90 Attorneys' Certificate Duty.-Amendment of the Bankrupt Law. having taken place but a few months ago, the Finance Minister,-occupied incessantly with the business before him,-considered it unnecessary to appoint another meeting before his parliamentary statement. to entertain the question. At all events, an early interview with the Chancellor of the occasion appears to be fitting for re- the Exchequer, and that nearly three weeks newing the struggle, and we are satisfied before the financial statement Lord Robert the Incorporated and other Law Societies applied for an appointment to receive a dewill not only take an active lead in the putation. It appears that, an interview movement, but seek an early opportunity of pointing out the mode in which it can be most advantageously furthered by individual exertion. In a cause, the justice of which is so manifest, there can never be any excuse for supineness, and still less any No doubt there will be no time lost in reason for despair. The cause must be suc- pressing forward the question. The Bill cessful, and whether the success is imme- for the abolition of the Impost ought to be diate or postponed depends in no incon- brought in before the Christmas recess, and siderable degree upon the judgment as well there is every reason to expect that such as the perseverance with which it is pur-will be the case. sued. AMENDMENT OF THE BANKRUPT CLASSIFICATION OF CERTIFICATES. Although the Chancellor of the Exchequer, in canvassing the various claims of the shipping, sugar, and agricultural interests, was silent on the demand made by IT has already been observed, that the 10,000 members of the Legal Profession, he statement made by the Lord Chancellor in could not avoid (in reference to the other calls the House of Lords, on the 16th November, on his justice), to admit, emphatically and in reference to the measures of legal imrepeatedly, the very principle on which the provement about to be introduced, appears attorneys and solicitors claim to be relieved to have been misunderstood by the reporters from an oppressive and anomalous burthen, -borne neither by the Bar nor by the medical nor clerical professions, nor by architects, engineers, or any other professional class. Perusing attentively Mr. Disraeli's speech, we find the following passages, which seem to us clearly and distinctly to admit the grounds on which the tax ought to be repealed: in various, and not unimportant, particulars. Those who were fortunate enough to have heard the statement made by Lord St. Leonards, concur in describing it as remarkable for clearness and conciseness, but matters of detail can hardly be reported with accuracy, unless the art of reporting is combined with an adequate knowledge of the subject under discussion. In considering how it happens that the "Nothing is more prejudicial to the country business of the Court of Bankruptcy has generally than that considerable classes of her fallen off-so that the fees received in Majesty's subjects should consider that they respect of business in that Court are inare liable to regulations injuriously affecting sufficient to meet the expenses, the Lord their industry, and from which the rest of the Chancellor observed, that one of the reacommunity is free." * "Therefore, if there be on the part of the shipping body, or on the part of any other class in this country, well founded claims to the consideration of Parliament, it is highly expedient, not only to the interest of public morality, but from the most utilitarian consideration that could possibly occur to the most unsentimental minds, that we should enter into these questions, ascertain their merits, and decide accordingly." sons assigned for the decline of business was, "that the system of giving different classes of certificates operated as a stigma upon the trader." This subject was discussed with great eloquence and ability by Lord St. Leonards, who explained to the House, in precise terms, the extensive power given under the 198th section of the Bankrupt Law Consolidation Act to the Commissioners in granting or withholding certificates, and the difficulties imposed upon them by reason of the form of certificate directed by the Act. So far, the reporters appear to have given expression to We understand that at the commence- his lordship's sentiments with entire acment of the present Session, the Incorpo- curacy; but when he proceeds to state how rated Law Society suggested to Lord Ro- the evil is to be met and remedied by the bert Grosvenor the expediency of procuring alteration of the law, the report becomes "That all real grievances may be remedied, that we shall cease to hear of the claims of a particular interest as subject to burdens and vexations from which the community are free." Amendment of the Bankrupt Law-Classification of Certificates. 91 the bankrupt, including his personal conduct, and to scrutinise it in a way which has led to very great objection on the part of many persons to enter the Court. I propose to repeal so much of the Act as gives the Commissioners power to inquire into any ingredient of the bankruptcy except whether it has arisen from unavoidable misfortune." unintelligible, and we are left to conjecture the bankruptcy has not arisen from unavoidthe Chancellor's intentions. The questionable losses and misfortunes, in which case he is of "Class Certificates" was much dis- to award a certificate of the third-class. The cussed, not only in this and other publica- have the power to examine into all the acts of consequence of this is, that the Commissioners tions, but amongst the trading and commercial community, when the Bankrupt Law Consolidation Bill was under the consideration of Parliament, and has lost none of its importance by reason of the fact, that what was then a mercantile novelty has now been illustrated by an experience of more than three years. No apology, therefore, is required for directing the attention of our readers to the manner in which the subject has been considered by the acute and practised mind of Lord St. Leonards. We give the report of this portion of his lordship's speech, as it appeared in the leading morning papers, without abridgment: The objection to the existing system is, that an inquiry to ascertain whether a bankruptcy has arisen wholly, partially, or not at all, from unavoidable losses, opens a field for investigations into personal conduct, and a scrutiny into private transactions, offensive to those who become bankrupt, and in the opinion of many creditors not necessary for the purposes of justice. The Lord Chancellor proposes to remedy this evil, and he is represented to have arrived at the conclusion, that the Commissioner should be deprived of the power of investigating any ingredient of the bankruptcy, "except whether it has arisen from unavoidable misfortune." In other words, that the Commissioner should be deprived of the power, the exercise of which is not the subject of objection, and restricted to the exercise of the power which is the subject of complaint. This is simply preposterous! The power Lord St. Leonards designs to deal with is, the power to inquire whether a bankruptcy arises from unavoidable losses; but it is not suggested how this can be effected, if granting or withholding the certificate is to depend on the Commissioners' estimate of the conduct of the bankrupt as a trader. Unless the Commissioners are relieved from "One reason assigned for the falling off of the business has been, that the system of giving different classes of certificates operates as a stigma upon the trader. The best men in the city of London, merchant princes, as they are, men of the highest feelings, may fall into misfortune, but in order to obtain a first-class certificate, it is requisite that nothing but unavoidable misfortune shall have contributed to the bankruptcy of the party. Now the very heart and soul of commerce is enterprise, and it is very difficult to say where enterprise ends and want of due confidence' begins [hear]. I am persuaded that one of the effects of the present system is to keep out of the Court of Bankruptcy the cases of many persons who would gladly avail themselves of it, if it were not for fear of the stigma which may be unjustly inflicted upon those who by their instrumentality might be exposed to it. The Act of Parliament states, that the Court, having regard to the conformity of the bankrupt to the Law of Bankruptcy, and to his conduct as a trader before as well as after his bankruptcy, and whether the allowance of such certificate be opposed by any creditor or not, the obligation of instituting any inquiries as shall judge of any objection against allowing to the conduct of the bankrupt, as a consuch certificate, and either find the bankrupt dition to granting a certificate, we do not entitled thereto, and allow the same, or refuse see how it is possible to narrow the field of or suspend the allowance thereof, or annex such inquiry. The inquiry necessary to enable conditions thereto as the justice of the case the Commissioner to determine whether a may require.' It is, therefore, impossible to bankrupt should have an immediate certifisay that a very large power is not given to the Commissioners. It is stated in the next seccate, a certificate after a longer or shorter tion, that the certificate shall be in the form suspension, or no certificate at all, involves given in the schedule, and from that schedule all the elements which enable him to decide all the difficulty has arisen. The Commissioner whether the certificate should be of one is to certify that the bankruptcy has arisen class or another. If the investigation into from unavoidable losses and misfortunes, and the bankrupt's conduct before the Comtherefore to award a first-class certificate; or missioner is not to be full and searching, it that it has arisen not solely from unavoidable had much better be dispensed with. The losses and misfortunes, in which case he is to award a certificate of the second-class; or that practical remedy, we incline to think, is that suggested by Mr. Freshfield, the Solicitor for the Bank, in his evidence before the Select Committee of the House of 92 Amendment of the Bankrupt Law-Classificaton of Certificates. founded. "How then would the Commissioner be able Lords, in 1848, before the over refined very unsound conclusion upon those subjects, scheme of classifying certificates, and there- which is rendered conspicuous to us by their by "guaging the integrity of the bankrupt giving judgments upon the subject, expressing with the nicest exactitude," was introduced opinions which the creditors know to be unin any measure before Parliament. Mr. Freshfield's plan was, to revert to the state to judge in case of an opposition of a creditor? of the law previously to the passing of the "Wherever there were parties before a ComAct 5 & 6 Vict. c. 122, giving a proportion missioner, either the bankrupt himself appealof the creditors the power of withholding or ing to the Commissioner to grant his certificate, granting the certificate; subject, however, or the parties opposing the grant of that certito an appeal to the Commissioner on the ficate, there a case would be made out, and the part of the bankrupt, if the certificate is Commissioner would decide judicially upon withheld; and also subject to an appeal by Commissioner proceeding to give a judgment that case; but the difficulty arises upon the any dissenting creditor, in case the certifi- and express an opinion where he has only one cate is granted by other creditors. Mr. side of the question before him. Freshfield's evidence explains so fully the "You mean to say, that in case of a bankdifficulty then felt, and now universally rupt or creditor coming before him by appeal, acknowledged, that we take leave to sub-the Commissioner would have the case prejoin that portion relating to the certifi-sented to him judicially by the conflict of parties before him? cate: "Do you consider that the transfer from the creditor to the Court of the power of granting the certificate was an improvement? "Precisely so. He would have the facts, upon which he would give a judgment. The creditor opposing the certificate would have to make out his case, and the Commissioner would properly give judgment upon the evi"You think it was better vested in the cre- dence before him, and upon the result of his ditors? "I do not. "I think it would have been much better if it had been left it the hands of the creditors, as it was before, subject to the right on the part of the bankrupt to apply to the Commissioner to have his certificate granted if withheld by the creditors. "And subject to the right also on the part of dissenting creditors to apply against him? "Yes. "What do you consider has been the injury which has been done to creditors by putting it into the hands of the Commissioner? "I think it is left to a Commissioner who has no substantial means of forming a correct judgment upon the subject, and in consequence very inaccurate conclusions are come to by the Commissioners. The creditors are placed in a false position altogether. Certificates are obtained by parties who ought never to obtain them, and in cases in which the creditors would never have signed the certificate, but in which they will not take the prominent and obnoxious part of being opposers. "Do not you consider that creditors under the old system used rather to err from lenity than from hardship? I do, certainly. "Has not the Commissioner an opportunity of examining the conduct of the bankrupt in the course of proceedings? "He has, but it is very imperfect. Has not he an opportunity of consulting the official assignees ? "Yes, but that does not lead him to a sound conclusion. "Has not he an opportunity of consulting the trade assignee also? "He has; but the result of my observation has been, that the Commissioner comes to a inquiries. "Would not that be liable to this difficulty, that as creditors are apt to be lenient and careless, the result might be a tendency to grant certificates, there being nobody to oppose them? "I think that would be a less evil than that of a Commissioner granting a certificate upon the result of his own investigation and giving judgment which was unfounded. It tends to bring justice into disrepute. a 66 You mean to say that you have heard Commissioners, in giving their reasons in public, state matters which were known to the creditors to be unfounded? "Yes." Mr. Maynard, of the firm of Crowder and Maynard, was also examined before the Lords' Committee, and expressed his doubts whether the transfer of the power of granting or refusing the certificate to the Commissioner worked well. Mr. Maynard says, "I have seen instances where parties have obtained their certificates who ought not to have had certificates. The attention of creditors is now called off from the subject." In the face of these warnings from persons of practical knowledge and experience, the jurisdiction previously intrusted to the Commissioners, was rendered more delicate and critical, and therefore more difficult, by the introduction of this plan of granting class certificates in the Act of See Minutes of Evidence, page 226, and Questions, from 2045 to 2056, inclusive. 2434. Minutes of Evidence, page 271; Question, Lord Brougham's Law of Evidence and Procedure Bill-New Orders in Chancery. 1849. As was then foretold, this excrescence on the Bankruptcy Laws has been found to operate most unsatisfactorily, and to bring into prominent notice the want of uniformity in the decisions of the Commissioners, and many other imperfections in the system, which it is to be hoped Lord St. Leonards will devise the means, as we have no doubt he has the will, to correct by legislative interference. LORD BROUGHAM'S LAW OF EVI- ANALYSIS OF CLAUSES. THE following is the marginal abstract of this Bill, and will for the present be sufficient for the consideration of our readers. When the Bill moves forward, we shall enter on the details. We have marked the principal subdivisions of the Bill, showing the several subjects it comprehends. I. Preamble states that the Laws touching Evidence and Procedure require further amend ment. Husbands and wives to be admissible witnesses; sect. 1. 93 Writings used to disprove handwriting by comparison must have been written ante litem motam; s. 20. A single witness sufficient to prove any fact; proviso as to orders of affiliation; s. 21. V. Judge at Nisi Prius may in certain cases decide questions of fact without a jury; s. 22. Either party may require a jury; s. 23. Mode of enforcing discovery of documents; s. 24. Power to either party in a cause to crossexamine his opponent before the trial; s. 25. VI. Crown to receive and pay costs like ordinary suitors; s. 26. Right to begin and reply, same to Crown as to other suitors; s. 27. VII. No objection to want of stamps, if document ten years old; s. 28. VIII. Queen in Council may authorize the trial of prisoners in adjoining counties; s. 29. Court of Queen's Bench may order criminal trials in any county; s. 30. Court may order costs to prisoner acquitted; s. 31. Distinction between local and transitory offences abolished; s. 32. Courts of oyer and terminer, &c., may issue writs of subpoena into any counties; such Exception in criminal cases and in cases of writs may be enforced by attachment in the adultery; s. 2. Queen's Bench; s. 33. Communications between husband and wife protected; s. 3. So much of proviso in sect. 1 of 6 & 7 Vict. c. 85, as relates to husbands and wives repealed; s. 4. II. Enactments respecting payment of money into Court repealed; s. 5. Money may be paid into Court in all personal actions; 8. 6. Form of plea of payment into Court; s. 7. How money is to be paid in and out of Court; s. 8. How plaintiff may reply to plea of payment into Court; s. 9. Payment into Court no admission of cause of action; s. 10. III. How far a party can discredit his own witness; s. 11. Power to contradict witnesses as to collateral matters affecting their credit; s. 12. How far witnesses may be cross-examined as to their written statements, without producing the writings; s. 13. Witnesses not protected from answering questions tending to criminate them; s. 14. IV. Modes of proving handwriting; s. 15. Handwriting may be proved or disproved by comparison; s. 16. Persons whose handwriting is disputed may be required to write in Court; s. 17. Writings more than 30 years old, proved by comparison; s. 18. Nature of comparison allowed; s. 19. how IX. Expense of attendance on writs of sub- Act not to extend to Scotland; s. 36. NEW ORDERS IN CHANCERY. PAYMENT OF FEES BY ADHESIVE STAMPS. 3rd December, 1852. THE Right Honourable Edward Burten- 1. That the Commissioners of Inland Re- 2. That such stamps shall be affixed by the parties requiring to use the same, on the vellum, parchment, or paper, on which the proceeding 94 New Orders in Chancery.—Payment of Fees by Stamps-Practical Inconveniences. in respect whereof such stamps may be required, is written, printed, or engrossed, or which may be otherwise used in reference to such proceeding. 3. That every officer of the Court of Chancery who shall receive any documents to which a stamp shall be so affixed shall, immediately upon the receipt thereof, obliterate or deface such stamp by impressing thereon a seal to be provided for that purpose, but so as not to prevent the amount of the stamp from being ascertained, and no such document shall be filed or delivered out until the stamp thereon shall be obliterated or defaced as aforesaid. 2nd. In the Record and Writ Clerks' Office. £ s. d. 0 10 0 For amending every record of any per folio 0 0 4 PAYMENT OF FEES BY STAMPS. PRACTICAL INCONVENIENCES. THE Practitioners in Chancery have been put to much inconvenience and delay, consequent on the change effected by the Suitors' Relief Act, under which all the fees of office TAXING MASTERS, REGISTRARS, AND RE- are paid by stamps instead of money. CORD OFFICE FEES. 4th December, 1852. THE Right Honourable Edward Burtenshaw, Lord St. Leonords, Lord High Chancellor of Great Britain, doth hereby, in pursuance of an Act of Parliament passed in the 15 & 16 Vict., intituled "An Act for the relief of the Suitors of the High Court of Chancery," and in pursuance of all other powers enabling him in that behalf order and direct as follows: I. When no certificate of the taxation of a bill of costs shall be required, the ad valorem duty directed by the Order of the 25th day of October to be levied by Stamps on the Master's certificate shall nevertheless be due and shall be payable on the amount of the bill as taxed, or on the amount of such part thereof as may have been taxed, and the solicitor is in such case to cause the proper stamp (the amount thereof to be fixed by the Master) to be impressed on or annexed to the bill of costs. II. The fees hereunder specified shall hereafter be collected, not in money, but by means of stamps denoting the amount of such fees, stamped or affixed at the expense of the parties liable to pay the fees on or to the vellum, parchment, or paper on which the proceedings in respect whereof such fees are payable are written or printed, or which may be otherwise used in reference to such proceedings. 1st. In the Registrars' Office. For orders made by a Judge in Chambers, drawn up the Registrar, the like fees as by the Order of the 23rd October, 1852, are directed to be taken by the Chief Clerks to the Judges for orders drawn up by such Chief Clerks. We have received several remarks on the nature and extent of the inconveniences sustained in practice, with suggestions for their removal; and from which we select the following particulars : These fee stamps, it appears, may be classed under the following heads: is paid, without reference to the length of the 1st. Fees on proceedings where a fixed sum document. In this class are writs, summonses, certificates, reports, bills, informations, claims, special cases, affidavits, decrees and orders, searches, advertisements and inspections. 2nd. Fees on proceedings, depending on length, such as office copies of pleadings, depositions, and affidavits. which depend on the time occupied. 3rd. Fees for officers' attendance as witnesses, 4th. Fees depending on the number of defendants for entering appearances, and on the number of deponents for administering oaths. The chief inconvenience to the practitionenced in stamping bills and affidavits, and obers by this mode of collecting fees, is experitaining office copies. As to Pleadings.-According to the former practice, when office copies were paid for in money, the solicitor bespoke the copy, and afterwards attended to receive it, and then paid the fees. Now, he has to wait, not only till the record is found, but the number of folios estimated; he then pays the office stationer be precisely ascertained. On attending again the estimated amount, but which can seldom to receive the office copy, he has to pay or receive the difference between the sum deposited and the actual charge. Thus, the solicitor loses much time in bespeaking the copy, and has to make two entries of each transaction in his book of disbursements; and the office stationer has to keep a duplicate account. At the Accountant-General's Office there is Transcripts depending on length. also the same inconvenience and delay on As to Affidavits.-The same inconvenience arises in bespeaking office copies of affidavits and paying for them. In addition thereto, where |