NOTE ON THE PENAL CONSEQUENCES OF LAWS OF ENGLAND AND THE UNITED [Contributed by E. W. HANSELL, ESQ.] Number of Offences Compared.-The United States Bankruptcy Law of July 1st, 1898, as amended by the law of February 5th, 1903, contains in s. 29 a list of five "offenses" relating to misconduct by a bankrupt and other persons in connection with the bankruptcy. The maximum penalty for these is two years' imprisonment, and the indictment must be found or the information filed within one year after the commission of the "offense." As against this, the English Acts-viz., the Debtors Act, 1869, and the Bankruptcy Act of 1883-emunerate no less than sixteen misdemeanors and one felony for which the maximum penalty is two years' imprisonment with hard labour, and three misdemeanors punishable with the maximum of one year's hard labour. All these offences may be committed by any person, whether a trader or not, in respect of whose estate a receiving order has been made, and the three last mentioned by any person whatever. In addition to these crimes it is made a misdemeanor for an undischarged bankrupt to obtain credit to the extent of £20 or upwards from any person without informing such person that he is an undischarged bankrupt; but, oddly enough, although the provisions of the Debtors Act, 1869, are applied to this crime, and the bankrupt "may be dealt with and punished as if he had been guilty of a misdemeanor under the Debtors Act, 1869," it is not stated in the Act whether the maximum penalty is to be imprisonment for one or for two years.1 A false claim also by a creditor, made wilfully and with intent to defraud, is made punishable with imprisonment not exceeding a year with or without hard labour. In the American Statute the crimes enumerated must from their nature have been committed after the filing of the petition, but in this country it is sufficient in the case of nine of the misdemeanors and the felony above mentioned that the act has been committed within four months next Since the above was written the point has arisen, and it has been held that the maximum penalty is one year (Rex v. Turner, 20 Times Law Reports 67). before the presentation of the petition; and further, as above mentioned, it is with us a misdemeanor for any person at any time to obtain credit under false pretences or by fraud, or to make a gift, delivery, transfer of, or charge on his property with intent to defraud his creditors, or with a like intent to conceal or to remove any part of his property since or within two months before the date of any unsatisfied judgment or order for payment of money obtained against him. What are Bankruptcy Offences in the United States.-The five "offenses" in the American Statute are, shortly :: (1) Concealment of property by a bankrupt; (2) Making false oaths or accounts in or in relation to any proceeding in bankruptcy; (3) Presenting a false claim for proof in a bankruptcy or using any such claim in a composition personally or by agent, proxy, or attorney, or as agent, proxy, or attorney; (4) Receiving any material amount of property from a bankrupt after the filing of the petition with intent to defeat the Act; (5) Extorting or attempting to extort any money or property from any person as a consideration for acting or forbearing to act in bankruptcy proceedings. It is of the essence of these acts that they should have been done "knowingly and fraudulently." Adaptation to England.-Items (4) and (5) do not appear in the English Statutes, and unless (4) was limited so as to exclude creditors who, e.g., may receive undue preferences, it would not seem a desirable addition to our Statute-Book. But, with proper limitations, it is submitted that it would be useful to have some positive enactment with regard to people (other than creditors receiving the amounts of their debts) who may aid or abet a bankrupt to make away with his property, and to forbid such conduct under pain of the criminal law. It is suggested also that something in the nature of clause (5) would be advantageous to administration in bankruptcy, for during the last decade or so there have been cases reported in our lawbooks which show that a strengthening of the law in the direction of the matters covered by clauses (4) and (5) would be desirable. It would seem, however, that penal enactments in bankruptcy should chiefly be concerned with the acts and defaults of the bankrupt himself, which are very fully dealt with by the present English legislation, and the multiplication of crimes is no doubt to be avoided as far as is consistent with the efficient working of the law. Nor must it be forgotten that there are civil consequences of bankruptcy, such as disqualification for various offices, refusal or suspension of a discharge, and the prevention or restriction of dealing with a bankrupt's property, which makes the bankruptcy law of use both as a deterrent and as a means of punishing persons guilty of business misconduct, or living at the expense of others. Trustees in Bankruptcy.-But next, perhaps, to the bankrupt himself, the person about whom a bankruptcy law should be specially concerned would be the trustee whose duty it is to protect the interests of the creditors. The wide powers and effective control vested in the Board of Trade under the present English system, vigorously used, have done much to bring about honest and efficient administration of bankrupts' estates by the trustees appointed to administer them, and to safeguard the interests of creditors. But it may be worthy of consideration whether any future legislation on this subject might not well include an express enactment similar to that contained in the United States law, which makes it criminal for a trustee to have "knowingly and fraudulently appropriated to his own use, embezzled, spent, or unlawfully transferred any property, or secreted or destroyed any document belonging to a bankrupt estate which came into his charge as trustee." For the efficient working of a bankruptcy law it is essential that those for whose benefit it is intended, the creditors, should have confidence in those who have to administer the estate, and so long as administration is permitted by other than State officials-and it is not suggested that it is desirable that in all cases State officials should wind up bankrupt estates, or that the present system should in this respect be changed-nothing should be omitted which may help to maintain and to justify that confidence. AN ITALIAN VIEW OF THE LAW OF TORTS.1 [Contributed by M. SHELDON AMOS, ESQ.] Continental Neglect of English Private Law.-There is no subject which has excited more fruitful interest among continental jurists than that of English public law; there is none, on the other hand, which has been hitherto treated with greater neglect in the same quarters than English private law. In spite of the enlightened curiosity which prevails in France, Germany, and Italy with regard to the domestic law of foreign countries, however far afield, for some obscure reason that curiosity stops short on the frontier of the English language, and few and rare indeed are the evidences of any first-hand research by foreign writers into any of what we would have supposed to be the highly suggestive and distinctive legal institutions of England and America. The "trust" idea, with its numerous and diverse developments, the law of injunctions, specific performance, the doctrine of estoppel, are for continental scholars as yet unexplored fields-so far as the investigations of the present writer extend. It is not easy to account for this obstruction of the field of vision. What are the conditions of demand and supply which produce monographs unnumbered on such recondite topics as the marriage customs of the Basques, the bankruptcy laws of the Argentine Republic, the place of the judiciary in the American Constitution, or the history and working of the Habeas Corpus Act, and yet, so far as we are aware, have never brought forth a critical study of the Anglo-American conception of the trust ?2 Much of this neglect is due to the prevalence of the notion that English law exists in a wholly inaccessible form; much to mere ignorance of the existence in modern Anglo-Saxon law of any peculiar or interesting institutions; but we believe that the chief explanation is to be found in 1 La Nozione del Torto nella dottrina et nella giurisprudenza inglese, p. ix. 83, Mario Sarfatti, assistente all' Istituto Giuridico presso la Reale Università di Torino (Milano, Società Editrice Libraria, 1903). 2 A considerable amount of information is contained in Lehr's Eléments du Droit Anglais; but it attempts to deal in a book of moderate dimensions with the whole body of English private law, and does not aim at being more than an uncritical précis of the principal rules of law. the widespread belief that the effect of the special authority attached by us to judicial precedent is to banish from our private law all legal principle. In view of the prevalence of this attitude of mind among the legal scholars of the Continent, it is with more than common interest that we welcome Signor Sarfatti's luminous monograph. Nor are we surprised to note that this new departure comes from the University of Turin, at the present time one of the most active circles of intellectual life in Europe. Signor Sarfatti's "Torts."-Signor Sarfatti has chosen for the field of what we hope will prove to be but his first voyage of discovery into the domain of English law, our law of tort, as to which he rightly thinks that it is one of the most original parts of our system; indeed, he goes so far as to say that "the building up [for modern law] of the conception of tort is the exclusive work of English jurists." In this connection it is of interest to note that the brilliant author of the most recent commentary on the French Civil Code, Professor Planiol, announces the surprising discovery that the law of tort has been treated by previous French writers with unmerited and surprising neglect. Dismissed by the Code in five articles, it has been silently developed to ample proportions by the decisions of the Court of Cassation; but this development has passed unnoticed by teachers and book-makers. "Aucun jurisconsulte n'a catalogué les obligations dont les hommes sont tenus de plein droit et en l'absence de tout contrat, à l'état d'obligations juridiques, opposables aux simples devoirs moraux dont la loi ne tient pas compte. Ce travail n'est pourtant pas infaisable. Il existe déjà à l'état d'étanche dans les décisions de la Cour de Cassation. . . . En parcourant ces arrêts, on dresserait une liste déjà riche d'obligations légales donnant lieu à des contraventions connues sous le nom de fautes." 1 "1 Plan of the Monograph.-In Section I. of his monograph Signor Sarfatti sets before his readers the peculiar claims which the English law of torts has upon their attention. In Section II. he investigates the fundamental principle of tortious liability in our law, and comes to the conclusion that the test of wrongful action is essentially a blameworthy will, or lack of will. In this connection it is curious to note that the writer appears to assume that a tort is par excellence a negligent wrong-in other words, that our law of torts is pre-eminently concerned with the definition of culpa. This is to lose sight of the essential unity of a system which embraces both negligent and malicious wrongs, and by no means assumes that Cf. Planiol, Traité Elémentaire du Droit Civil, ii. § 865. These remarks are applicable, mutatis mutandis, to all those countries which have adopted, in substance, French law, with its lack of definition of the antecedent duties the breach of which constitutes a tort. The new German Code starts from the opposite principle, and devotes thirty-one articles (Arts. 823-853) to the definition of antecedent duties, and the grounds of non-liability and of derivative liability. As contrasted with the wealth of English principle, this is meagre; but it differs from the Latin system in furnishing an exclusive, if abstract, enumeration of the sources of tort. |