66

Now,

We have seen that a bicycle is a carriage. in Williams v. Ellis, 2 Q. B. Div., Feb. 19, 1880, 15 L. J. Rep. 19, it is held that it is not a carriage" within a statute imposing a toll "for every carriage drawn or impelled or set or kept in motion by steam or by any other power or agency than being drawn" by horse or other beast power. The court say: "The act was clearly intended to apply only to carriages of a heavy description impelled by mechanical power. A bicycle, therefore, is no more a 'carriage' within the meaning of the statute, than a wheelbarrow or perambulator would be."

"any other public office." People ex rel. Kelly v. Common Council, 77 N. Y. 503.

"Lodger" was defined in Lalorde v. McGloir, 3 Canada Legal News, 94, where a woman who hired unfurnished apartments at a monthy rate, cooking her own meals therein, was held to be a "lodger" within the meaning of a statute giving a lodginghouse keeper a lien on the goods of lodgers. "Launch was defined in Homer v. Lady of the Ocean, 70 Me. 350. Here a vessel was hauled in at the side of a wharf and dismantled, and blocks being laid down on the beach she was floated on them and raised aft, and supported with shoes. The water at ordinary tide flowed all around her, but holes were made in her for the passage of the water and to prevent her floating, as she would otherwise have gone adrift at full tide. Her release from this position was held not to be "launching." court said: “A vessel already in the water cannot be launched, the meaning of which in such cases is, 'to cause to move or slide from the land into the water.' During all the time the work in this case was going on this vessel was in the water, certainly not upon the land. It was not in a situation where it could be moved from the land into the water. It was at no time upon the 'stocks' as a vessel in process of building. True it was blocked up, but in a

The

ing that his cart was not a "cart" within the meaning of section 76, so as to make it incumbent on him to have his name painted thereon. Webster defines a cart "a carriage with two wheels, for carrying heavy commodities." The court must have used some such reasoning as the following: The agricultural implements, although commodities, are not heavy; or the family, although heavy, are not commodities.

In Petition of Began, 12 R. I. 309, it is laid down that "to revel" means "to behave in a noisy, boisterous manner, like a bacchanal."

"Toward" is defined in Hudson v. State, 6 Tex. Ct. App. 565. The statute makes "insulting language toward a female relation" of the prisoner a mitigation of homicide from murder to manslaughter. It was here held that "toward" in this connection does not mean "to," and that such language, even if the female was not present, will have the mitigating effect. The female in this case was the prisoner's wife, but no question was made that she was a "relation."

In Lee v. Barkhampsted, 46 Conn. 213, it was held that a moving train of cars was not a "structure," within a statute enacting that when an injury on a highway is caused by a structure legally placed upon it by a railroad company, the company, and not the party bound to keep the road in repair, shall be liable.

In Walsh v. N. Y. Floating Dry Dock Co., 77 N. Y. 453, it is held that a vessel is not "lying at anchor" when fastened to a pier.

A representative in Congress holds a "public office" within the meaning of a statute prohibiting aldermen of the city of Brooklyn from holding

least, it is shown that it was floated by the water, and whence, whenever the blocks are removed, it may be floated again."

"One " is a "number." So held by the English Common Pleas Division in Re Hereford Election Petition. The statute required a petitioner to give security "by any number of sureties not exceeding four," and it was decided that one would answer. Lord Coleridge said he was unable to comprehend that "one" was not a number. The Law Journal says "the decision is strictly in accordance with grammar, arithmetic, and the other elements of knowledge."

A real estate agent is not in a "professional employment." Pennock v. Fuller, 41 Mich. 153; S. C., 32 Am. Rep. 148.

The meaning of the word "file" was adjudged in Gorham v. Sommers, 25 Minn. 81. The court observed: "Irrespective of our statute, we think that an inquiry for the ordinary meaning of the word 'file' will lead to the same conclusion. 'File' meant, at common law, 'a thread, string or wire, upon which writs and other exhibits in courts and offices are fastened or filed for the more safe keeping and ready turning to the same.' Wharton's Law Lexicon; Bouvier's Law Dictionary. Within this definition, a paper might be said to be filed when strung upon the thread, string or wire. That particular mode of filing having almost entirely gone out of use, another mode of filing, the purpose of which is the same, has taken its place, so that, as Bouvier 66 says, a paper is said also to be filed when it is delivered to the proper officer, and by him received to be kept on file.' This, which we take to be the present ordinary sense of the word 'filed,'

would be presumed to be the legislative sense, unless the contrary is made to appear." Mr. Young, the reporter, bearing in mind that Chaucer was once a law clerk, hereupon bethinks him of Spenser, and accompanies the report with the following apt quotation from the Faerie Queene:

Dan Chaucer, well of English undefyled,

On Fame's eternal bead-roll worthie to be fyled.

Pigs were held to be "cattle," in Child v. Hearn, L. R., 9 Ex. 176, within a statute requiring fencing. The court said "the word is wide enough to include them."

The Iowa Supreme Court, in State v. Dunn, April, 1880, passed upon "previous chaste character," under the statute of seduction, holding that evidence of lewd acts of the complainant when a child was incompetent. The court said: "Improper conduct | occurring at so remote a time, when the prosecutrix was a child, would not tend to establish an impure character at the time she was seduced. If, as a child, she was indiscreet, immodest, or impure, she may have reformed and become a woman of chaste character. A woman who is unchaste may reform and gain a character for chastity within the meaning of the statute defining the crime of seduction.”

The same court, at the same term, passed upon "habitual drunkard," criticising the rule in Mahone v. Mahone, 19 Cal. 627, where the jury were instructed that the intoxication must be such as to "completely disqualify the party from attending to his business avocations." It was held in that case that this rule is too stringent, and that if there is a "fixed habit of drinking to excess, to such a degree as to disqualify a person from attending to his business during the principal portion of the time usually devoted to business, it is habitual intemperance.' In the principal case the court said: "This definition was sufficient for the case in hand, but we do not understand it to have been held that nothing

short of the standard fixed in that case would be. It is not regarded as necessary to affirmatively define what constitutes 'habitual drunkenness.' We are not prepared to say, however, if a person has a fixed habit of drinking intoxicating liquors to excess, is frequently drunk, and that such is his nominal condition during the night and in hours not devoted to business, that his wife would not be entitled to a divorce."

A clergyman's residence is not rendered "a building for religious worship," so as to be exempt from taxation, by the setting apart and occupation of one room as a chapel for religious worship. St. Joseph's Church v. Assessors of Taxes, 12 R. I. 19. On the other hand, the character of a building as a homestead is not impaired by the occupation of one or two rooms for business purposes. Hogan v. Manners, 23 Kans. 551.

A "lightning-rod man" is a "peddler." State v. Wilson, 2 Lea, 28.

Oysters are not "wild animals," and are the subject of larceny when planted. State v. Taylor, 27 N. J. L. 117.

ENGLISH AND AMERICAN BANKRUPTCY AND INSOLVENCY LAWS.

A

new

LIVELY and general interest on the subject of Bankruptcy and Insolvency has recently been awakened in England by the suggestion of a bankrupt law, and the introduction of several bills into Congress for the establishment of a general bankrupt law has provoked much discussion and inquiry on this side of the Atlantic. The history of the treatment of insolvents is one with that of the advance of civilization and the extension of personal liberty. In the year 1663 Justice Hyde was called upon to pronounce judgment in a case of imprisonment for debt, and he did so in the following words:

If a man is taken in execution and lies in prison for debt, neither the plaintiff, at whose suit he is arrested, nor the sheriff who took him is bound to find him meat, drink or clothes, but he must live on his own or on the charity of others, and if no one will relieve him, let him die in the name of God; says the law and so say I."

This statement of the law, conveying as it did bitter protest against its cruelty, led to the passage in 1670 of the first law for the relief of insolvent debtors.

But this law seemed intended only to relieve the debtor from starvation, for it allowed the creditor to keep him in prison by paying for his support, and his discharge still left the debt a lien upon his property.

The jails now became crowded with debtors, and their distress was so shocking that Parliament rushed headlong into legislation which added thirty statutes to the law, but conferred no benefits on the country.

Society had not yet learned to protect the weak from the strong, and not only among the barons but among the mercantile classes the law of might prevailed.

.

Down to the 4th and 5th of Anne payments were considered only tanto, traders alone had a right to discharge, and even they only when proceeded against in invitum. The idea of voluntary bankruptcy did not occur until a much later date, and a large class remained, who, without hope of relief and without the possibility of advantage from their own exertions, remained a burden and oftentimes a terror to the com

munity. Many of this class, rendered desperate by undeserved misfortunes from which they could see no escape, came to America, and became good citizens in the new world.

The first law which brought relief was known as the "Lords' Act," originated in the Upper House, and provided for a discharge from imprisonment of debtors held in custody for amounts under 100l., which amount was subsequently increased to 2001. Under this law a former execution could be enforced against a man's future acquisition of property, whether real or personal, but in the 16th and 18th of George III its provisions were made more liberal, and only real estate or money in the funds could be touched by prior execution. Upon this act our statutes for the relief of debtors have been modelled. From this point on, the advance toward an enlightened treatment of the commercially unfortunate has been marked and rapid, and the hopeless misery of the inmates of the Marshalsea, so graphically depicted by Dickens in "Little Dorrit,' was soon a thing of the past.

In 1813 a law was passed by which a debtor who had been imprisoned for three months could on full surrender of his property obtain release from imprisonment, and a court for the relief of insolvent debtors was established. By this court a judgment was entered in the name of all the creditors, which was a permanent lien on all the debtor's property until discharged by payment. This law applied, like its predecessors,

only to traders, but it provided for a pro rata distribution of assets, which was a long step forward.

It expired by limitation, but a similar act was passed which was in effect until a comparatively recent date. In 1838 arrest for debt was abolished for sums over 20l., an exception being made against debtors about to leave England, and a discharge from all liability to imprisonment on surrender of the debtor's effects was provided for.

This leniency was still further extended by the 5th and 6th of Victoria, and in 1861 the court for insolvent debtors was abolished, the bankrupt law was extended to non-traders, and the distinction between bankruptcy and insolvency was obliterated.

The present statute was passed in 1869. Its provisions as to what is an act of bankruptcy are much the same as those of our late statute, and may be covered by the statement that any act openly showing a debtor's inability to pay, or his attempt to evade his debts, is an act of bankruptcy. No discharge can be had unless fifty per cent has been paid or might have been paid, but for mismanagement, unless a majority in number and three-quarters in amount of the creditors 80 agree.

But this law, like ours, does not relieve him from debts contracted through fraud or tainted by fraud through fraudulent forbearance. Nor can he obtain a discharge from debts due the government or public revenue or bad bonds, unless the commissioners of the treasury consent thereto.

One judge and four registers from the ordinary Court of Bankruptcy in London and the judges of the superior courts of law and equity form an auxiliary court. The judges and clerks under this act are paid by salaries determined in amount by the chief judge and the commissioners of the treasury.

This provision stands in marked and admirable contrast with the system of fees which existed under our bankruptcy law, whose extravagance and the corruption engendered by it grew with its growth, and was checked only by its repeal. A clause in this act provides peusions for those who by the new order of affairs have been thrown out of employment, an act of humanity and justice we would do well to imitate here where long and honorable service is so seldom a safeguard against the undeserved privations.

Thus have grown and developed the English laws relating to debtors from a time when the unfortunate were subject to the greatest and most cruel oppression down to a period when a system was established which, however faulty and imperfect as a whole, embodies nearly all that humanity and justice can suggest.

The first trace of the New York insolvency laws is found in the statute of 1797, which provided for a discharge of the debtor from debts ex contractu by a composition agreed to by two-thirds of the creditors, but it was too far in advance of the age and lasted only one year, but it left footsteps on the sands of legislation and showed the way to enlightened enactments later on. The law which allowed a debtor's discharge on a three-quarter vote of his creditors prevailed a long time in New York, but was finally repealed. Its place was taken by a statute which permitted a debtor's discharge on surrender of his property. It was stigmatized by Chancellor Kent as an alluring bait to dishonesty, and was in less than a year stricken from the statute book.

The insolvency laws in New York now prevailing have much to recommend them, and were New York an isolated State might be sufficient. They provide for discharge from debts on consent of two-thirds of a man's creditors and also permit preferences in the payment of debts. They give the active creditor a better opportunity of collecting his claim, and do not allow the fraudulent creditor so easily to wipe out as with a sponge at one sweep his whole indebtedness.

At this point a word may be said of the distinction between bankruptcy and insolvency laws in general. In the abstract a distinction is well nigh impossible. Judge Cockburn, of England, defined insolvency as the state of the man who had brought himself under the operation of the insolvency laws, and bankruptcy that of the man who had committed an act of bankruptcy.

This apparent truism is supplemented by the remarks of the late Justice Story, who, speaking from an historic standpoint, says: "The lines between two systems are faint and an insolvency law frequently contains provisions common to bankrupt laws, and bankrupt laws may often contain the regulations generally found in insolvent laws."

The first act of Congress under its constitutional right to pass uniform laws was passed in 1800, and was repealed after three years, and the second endured only two years, from 1841 to 1843. The third act was passed in 1867, and after various amendments which served only to make it worse, it died in 1878.

Still its greatest faults were more in its defective machinery than in the ideas on which it was based, and even at the last it found friends to champion it. The system of fees made bankruptcy proceedings very burdensome to an estate, and this burden was further increased by the almost unlimited allowances and fees which unscrupulous lawyers obtained out of the assets.

The drain on account of this last item almost realizes the jest of a noted lawyer, who told an inquiring friend of his, in Liverpool, that he was going home because a client of his had died and he was afraid his heirs would get all the property.

The law to prevent fraudulent creditors from taking advantage of its provisions hedged them in with so many assumed safeguards that progress became at once difficult and expensive. Moreover it was found that few paths were left open to the unscrupulous, and that the labyrinth of procedure, through which debtors were forced to pass, impeded honesty more than fraud. Honest men found their assets eaten up by court and lawyers' fees, and saw with just anger the evident prosperity and wealth of those who had passed through bankruptcy, and who, within a year after making sworn statements of no assets, seemed, without labor, to have become possessed of the means of luxury. Besides this, the bankruptcy law was often used simply as a means of collection. The modus operandi was to obtain a rule to show cause why a man should not be adjudged a bankrupt, and an injunction issued stopping his business by forbidding him to sell any of his property; so that a firm often paid even when there was a good defense and ample assets, and allowed the legalized blackmail, for was it not much better to go on? The subsequent amendments narrowed the path for the voluntary bankrupt, but removed the necessity of his paying 70 per cent of his indebtedness on a second bankruptcy. The defects of the composition clause added another objection to the statute. When one spoke of the advantage of the pro rata division of assets, he was answered by the statement that as a rule there were no assets to pro rate. Statistics, so often used to overthrow a law, so seldom as a basis for its foundation, show that aside from preferences, assignments have given general creditors a much smaller amount of assets than bankruptcy proceedings. When the law was repealed in 1878, there was a general jubilation and its obituaries were far from flattering. The ALBANY LAW JOURNAL said: "Benefits will accrue to honest tradesmen and vigilant creditors from a restoration of the old state of affairs, and general law business will be increased so as to make it gratifying to the profession."

This statement might be regarded by the tradespeople, who like to keep out of law, as paradoxical,

but with the exception of the lawyers who make a specialty of bankruptcy practice, the majority of the bar favored the repeal.

The JOURNAL went so far as to lay the uncertain state of trade at the door of the bankruptcy courts, and made claim that solvent business houses, temporarily embarrassed, are destroyed by operation of this law, reference to which has been made, and that it made men careless in the contraction of debts, by making escape from them easy, and adds, "when an obligation can be discharged only by payment, most men are cautious about entering into it."

The JOURNAL represented the general feeling of lawyers at the time, who, disgusted at the faults and imperfections of the law, and the abuses existing under it, found it difficult to perceive its good points or to believe that its repeal would subject them to still greater evils. Such was, however, the case.

When the tide of bankruptcy matter, which had overflowed business and profession for some time previous and subsequent to the going into effect of the repeal, had ebbed, and people had an opportunity to observe and think, it was found that the position of trade in its relation to the law was worse than before; assignments were more bare of assets than were bankruptcies. In no two States are the insolvency laws the same, and the maze of conflicting decisions and incompatible provisions makes the endeavors of the most learned and experienced unavailing. The increasing intimacy of all trade relations between different States, which enterprise and the distance-conquering inventions of our age are promoting, makes it desirable to the mercantile classes to know their exact relation to each other; a thing impossible under the present laws. This fact of the diversity of laws increases vastly and entangles the complex character of commercial relations. It may be said that if the bankruptcy system was more expensive it was more expeditious, and if it encouraged some species of fraud it put a stop to preferential assignments. Its abuses ruined some sound establishments, but its six months clause prevented fraud that can now be perpetrated with impunity. The public have become restless under the present laws, and preferences do not suit those who do not find themselves preferred, and many are now of the opinion that the late bankruptcy law, instead of being repealed, should have been amended. The tendency of the American law is to favor the debtor.

In a land where individual exertion is the basis of so many fortunes, it seems contrary to the spirit of an enlightened charity to fetter a man by means of legal confiscation, or to break his spirit by the enervating idleness of a prison.

Perhaps we have gone too far, and the provisions which exist in Germany and France, discriminating against those whose books are incorrectly kept, and others similar, might well be enforced here. Three bills have recently been presented to Congress to establish a uniform system of bankruptcy law. One drawn by Judge Lowell, of Massachusetts, and another by Mr. Blumenstiel, of this city

The probability is that a combination embracing the best features of these bills, which in the judgment of the judiciary committee and their advisers will tend to aid the debtor, while it protects the creditors, and to lower the expenses while increasing the effective workings of the legal machinery of bankruptcy law, will, within a year or two, be passed.

The English have just arrived at the point of dissatisfaction which we reached in 1878. The English law is complicated by the existence of a distinction between petty debtors and others, between whom a wide distinction is drawn on the matter of imprisonment and of their standing before the courts.

To the complaint of traders that the present law does not protect them from fraudulent debtors, we

may answer that no law could be passed which would prevent fraudulent debtors from imposing on honest men, unless we should concoct a law that like the Roman law, gave the debtor's body to the creditors for a proportionate distribution among them. But the question upon which there is the most debate is the expediency of relieving small debtors from imprisonment. Mr. Stonor, one of the English county court judges, has gone so far as to maintain that to free the petty debtor from the possibility of imprisonment would be to strip him of all credit, maintaining that without that provision no one would trust him and that in time of adversity, which credit would enable him to struggle through, his only refuge would be the work-house. It may also be urged that if all fear of imprisonment were taken away, fraudulent debtors would run riot with those who gave them credit. At the same time the present law tempts tradesmen not only to give but to urge credit, because they think they have an all-sufficient remedy in case of non-payment. Their confidence betrays the poor into extravagance and allures the weak or the unscrupulous. The evils of the present law fall more heavily on the honest than on fraudulent debtor, as the latter knows how to escape legal penalties, or if imprisoned, does not mind an incarceration which enables him to indulge his love of idleness. The best law that could be passed would seem that which would tend to prevent an imprudent class from contracting debts at all. Free credit is apt to put a poor man on the wrong side of that scale of happiness and misery that Mr. Micawber tells of, while cash payments leave a balance of income in his favor. It may be hard in England to do away with this last vestige of the right of imprisonment, but the time has come for the clearing out of a great many old cobwebs from the English law, and a man who represents progress is master of the house. Therefore when, as is anticipated, the attorney-general introduces into Parliament a bankruptcy law, it may be expected that there will be many changes, though it is to be hoped that it will be more in the nature of an amendment than of an entirely new bill. The English laws, unlike ours, favor the creditor. The pro rata system prevails in England, while preferences are permitted and largely taken advantage of here.

Our laws differ, and in States whose boundaries, commercially considered, are blotted out, while the English law holds good from Carlisle to Lands End, and should include Ireland and Scotland. The law which would meet with the most general approval would resemble the late bankruptcy law in its pro rata distribution of assets, and which like it should be general in its jurisdiction. Its working should be like those of the English law, easy and inexpensive, while unlike that system it should be lenient to the debtor and should permit no imprisonment except for fraud. It should protect the creditor without oppressing the debtor, and the court should have such equity powers as to enable it to scrutinize closely every effort on the part of dishonest men to prostitute the law to their own advantage. And it is to be hoped that after two hundred and fifty years of experimenting, a law may at length be passed whose provisions may endure long enough for thorough adjudication, and when adjudicated may remain perpetual.

EDWARD R. JOHNES.

RIGHT OF INDIVIDUALS TO INSPECT AND COPY PUBLIC RECORDS.

MICHIGAN SUPREME COURT, JUNE 9, 1880.

WEBBER ET AL. V. TOWNLEY.

Relators desired to make a complete abstract of the conveyances recorded in a Michigan county registry office for the purpose of private emolument in carrying on an