction of the creditor, as against the debtor's after acquired property, due regard being had to prior payment in full of all subsequent engagements?

A law which may afford to creditors the means of prompt possession, and equable distribution of assets of insolvent estates, with further right of recovery upon the after acquired property of insolvents, is undoubtedly the desideratum from the creditors' point of view. On the other hand, the debtor should be freed from all personal coercion by the abolition of arrest and of imprisonment for debt, or the interference of previous creditors in his after pur suits, until such time as he may have acquired property to discharge the old liabilities.

In approaching the subject of future legislation, the relative positions of debtor and creditor may be reviewed. Legislation has heretofore treated the respective parties as equally entitled to its care and benevolence, overlooking the fact that the insolvent debtor is constantly a violator of his engagements, either from misfortune, imprudence, or fraud; and that the creditor is as constantly a sufferer; and that consequently the business of legisla tion, so far as it may be expedient to interfere, appears to be to secure to creditors their property in the hands of the insolvent→→→→ to protect them from fraud on his part, and, on the other hand, to

protect the debtor from personal coercion or annoyance on the part of creditors.

It may be safely assumed that no merchant or trader becomes insolvent to the extent of 2s. in the pound upon his liabilities without his own personal and actual knowledge. The abolition of the coercion upon the creditor to give a discharge without payment in full, would induce all parties, becoming embarrassed and insolvent, promptly to lay a statement of the affairs before their creditors; when the dividends were large, as they almost invariably would be, if the insolvency were declared as soon as discovered, no creditor would be found to prefer the delay, cost, and uncertainty, even of the Scotch system of bankruptcy, when offered such a composition as might then reasonably be made; for under that system it is shown that arrangements by composition and deed are very largely adopted; such arrangements being compulsory only so far as regards one-fifth of the value of the debts of the estate.

It will be gathered from the foregoing statements and remarks, that much of the failure in the administration in bankruptcy has arisen from the expectation that creditors would do that in regard to the interests of themselves and fellow creditors, which they cannot be induced to do; and that a still larger portion of the failure accrues from the facilities afforded to dishonest debtors. The alterations suggested absolve the creditors from that individual exertion which they cannot be induced to undertake, and withdraw the facilities for fraudulent practices on the part of the debtor. So long as these incentives are permitted to continue, it is hopeless to attempt any large practical amendment of the law of debt. While suggesting alike the necessity and the propriety of making the contract between the buyer and seller, the borrower and lender, inviolate, so far as the means of the respective parties extend, it abolishes all power of coercion or personal annoyance of that which may be assumed to be the stronger as against the weaker party; while in the payment of debts from after acquired means, the heretofore insolvent discharges his duty faithfully to his fellow-tradesmen, and is likely to enjoy the permanent advantage of increased capital by the improvement of credit, consequent on the prompt adoption of this line of conduct.

The broad and simple truth, that underlies the whole question of insolvency, appears to have constantly escaped the practical cognisance of the legislature, viz., that when a man in business becomes insolvent his position instantly alters; the business or estate is no longer his, it has passed to his creditors, he is merely the gerant or factor, managing their goods or moneys; the man has been trusted on the faith of his solvency; immediately that solvency ceases, it is his duty to submit that fact to the creditors, and to submit the assets to such arrangements as they may deem most expedient.

If the legislature could be induced to recognise and act upon this obvious truth, most of the fearful losses that now attend commercial pursuits would be largely alleviated. It should be made the interest,

as it is the duty, of every insolvent promptly to declare such insolvency. But so long as the law countenances and encourages all the immoralities arising from concealment, it can scarcely be expected that parties becoming insolvent should adopt a higher tone of morality than the laws by which their insolvency is to be regulated. The law, as it stands, declares that the insolvent shall, at any and every time, be able to compel an acquittance in full, no matter how small the dividend or how diminished the assets; and this operates as a direct incentive to the debtor to suppress the fact of insolvency until the bulk of the creditors' assets are exhausted; and further, that insolvents' after acquired property will be secure against any claim. While such is the law, it appears to be vain to hope for the adoption of the honest and simple course of a prompt declaration of insolvency that would effectually prevent frequent appeals to every court of bankruptcy. Nor does there appear to be much force in the objection that may be raised to the re-establishment of the right of unsatisfied creditors to be paid out of after acquired property; inasmuch as such claims would always stand at the back of subsequently acquired engagements; and although the onus of proof of inability to pay would of course rest with the debtor, yet it would not be difficult to prevent such claims becoming oppressive, by giving power to the judge to grant costs against the claimant, if there shall not appear to have been reasonable grounds for attempting to force the payment. The course of legislation for the last half century has been gradually to remit the pains and penalties of the debtor. By the Act of 1861 these were all practically abolished, but the pains and penalties on the creditor are continued so long as he is compelled to acquit without satisfaction in full; any legislation that removes this anomaly and injustice will, doubtless, have a highly beneficial effect upon the commercial and trading interests of the country.

THE LAW OF EVIDENCE.*

Is it expedient to remove any and what of the remaining restrictions on the Admissibility of Evidence in Civil and Criminal Cases? By ALFRED WADDILOVE, D.C.L.

NOT

OTWITHSTANDING that our rules of evidence have been freed from much of their stringency, there are still several classes of persons whose evidence cannot be received in a court of justice. They may be enumerated as follows:-1st. Parties (whether plaintiff or defendant) in any action for breach of promise of marriage. 2nd. Parties in any suit instituted in consequence of adultery. 3rd. Persons charged with an indictable offence, or any offence punishable on summary conviction, as to their giving evidence

See Transactions, 1860, pp. 251 and 266; 1861, p. 252; 1863, pp. 172 and 233; 1864, p. 303.

on oath for or against themselves. 4th. Husbands and wives of all persons who are defendants in any criminal proceeding. 5th. The wives of supposed paramours, who are made co-respondents in suits for dissolution of marriage, or for damages by reason of adultery. 6th. In cases of high treason and misprision of treason (other than such as consist in injuring or attempting to injure the Queen's person) those persons who are not included in the list delivered to the defendant pursuant to Statute; and, lastly: 7th. All persons insensible to the obligation of an oath.

It was not until the year 1833 that any attempt was made by Parliament to control the admission or exclusion of evidence in ordinary trials. Since then several important Acts have been passed, owing to the enlightened views of Lord Denman and our President, Lord Brougham, but in all of them provisoes have been introduced to preserve the four first restrictions I have named. Although crime and interest no longer bar testimony; although parties in civil actions may be heard in support of their own case; although husbands and wives are competent witnesses for or against each other in civil actions; and although many other rules have been adopted which are unanimously admitted to have contributed to a more truthful administration of justice, still our law of evidence is, I consider, yet defective, by reason of the restrictions I have named.

During the last thirty years a great advance has been made towards the improvement of the state of the law of evidence. I say improvement, because the admission of evidence has been freed from many barriers, whereby justice has been more properly, because more truthfully, administered. Our old rules of evidence were simply judge-made law. Acts, indeed, were passed, but the restrictions I have named were still retained. But in the last Session of Parliament an attempt was made to relax some of these impediments. A Bill was introduced by Sir Fitzroy Kelly of a brief but comprehensive character. It contained three important enactments:-1st. That parties to actions for breach of promise of marriage should be admissible as witnesses. 2nd. That parties to any suit instituted in consequence of adultery might offer themselves as witnesses on their own behalf. 3rd. That persons charged with an indictable (in other words criminal) offence might tender their own evidence on their own behalf. There were some other clauses in the Bill which do not touch the present question. The Bill, however, did not pass; nay, it must be admitted that the reception it received by the House of Commons is somewhat discouraging to law reformers; but we must be animated by the Virgilian maxim, "Ne cede malis sed contra audentior ito." As a set-off, however, against this failure, we must regard Mr. Denman's Act, passed in the last Session, as an important step towards assimilating our civil and criminal procedure. The title of the Act and its preamble declare its object.

It enables the counsel for a prisoner, or the prisoner himself if he have no counsel, to open the case, and then if he have witnesscs to examine them, and when all the evidence is concluded, to sum up

the evidence respectively. It also defines the manner in which witnesses may be discredited. It contains also a just and salutary enactment whereby a comparison of disputed handwriting may be made with genuine handwriting-a very important piece of evidence in cases of alleged forgery, but which, to our discredit be it said, was not before admissible in criminal cases.

If the signature to a will was alleged not to be genuine in a trial in a civil court, a comparison with genuine handwriting was permitted in order to test the genuineness of the signature, but if a person was indicted for forging the signature to that very will no such opportunity or privilege was afforded him. The Bill passed without opposition, and it cannot but give us hope that further relaxation will be made in our criminal law. Contrast the feeling of our Legislature on that occasion with its tone when the Prisoners' Counsel Bill was introduced in the year 1836. The permission for a prisoner to have counsel to defend him was denounced as the result of mistaken humanity, and quite unnecessary. It was also said in the House of Lords, by an ex-judge,* who had been a most eminent advocate, in reply to the proposition, "That prisoners should have copies of the depositions taken on their commitment previous to their trial," that if a prisoner were allowed to inspect copies of all depositions taken against him, he would be enabled to concoct a defence between his committal and trial which might defeat the ends of justice by contradicting some facts deposed to by the prosecution as if the ends of justice could be only reached by proving the prisoner's guilt. What should we say to such language now?

From this digression I pass on to the subject more immediately before us. The first restriction I have named occurs in actions for breach of promise of marriage. The first clause of the Bill of Sir Fitzroy Kelly empowered parties in such actions to be heard as witnesses on their own behalf. It was objected by its opponents that from a loose conversation an imaginative or designing person might infer a promise of marriage. A woman might swear in the witness-box that the defendant had made her such a promise; he, on the other hand, might deny it. "But if the woman was clever, designing, and, above all, good-looking, the great probability was that she would get the jury on her side, and the defendant would find considerable difficulty in extricating himself from the scrape." This language, uttered in a somewhat facetious tone, seemed to have weight with our senators, and this proviso was therefore added to the clause-"That no such action should be brought unless the The promise was in writing, under the hand of one of the parties." clause, as amended, was approved of by the House, but on its being put as amended it was negatived, the noes being 86 against the ayes 59. The clause was therefore lost, but as to argument upon the

* Lord Abinger.