Page images
PDF
EPUB

90

Attorneys' Certificate Duly.- Amendment of the Bankrupt Law. to entertain the question. At all events, an early interview with the Chancellor of the occasion appears to be fitting for rc- 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 having taken place but a few months ago, of pointing out the mode in which it can the Finance Minister,—occupied incessantly be most advantageously furthered by indi- with the business before him, -considered it vidual exertion. In a cause, the justice of unnecessary to appoint another meeting bewhich is so manifest, there can never be fore his parliamentary statement. 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 Although the Chancellor of the Ex

LAW. chequer, in canvassing the various claims of the shipping, sugar, and agricultural inter- CLASSIFICATION OF CERTIFICATES. ests, 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, in various, and not unimportant, particulars.

- borne neither by the Bar nor by the Those who were fortunate enough to have medical nor clerical professions, nor by heard the statement made by Lord St. architects, engineers, or any other profes- Leonards, concur in describing it as resional class.

markable for clearness and conciseness, but Perusing attentively Mr. Disraeli's speech, matters of detail can hardly be reported we find the following passages, which seem with accuracy, unless the art of reporting is to us clearly and distinctly to admit the combined with an adequate knowledge of grounds on which the tax ought to be re- the subject under discussion. pealed :

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

sons assigned for the decline of business shipping body, or on the part of any other class

was, “that the system of giving different in this country, well founded claims to the classes, o

unded claims to the classes of certificates operated as a stigma consideration of Parliament, it is highly ex- upon the trader.” This subject was dispedient, not only to the interest of public mo- cussed with great eloquence and ability by rality, but from the most utilitarian considera- Lord St. Leonards, who explained to the tion that could possibly occur to the most un- House. in precise terms, the extensive sentimental minds, that we should enter into power given under the 198th section of the these questions, ascertain their merits, and de- Bankrunt Law Consolidation Act to cide accordingly.”. * “ That all real grievances may be remedied Commissioners in granting or withholding

imposed that we shall cease to hear of the claims of a certificates, and the difficulties particular interest as subject to burdens and upon them by reason of the form of certivexations from which the community are free,” ficate directed by the Act. So far, the re

porters 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

Amendment of the Bankrupt Law-Classification of Certificates.

91

unintelligible, and we are left to conjecture the bankruptcy has not arisen from unavoidthe Chancellor's intentions. The question able losses and misfortunes, in which case he is of " Class Certificates” was much dis. I to award a certificate of the third-class. The cussed, not only in this and other publice, consequence of this is, that the Commissioners

have the power to examine into all the acts of tions, but amongst the trading and com

the bankrupt, including his personal conduct, mercial community, when the Bankrupt and to scrutinise it in a way which has led to Law Consolidation Bill · was under the very great objection on the part of many perconsideration of Parliament, and has lost sons to enter the Court. I propose to repeal none of its importance by reason of the fact, so much of the Act as gives the Commissioners that what was then a mercantile novelty | power to inquire into any ingredient of the has now been illustrated by an experience / bankruptcy except whether it has arisen from of more than three years.

No anoloov.) unavoidable misfortune.

No apology, un therefore, is required for directing the at The objection to the existing system is, tention of our readers to the manner in that an inquiry to ascertain whether a bankwhich the subject has been considered by ruptcy has arisen wholly, partially, or not the acute and practised mind of Lord St. at all, from unavoidable losses, opens a field Leonards. We give the report of this for investigations into personal conduct, and portion of his lordship's speech, as it ap- ' a scrutiny into private transactions, offenpeared in the leading morning papers, with sive to those who become bankrupt, and in out abridgment :

the opinion of many creditors not necessary One reason assigned for the falling off of for the purposes of justice. The Lord the business has been, that the system of giving Chancellor proposes to remedy this evil, different classes of certificates operates as a and he is represented to have arrived at the stigma upon the trader. The best men in the conclusion, that the Commissioner should city of London, merchant princes, as they are, be deprived of the power of investigating men of the highest feelings, may fall into misfortune, but in order to obtain a first-class cer-1

any ingredient of the bankruptcy, “except tificate, it is requisite that nothing but unavoid- whether it has arise

navoid. whether it has arisen from unavoidable misable misfortune shall have contributed to the fortune.” In other words, that the Combankruptcy of the party. Now the very heart and missioner should be deprived of the power, sonl of commerce is enterprise, and it is very dif- the exercise of which is not the subject of ficult to say where enterprise ends and want of objection, and restricted to the exercise of due confidence' begins [hear]. I am persuaded the power which is the subject of complaint.

to This is simply preposterous! The power keep out of the Court of Bankruptcy the cases 1 of many persons who would gladly avail them

Lord St. Leonards designs to deal with is, selves of it, if it were not for fear of the stigma

the power to inquire whether a bankruptcy which may be unjustly inflicted upon those who arises from unavoidable losses ; but it is by their instrumentality might be exposed to it. not suggested how this can be effected, if The Act of Parliament states, that the Court, granting or withholding the certificate is to having regard to the conformity of the bank-depend on the Commissioners' estimate of rupt to the Law of Bankruptcy, and to his con- I the conduct of the bankrupt as a trader. duct as a trader before as well as after his Unless the Commissioners are relieved from 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

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 sec

cate, 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 So1 Probably a misprint for a cautiin » hot licitor for the Bank, in his evidence before sic in all the reports.

the Select Committee of the House of

[ocr errors]

92

Amendment of the Bankrupt Law-Classiificaton of Certificates. 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

troduced opinions which the creditors know to be un

founded. in any measure before Parliament.

Mr:
Mr. "

“How then would the Commissioner be able 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 certi. to 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 certific sented to him judicially by the conflict of

parties before him? cate :

“ Precisely so. He would have the facts, “Do you consider that the transfer from the upon which he would give a judgment. The creditor to the Court of the power of granting creditor opposing the certificate would have to the certificate was an improvement ?

make out his case, and the Commissioner “I do not.

would properly give judgment upon the evi“You think it was better vested in the credence before him, and upon the result of his ditors ?

inquiries. “ I think it would have been much better if “Would not that be liable to this difficulty, it had been left it the hands of the creditors, as that as creditors are apt to be lenient and careit was before, subject to the right on the part less, the re:ult might be a tendency to grant of the bankrupt to apply to the Commissioner certificates, there being nobody to oppose to have his certificate granted if withheld by them? the creditors.

“I think that would be a less evil than that "And subject to the right also on the part of of a Commissioner granting a certificate upon dissenting creditors to apply against him? the result of his own investigation and giving “ Yes.

a judgment which was unfounded. It tends to “What do you consider has been the injury bring justice into disrepute. which has been done to creditors by putting it “You mean to say that you have heard into the hands of the Commissioner?

Commissioners, in giving their reasons in pub“I think it is left to a Commissioner who lic, state matters which were known to the crehas no substantial means of forming a correct ditors to be unfounded ? judgment upon the subject, and in consequence “Yes." very inaccurate conclusions are come to by the Mr. Maynard, of the firm of Crowder Commissioners. The creditors are placed in and Maynard, was also examined before a false position altogether. Certificates are ob-li.

Lords' Committee, and expressed his doubts tained by parties who ought never to obtain

id whether the transfer of the power of grantnever have signed the certificate, but in which ing or refusing the certificate to the Comthey will not take the prominent and obnoxious missioner worked well. Mr. Maynard says, part of being opposers.

“I have seen instances where parties bave “Do not you consider that creditors under obtained their certificates who ought not to the old system used rather to err from lenity have had certificates. The attention of than from hardship?

creditors is now called off from the sub“I do, certainly. “Has not the Commissioner an opportunity

„lject.”. In the face of these warnings from of examining the conduct of the bankrupt in persons or practical kno

in persons of practical knowledge and expethe course of proceedings ?

rience, the jurisdiction previously intrusted “ He has, but it is very imperfect.

to the Commissioners, was rendered more “Has not he an opportunity of consulting delicate and critical, and therefore more the official assignees ?

difficult, by the introduction of this plan of “Yes, but that does not lead him to a sound granting class certificates in the Act of conclusion.

“ Has not he an opportunity of consulting See Minutes of Evidence, page 226, and the trade assignee also ?

Questions, from 2045 to 2056, inclusive. “He has; but the result of my observation ""? Minutes of Evidence, page 271 ; Question, has been, that the Commissioner comes to a 2434.

Lord Brougham's Law of Evidence and Procedure Bill.-New Orders in Chancery.

93

1849. As was then foretold, this excres-1 Writings used to disprove handwriting by cence on the Bankruptcy Laws has been comparison must have been written ante litem found to operate most unsatisfactorily, and motam; 8. 20 to bring into prominent notice the want ofl A single witnes8 sufficient to prove any fact; uniformity in the decisions of the Commis

in proviso as to orders of affiliation ; '8. 21. sioners, and many other imperfections in the V, Judge at Nisi Prius may in certain cases system, which it is to be hoped Lord St. decide questions of fact without a jury; 8. 22. Leonards will devise the means, as we have Either party may require a jury ; s. 23. no doubt he has the will, to correct by.

Mode of enforcing discovery of documents; legislative interference.

s. 24.

Power to either party in a cause to crossLORD BROUGHAM'S LAW OF EVI.

examine his opponent before the trial; 8. 25. DENCE AND PROCEDURE BILL. VI. Crown to receive and pay costs like or

dinary suitors ; s. 26. ANALYSIS OF CLAUSES.

Right to begin and reply, same to Crown as The following is the marginal abstract of to other suitors ; 8. 27. this Bill, and will for the present be sufficient VII. No objection to want of stamps, if dofor the consideration of our readers. When cument ten years old ; s. 28. the Bill moves forward, we shall enter on the VIII. Queen in Council may authorize the details. We have marked the principal sub- trial of prisoners in adjoining counties ; s. 29. divisions of the Bill, showing the several sub- Court of Queen's Bench may order criminal

trials in any county ; s. 30. jects it comprehends.

Court may order costs to prisoner acquitted ; I. Preamble states that the Laws touching s. 31. Evidence and Procedure require further amend Distinction between local and transitory ment.

offences abolished ; s. 32. Husbands and wives to be admissible wit Courts of oyer and terminer, &c., may issue nesses; sect. 1.

writs of subpæna 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

IX. Expense of attendance on writs of subprotected ; s. 3. So much of proviso in sect. 1 of 6 & 7 Vict. Par

Vint I pæna shall be tendered to witness ; 34. C. 85, as relates to husbands and wives re

Interpretation clause ; s. 35.

Act not to extend to Scotland; s. 36. pealed ; 8. 4.

Short title of Act; s. 37.
II. Enactments respecting payment of mo Commencement of Act; 8. 38.
ney into Court repealed; s. 5.
Money may be paid into Court in all per-

NEW ORDERS IN CHANCERY. sonal actions ; s. 6. Form of plea of payment into Court; 8. 7.

PAYMENT OF FEES BY ADHESIVE STAMPS. How money is to be paid in and out of Court; 8. 8.

3rd December, 1852. How plaintiff may reply to plea of payment The Right Honourable Edward Burter into Court; s. 9. Payment into Court no admission of cause

shaw, Lord St. Leonards, Lord High of action ; s. 10.

Chancellor of Great Britain, doth hereby, III. How far a party can discredit his own

in pursuance of an Act of Parliament witness ; s. 11.

passed in the 15 & 16 Vict., intituled “ An Power to contradict witnesses as to collateral Act for the Relief of Suitors of the High matters affecting their credit; 8. 12.

Court of Chancery," and in pursuance How far witnesses may be cross-examined

and execution of all other powers enabling as to their written statements, without producing the writings; s. 13.

him in that behalf, order and direct as folWitnesses not protected from answering

lows, that is to say, questions tending to criininate them ; s. 14. 1 1. That the Commissioners of Inland Re

IV. Modes of proving handsyriting: . 15. venue do prepare stamps impressed upon ad

Handwriting may be proved or disproved hesive paper of the amounts following, that is by comparison ; s. 16.

to say,—3d., 4d., 8d., 1s. 4d., 1s. 6d., 28. 6d., Persons whose handwriting is disputed may and 2s. 8d. be required to write in Court; s. 17.

2. That such stamps shall be affixed by the Writings more than 30 years old, how proved by comparison ; 8. 18...

parties requiring to use the same, on the vellum, Nature of comparison allowed ; s. 19. parchment, or paper, on which the proceeding

en

whibits

94 New Orders in Chancery.Payment of Fees by Stamps-Practical Inconveniences. in respect whereof such stamps may be re.' 2nd. In the Record and Writ Clerks Office. quired, is written, printed, or engrossed, or

£ s. d. which may be otherwise used in reference to For amending every record of any such proceeding.

will . . . . . .0 10 0 3. That every officer of the Court of Chan. For amending every office copy thereof 0 5 0 cery who shall receive any documents to which copies of documents left as exhibits, a stamp shall be so affixed shall, immediately per folio . . . . . 0 0 4 upon the receipt thereof, obliterate or defacel such stamp by impressing thereon a seal to be PAYMENT OF FEES BY STAMPS. provided for that purpose, but so as not to prevent the amount of the stamp from being as

PRACTICAL INCONVENIENCES. certained, and no such document shall be filed! The Practitioners in Chancery have been or delivered out until the stamp thereon shall put to much inconvenience and delay, consebe obliterated or defaced as aforesaid.

quent 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.

We have received several remarks on the 4th December, 1852. nature and extent of the inconveniences susThe Right Honourable Edward Burten- tained in practice, with suggestions for their

shaw, Lord St. Leonords, Lord High removal; and from which we select the follow. Chancellor of Great Britain, doth hereby, ing particulars :in pursuance of an Act of Parliament. These fee stamps, it appears, may be classed passed in the 15 & 16 Vict., intituled under the following heads : “An Act for the relief of the Suitors of;

of 1st. Fees on proceedings where a fixed sum

is paid, without reference to the length of the the High Court of Chancery,” and in document. In this class are writs, summonses, pursuance of all other powers enabling certificates, reports, bills, informations, claims, him in that behalf order and direct as special cases, affidavits, decrees and orders, follows:

searches, advertisements and inspections.

2nd. Fees on proceedings, depending on 1. When no certificate of the taxation of a length, such as office copies of pleadings, debill of costs shall be required, the ad valorem positions, and affidavits. duty directed by the Order of the 25th day 3rd. Fees for officers' attendance as witnesses, of October to be levied by Stamps on the

which depend on the time occupied.

"the 4th. Fees depending on the number of defendMaster's certificate shall nevertheless be due ants for entering appearances, and on the numand shall be payable on the amount of the bill ber of deponents for administering oaths... as taxed, or on the amount of such part there! The chief inconvenience to the practition

ers by this mode of collecting fees, is experiof as may have been taxed, and the solicitor is

enced in stamping bills and affidavits, and obin such case to cause the proper stamp (the taining office copies. amount thereof to be fixed by the Master) to' As to Pleadings.--According to the former be impressed on or annexed to the bill of practice, when office copies were paid for in costs.

money, the solicitor bespoke the copy, and

afterwards attended to receive it, and then paid II. The fees hereunder specified shall here. I the fees. Now, he has to wait, not only till after be collected, not in money, but by means the record is found, but the number of folios of stamps denoting the amount of such fees, estimated; he then pays the office stationer stamped or affixed at the expense of the parties

the estimated amount, but which can seldom

be precisely ascertained. On attending again liable to pay the fees on or to the vellum,

ne venum, to receive the office copy, he has to pay or reparchment, or paper on which the proceedings ceive the difference between the sum deposited in respect whereof such fees are payable are and the actual charge. Thus, the solicitor written or printed, or which may be otherwise I loses much time in bespeaking the copy, and

has to make two entries of each transaction in used in reference to such proceedings.

his book of disbursements; and the office sta1st. In the Registrars' Office. | tioner has to keep a duplicate account. For orders made by a Judge in Chambers. At the Accountant-General's Office there is drawn up the Registrar, the like fees as by the

also the same inconvenience and delay on

S..by the Transcripts depending on length. Order of the 23rd October, 1852, are directed As to Affidavits. The same inconvenience to be taken by the Chief Clerks to the Judges arises in bespeaking office copies of affidavits for orders drawn up by such Chief Clerks. and paying for them. In addition thereto, where

« EelmineJätka »