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Proceedings for Repealing the Certificate Duty.-Notes on Equity.

3. It will be expedient to provide the Norwich. secretary with letters which may be trans- Pickering. mitted to the Members when the principle Plymouth. of the bill is to be brought under considera- Retford, East. tion, in order to ensure a favourable division when that question comes on.

Ruthin.
Rye.

St. Helen's.

Shaftesbury.
Sheffield.

4. The injustice of the tax should be strongly set forth. "Reasons in support of the repeal" should be submitted to every Shrewsbury. member. Our representatives, who have so many subjects to consider, are slow to un

Somerton & Langport.
Southwell.
Stamford.

derstand the details of any of them. The Stokesley.
claim to redress must be made palpable and
irresistible.

Stone.
Sudbury.

Thirsk.
Tiverton.
Torrington.
Towcester.
Uttoxeter.
Wakefield.
Walsall.
Wareham.
Warrington.
Wellington.
Wells.

Whitehaven.
Wigan.
Wimborne.
Weston-on-Sea.
Wincanton.
Wolverhampton.
Wrexham.

453

List of members who have presented petitions:

Mr. Bankes.
Mr. Barkly.
Mr. Benbow.

We have one word to say as to the speed Sutton Coldfield. with which measures of this extensive nature Tenterden. are expected to be conducted. A few in- Tenbury. dividuals, junior members of the profession, of a moderate amount of practice, may find time to meet and come to very rapid con- Sir Thomas Ackland. clusions; but large bodies of men, whose Col. Anson. leaders are much occupied, and scattered Mr. Bailey. over a large space, cannot readily assemble and act with "infinite promptitude." The business of clients cannot be instantly laid aside, and the business of the profession taken up exclusively. We are sure that much pains and labour have been, and will be, bestowed by those who are engaged in the present movement, and we hope they will be cordially assisted both in town and country, and that the result will be as satisfactory as can be rationally expected. List of places from whence petitions have been presented:

Abergavenny.

Halstead.
Haverfordwest.

Easingwold.

Aberystwyth.

Ashburton.

Ashton-under-Lyne.

Axbridge.

Ely.
Epworth.
Exeter.
Gainsborough.

Barnard Castle.

Gosport.

Barnsley.

Barton-on-Humber.

Barnstaple.

Bawtry.

Hinton.

Berwick-on-Tweed.

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Hereford.

Honiton.

Horbury and Ossett.

Huddersfield.
Kirton-in-Lindsey.
Kidderminster.
Kingston-on-Hull.
Lancaster.
Leominster.

Llandilo.

Lymington.
Macclesfield.
Market Drayton.
Molton, South.

Monmouth.

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SOLICITORS' LIEN ON BOOKS.

THE lien of solicitors on the deeds, papers, and securities of their clients and on the fund in court or other monies for the costs due to them, has been established by numerous decisions, not only with regard to the charges applicable to such deeds, papers, or monies in particular, but for their charges in general.

In a case recently reported, the solicitors claimed a lien on the copies of a very expensive work which had been delivered to them for the purpose of being produced to the witnesses on a trial, for the supply of paper for the work, and payment for which had been refused, on the ground that it of was a very inferior quality.

Mitchell v. Oldfield, 4 T. R. 123: Hollis v. Newcastle-under-Lyne Claridge, 4 Taunt. 807; Stevenson v. Blackelock, 1 M. & S. 535; Exparte Moule, 5 Mad. 462; Worral Johnson, 2 J. & W. 218.

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454

Notes on Equity.-Bankruptcy and Insolvency Law Amendment.

The lien was claimed for the costs of defending under which the arrest would be effected only

the action.

It was contended, in opposing the applicacation, that the lien did not extend to articles, such as books, as in the present case, or models or machines, delivered to solicitors for the purpose of being exhibited to witnesses or a jury: The Vice-Chancellor said, that the books tended to manifest the defendant's right to defeat the plaintiff in the action, and therefore he could not but think that the solicitors had a lien upon them.

by the order of a Commissioner of the Court of
proof of the existence of a bona fide debt of 201.
Bankruptcy, to be obtained upon satisfactory
or upwards, and of payment having been twice
demanded within a limited period previously to
the application for leave to arrest.
be brought before the Commissioner, who
"Immediately upon arrest, the debtor would
would be empowered, after examination of the
parties, to discharge the debtor from custody,
either unconditionally, or upon payment of a
sum of money into court, or upon his finding
bail to such amount as the commissioner might
direct. He would also be entitled to his re-
lease upon his signing (if he should be liable to

BANKRUPTCY AND INSOLVENCY the Bankrupt Laws) a declaration of insolvency,

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or petitioning the Court of Insolvent Debtors for relief.

66

following measures for securing punishment to Secondly.-The committee recommend the the fraudulent and dishonest debtor :

"To give to the commissioners absolute discretion at any time to refuse or withdraw the protection which every bankrupt now obtains as a matter of course immediately upon his surrendering under the fiat.

tection compulsory upon the court when the "To render the refusal or withdrawal of probankrupt shall fail to show that his bankruptcy has arisen otherwise than from fraud, gambling, wilful misconduct, or extravagance; or in case of concealment, or making away with his property or books, contracting debts without reasonable expectation of ability to pay them, and for other offences which are now by the present Bankrupt Law punishable as felonies or misdemeanours.

"To give to the creditors who have proved their debts, and to the assignees for the whole amount of debts admitted to be due by the bankrupt, the power of judgment creditors to take the person of the bankrupt in execution when thus deprived of protection: and, in case of such execution, the bankrupt shall not be entitled to his release for a period not exceeding three years (the maximum period of remand possessed by the Insolvent Debtors' Court,) except by order of the commissioner who withdrew the protection.

"The Metropolitan Committee submit the following summary of the alterations they propose for remedying these evils, and for improving the Law of Bankruptcy and Insolvency; and in so doing, they are desirous it should be understood that their object is not to punish all debtors indiscriminately, but rather, by ensuring the punishment of the reckless and "As an inducement to creditors to underfraudulent trader, to place in relief the conduct take, when circumstances require it, the crimi of those who may apply to the court under the nal prosecution of fraudulent bankrupts, the pressure of misfortune to assist them in a fair committee propose to throw the expense of distribution of their property amongst their criminal proceedings on the country, instead of creditors. To accomplish this, the committee on the estate. It is manifestly unjust that cre desire to make the administration of the Bank-ditors, already injured by the loss of their prorupt Laws so efficient that they may be uni-perty, should be called upon to pay the exversally resorted to, as well for the benefit of penses-generally heavy, of a criminal prose the debtor as for that of the creditor. With cution, especially as in such cases there is little this view it is proposedor no dividend for them. The practical operation of the present system is, that indictments are scarcely ever resorted to, and that the rogue escapes the punishment he deserves.

Firstly. To restore the law of arrest for debt upon mesne process, with ample precautions against the abuses which prevailed under the old law.

"For this purpose, the committee adopt the drovisions of a bill brought into the House of Commons by Mr. Warburton, in 1846,

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Thirdly. In order to make the present proceedings upon the summons of a debtor before the Court of Bankruptcy more effective, and to give greater protection to the property

Bankruptcy and Insolvency Law Amendment.

455

books, to prepare, with the assistance of the bankrupt, this important document. The balance sheet would then be based upon the bankrupt's accounts, and the creditors could rely upon having a trustworthy statement, the preparation of which by the official assignee would ensure their having accurate knowledge of the bankrupt's transactions.

of the debtor for the benefit of the creditors, it is proposed to simplify the notice and affidavit preliminary to obtaining the summons; to facilitate the service of both the notice and summons, and to require upon the debtor's appearance thereupon, additional evidence of having a good defence to the claim beyond his own affidavit. It is also proposed to require security by bond, with sureties, for the protection of "The committee are anxious also that the his property during the 14 days' interval al- creditors' assignees should have the right of lowed between the appearance upon the sum-selecting the official assignee to act under each mons and the act of bankruptcy, and in default bankruptcy (the commissioner, upon the adof such security, or upon the non-appearance judication, first appointing one provisionally,) of the debtor on the summons, to empower a a step which they consider would tend to the person to be named by the court to take charge appointment of the most efficient persons for of his property as the court should direct, until this important office. he can be made bankrupt.

"Fourthly. It is the desire of the committee to facilitate as much as possible the administration of the estates of insolvents in the Court of Bankruptcy, and for this purpose to remove all unnecessary sources of expense, trouble, and delay. They desire to abolish the fiat, and to give to the Court of Bankruptcy original jurisdiction to declare a party bankrupt upon proof of the present requisites, viz., the petitioning creditor's debt, and the trading, and act of bankruptcy by the debtor.

"The committee see no advantage whatever in the present fiat, while it entails upon the creditors delay, trouble, and expense.

"It is proposed that the heavy payments made to the court should altogether cease. 40. are now paid in every bankruptcy, besides smaller amounts, which are applied in discharging the salaries of the commissioners and officers of the court, compensations to those who have retired, and for the support of the building. It is thought that the maintenance of this branch of judicature ought to be borne by the State outof the Consolidated Fund, in the same manner as that of the courts of law and equity, [qy] and the Insolvent Debtors' Court. The large sums already accumulated for this court, under the denomination of "the Secretary of Bankrupts' Fund," and the "Secretary of Bankrupts' Compensation Fund," might be transferred to the State.

"In bankruptcies constituted by the debtor himself, it would operate as a check upon fraud were the court to have authority to nominate the solicitor, instead of his being chosen by the bankrupt; clauses to this effect have been drawn by the committee.

"The public are fully aware of the inconvenience and loss of time experienced by credi tors in consequence of the number of meetings held by the commissioners on the same day. It is much to be desired that a greater number of days in the week were devoted to the public business, and consequently more time allowed for the sitting in each case. It is proposed to remedy this evil by the periods of the sittings of the commissioners being defined by the act.

"Fifthly. With a view to afford further information upon the affairs of bankruptcy, full and ample annual returns are to be called for of the proceedings and results of each bankruptcy, showing, among other things, the amount of debts and liabilities, and the assets collected and divided in each case.

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Sixthly.-Under the existing law the pay, half-pay, and pensions of bankrupts are not available to the creditors: this is intended to be remedied by giving the Court of Bankruptcy the same power to order periodical payments thereof to the creditors, as the Insolvent Debtors' Court now has.

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Seventhly. Considerable difficulty and loss is often experienced by creditors upon the "In order still further to reduce the expenses deaths of traders, when no executor or admiwhich press most heavily on the business of nistrator is appointed: the committee propose this court, particularly upon the small estates, to deal with this class of cases by empowering it is proposed to alter the mode of remuneration the Court of Bankruptcy, after due notice now made to the official assignees. At present given, to place a party in possession of the they receive a per centage upon the gross sums collected, and an additional per centage upon the amount divided, the rate being in each case at the discretion of the commissioner.

"The committee are desirous of paying these officers by a liberal commission upon the amount divided alone, and that by a scale to be determined by parliament.

"For the purpose of improving the system of getting up the bankrupts' balance sheets, which in a very large class of cases are concocted with the intention of concealing fraud and misleading the creditor, it is proposed that it should be the duty of the official assignee, who must have possession of the bankrupt's

property, and if no legal personal representative should be nominated within 12 months, then that the official assignee should obtain administration, and proceed to distribute the effects as under a bankruptcy.

"Eighthly.-The committee have considered the subject of compositions, and other modes of arrangement between debtors and their creditors, and are of opinion that it would be attended with considerable benefit if they were effected with the sanction of the Court of Bankruptcy, and the concurrence of three-fourths in number and value of the creditors be made binding upon the remainder. It is not desired that public advertisement in the "Gazette "

456

Chancery Fees and Compensations.-Administration of Oaths in Chancery Bill.

and newspapers should be made of these arMr. Aglionby opposed the motion. It was on rangements; but as it would be very advan- his proposal that the committee's inquiries had tageous that the commercial world should have been extended, as stated. He had given notice the means of ascertaining the existence of all of his motion to that effect, and when brought transactions of this nature, the committee pro- forward it was agreed to without opposition. pose that a registration should be made of all The petitions which had been in consequence deeds of this description between the debtor referred to the committee embraced two suband creditor, which should comprise full par-jects :--the amount of fees and their appropria ticulars of the arrangements entered into. A tion. The first point clearly came within the registration also of all bills of sale and mort- scope of this committee, and he should never gages to creditors is provided for, which it is rest until he obtained an inquiry into that hoped will, to a great extent, check the prac- gross business, the appropriation of the fees. tice, now so often resorted to by dishonest In this inquiry no one was more interested debtors, of secretly making over their effects to than the learned judges who fixed the compen friends for their own benefit and to the injury sations. of their creditors. Clauses to give effect to these views have been prepared.

"The above amendments have been engrafted upon the Bill for the Amendment and Consolidation of the Bankrupt Laws, which was presented to the House of Lords by the Lord Chancellor in the last session of parliament, and which contains some of the provisions suggested by the committee.

"The committee feel convinced that the measures which they have thus recommended, by affording additional and effectual remedies to the creditor for the recovery of his just debts, by holding out more certain punishment to the fraudulent and wilfully improvident debtor, and by giving increased efficiency and utility to the Court of Bankruptcy would, without operating harshly and oppressively upon the honest but unfortunate debtor, bring about! that sound and wholesome system of commercial dealing, the want of which has been so long experienced.

Sir G. Grey said, the committee had been granted on the express understanding that the compensations should not be made a part of its inquiry. Afterwards that object had been added, he believed, inadvertently; and it would be most inconvenient if the order for referring the petitions alluded to should not be dis charged. Afterwards, the hon. member might either move a separate committee on these pe titions, or bring forward a motion in reference to the whole subject of the compensations.

Mr. Hume hoped that a new reference would be made to the committee, embracing the whole inquiry; and on this ground he would not op pose the discharge of the order.

Mr. Ewart also acquiesced in the course sug gested by the right hon. the Secretary for the Home Department.

Mr. J. Stuart said, he understood that great benefit was likely to be derived from the more limited inquiry of the committee: he was there fore opposed to mixing up with it other matters. Mr. Baines said, that neither the profession

FEES IN COURTS OF LAW AND EQUITY nor the public would be satisfied without the

AND CHANCERY COMPENSATIONS.

DEBATE IN THE HOUSE OF COMMONS.

fullest inquiry. He hoped the hon. member for Cockermouth would not allow a day to pass without putting a motion on the notice-book for a committee to inquire into the matter fully. The grievance was one which pressed on every one who had the misfortune to get into Chancery; and the feeling of the profession was universally against it. The gentlemen who had obtained this compensation ought themselves to demand the inquiry. For several years before 1842, it was said they had concealed the amount they received, lest the Chancellor should fir their allowances lower. The fact of itself called for inquiry.

The motion was then agreed to.

ADMINISTRATION OF OATHS IN
CHANCERY BILL.

Tuesday, March 2, 1848. Mr. Romilly moved to discharge an order, referring to the committee on fees in courts of law and equity, all petitions presented to the house praying for inquiry into the fees imposed upon suitors in Chancery, in pursuance of the powers contained in 5 & 6 Vict. c. 103. The object of the committee as appointed was to inquire into the fees now payable in the Court of Chancery, and to recommend the most desirable reforms; but not to meddle with the compensations that had been awarded to the six clerks. Subsequently a motion had been agreed to, sub silentio, extending the committee's inquiry to the latter object, of which he disapproved, the compensations in question being subject to the inquiry of the Lord Chancellor; and therefore he brought forward the present motion, with the view to reverse a decision which had been obtained from the house It recites, that by the 5 & 6 Vict. c. 103, the unawares. He thought the compensation de- clerks of enrolments in chancery and the clerks cidedly too large; although the act under of records and writs were empowered to adwhich they were granted had been a very great minister oaths and take affirmations and attes benefit to the suitors, still that benefit had been tations of honour: and that it is expedient that purchased too dear. An inquiry might be ne- the clerk of enrolments in chancery and clerks cessary, but it ought to be a separate inquiry, of records and writs should be empowered to and not mixed up with the objects of the ex-take such declarations as herein-after menisting committee. tioned: And that by the 10 & 11 Vict. c. 97, it

THIS is a bill to empower certain Officers of the High Court of Chancery to administer Oaths and take Declarations and Affirmations.

Meeting at Lyon's Inn Hall.-Certificate Duty.-Taxes on Justice.

457

was amongst other things enacted, that certain tificate Duty for the country attorneys-an duties theretofore done and performed by the unheard-of practice in the history of retainers! masters in ordinary in the public office should Whether the bar-mess, so nice on circuit, will thereafter be done and performed by the clerk take cognizance of his ambiguous introduction of affidavits and the assistant clerks of affi- to the notice of the practitioners, remains to be davits in manner directed by the said act, and seen. a second assistant clerk of affidavits was appointed under the said act:

That is is expedient that the clerk of affidavits and assistant clerks of affidavits respectively, shall be impowered to administer such oaths, and take such declarations and affirmations, and attestations upon honour, as hereinafter mentioned:

It is therefore proposed to enact,

1. That it shall be lawful for every clerk of enrolments in chancery and clerk of records and writs to take any declaration required for the purpose of enrolling any deed or other document in chancery.

2. That it shall be lawful for every clerk of affidavits and assistant clerk of affidavits of the high court of Chancery to administer all such oaths, and take all such declarations, affirmations, and attestations upon honour, as can now be administered or taken, or at any time hereafter may by any act of parliament be directed to be administered or taken, by or be fore a master in ordinary of the said court.

3. Persons swearing or declaring before such officers to be subject to such penalties for perjury.

4. That as often as the second assistant clerk of affidavits or any of his successors shall die or resign or be removed from his office, the Lord Chancellor shall have power to appoint a second assistant clerk of affidavits in the room of such one who shall so die, resign, or be removed.

[This bill will afford a favourable opportunity for introducing a clause to enable attorneys and solicitors in London to administer oaths as masters extra, and thus facilitate equity business. The convenience to persons having to make affidavits will thus be promoted. Men of business will then be able to swear their affidavits at any time near their own homes, instead of coming to Southampton Buildings, within limited and often inconvenient hours.]

MEETING AT LYON'S INN HALL.CERTIFICATE DUTY.

MR. EDITOR,-I have perused with much satisfaction your article of last week, reprobating the numerous attacks of a contemporary law periodical on the Incorporated Law Society, -attacks which, I observe, have been subsequently reiterated. I have also read the letter from a town member of the society, in which I entirely concur, echoing, as it does, the opinions of the London profession. There are, however, some further points to be considered, which, perhaps, do not so much affect the junior as the senior grade of the profession, but which, nevertheless, demand your serious attention.

The most prominent objection appears to be, that the editor of the paper alluded to has retained himself as standing counsel In re Cer

Is it not extraordinary that a member of the higher branch of the profession should convene and conduct a meeting of attorneys, and lecture them on the certificate duty? Are they so incapable of judging of their own grievances, and so feeble and powerless in stating them, that they need the aid of a learned counsel to call them together and point out the means of redressing their wrongs? If this advocacy were heard within the walls of parliament from the fifty gentlemen of the long robe who sit therein, it might do some good, but an exhortation addressed only to a very small body of the sufferers, congregated in Lyon's Inn, seems vox et præterea nihil.

The learned editor, however, claims the merit of having been the legal poker that has at length stirred up the fire of the profession against the impost;-of having been the first who taught the profession that they did not like the tax,-that they should endeavour to obtain its repeal,-that they should sign petitions,and that-last and not least-the whole machinery of his office, publisher and boy included, should be placed at the disposal of the agitators! "The force of patronage can no further go." INTUTA QUÆ INDECORA.

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