« EelmineJätka »
Report of the Bankruptcy Commissioners.
“Or if the bankrupt shall, at any time after tervention of a jury, with scarcely even the the filing of the petition for adjudication of form of a trial, and without a definition of the bankruptcy, have wilfully prevented or with offence, to brand a man for life with that which held the production of any book, paper, deed, may be felt as the indelible stigma of a thirdwriting, or other document relating to his class certificate ;—that this is punishment and trade, dealings, or estate;" —
not administration ;—that administration is the Then, and in such or any of such cases, should have to perform ;-that the obvious
only direct duty which a Court of Bankruptcy it is proposed that the Court shall suspend principle of the Bankrupt Laws is to take from the certificate for a period not exceeding the debtor all his property for the payment of three years nor less than one.
his debts, upon the condition that when he has Connected with the other penal clauses secured a complete transfer of it, he should be are the 257th, the 258th, and the 259th. entitled as of right to a discharge from all his These sections, which are simply penal, liabilities ;-that to deprive him of his estate have probably a greater influence on the and punish him also, for conduct which the business of the Court than any others of had continued solvent, is not only harsh but
law would not have regarded as criminal if he the penal provisions. They are new, and, unjust ;--that if any punishment is at all to be in the Commissioners' opinion, cannot be left in the discretion of the Commissioner, it justified. They turn the creditor who has should be limited to the refusal or suspension proved a debt into a judgment creditor, and of the certificate ;-that the penalties of classienable him to enforce a writ of execution fication are provided not as substitutes for, but against the person of a bankrupt to whom as additions to those of suspension or refusal ; the Commissioner may have refused
—that the latter penalties may be, and in fact tection, on any ground whatever ; and that are, put in force with the same frequency and
severity now as before classification existed'too without further accusation, trial, or that the attempt to classify the character of conviction. A power of this kind is im- bankrupts according to their conduct, without politic and mischievous; for the punish- any standard rule or gauge by which such ment inflicted will seldom operate by way character or conduct is to be measured, must of example, as it may be procured at the leave the whole matter in so much uncertainty, suit of a private person and for private that the credit intended for the first-class cerpurposes—it may also be exercised ma- certificate
will be equally
misapplied and ought
tificate and the censure attached to a third-class liciously and vindictively. The Commis- to be equally disregarded ;-that it is found
by sioners think such a power ought not to be experience that different Commissioners have entrusted to any creditor under a bank- different views of commercial propriety and ruptcy, and therefore that these sections commercial misconduct, and consequently there ought to be repealed.
is no uniformity of decision, and none can be ALTERATION IN CLASSIFICATION OF CER- is granted, it is made imperative on the Court
expected ; that although, whenever a certificate TIFICATES.
to place the bankrupt in one or other of the Connected with the amendment of the three classes, no provision is or can be made penal sections of the Act of 1849, we may for bringing all the facts bearing on the classinext advert to the alterations proposed by --that these facts may be,
and too often are, in
fication under the notice of the Commissioner ; the Commissioners in the granting of class tentionally withheld;—that it may be, and often certificates.
is, the case where little or no assets are realised, Much evidence was taken on this subject that the bankrupt has first misconducted himbefore the Committee of the House of Lords self in diminishing the estate, and, next, has during last Session. Further evidence from secured himself from the stigma of a thirdall parts of the kingdom has been since class certificate by depriving his creditors of brought before the Commissioners. In the the pecuniary means essential to an effective country the classes seem to be less regarded these and other penal clauses is to deter the
scrutiny of his conduct ;-that the effect of than they are in London. In both there is a creditor of respectable but unfortunate traders considerable difference of opinion respecting from bringing them into Court, and the traders their value. Some witnesses speak of them themselves from resorting to bankruptcy ;as vexatious and useless ; others denounce and that for such and the like reasons the them as odious and unjust; others approve clauses establishing the classification of cerof them in the highest terms. In the tificates ought to be repealed. midst of so many contradictory conclusions,
“On the other hand it is contended, that it is necessary to examine the grounds and although this is a novelty in the Law of Eng
land to a certain extent, it is not so altogether; reasons on which they are founded.
—that the principle of conferring the power of « On the one hand it is represented to us, punishment on a single Commissionër, is as that this is a novelty in the law of England ;- fully conceded by giving him the power of that it enables a single Judge, without the in- withholding the certificate, or suspending it
Report of the Bankruptcy Commissioners.
61 without protection, as it is by giving him the system of classification has or has not been power of awarding a certificate of the third, productive of benefit. Both as regards the class; that although the certificate is the usual past and the future, the Commissioners consequence of the cessio bonoruin which the have failed to arrive at any definite conclulaw enforces, yet in many cases, such as fraud or gambling, the Statute itself denies to the sion; and they regret to say, that after bankrupt the benefit of obtaining it under any great deliberation they are still divided in circumstances, even when it has stripped him opinion. Some of them think that the sysof all his property :-that the suspension or tem of classification should be abolished classification of the certificate is only a modifi- altogether; whilst others are of opinion cation of the same principle which the law has that to a certain extent it ought still to be thus already recognised and always acted upon; continued, provided it can be cleared of the -that the certificate in fact is not a right that any one may clain, but a privilege to traders, Fagueness and uncertainty which appear to which no other class of insolvents enjoy's, and have produced, under similar circumstances, therefore, like all privileges
, it may be sub- very different decisions. They are all agreed, jected to conditions that are reasonable in however, that the law, as it stands, is so themselves and beneficial in their effects ;- vague and ill-defined that it cannot be adthat it is unjust to the honest trader whose in- ministered with justice or precision. solvency has been occasioned by losses and misfortunes that could not be anticipated, to
“ By the law as it now stands,' the Combe sent back again into the 'arena of com- missioner is to have regard to the conformity merce' with nothing to distinguish him from of the bankrupt to the Law of Bankruptcy and the dishonest trader, whose bankruptcy was to his condut as a trader before as well as after owing to his own misconduct;—that advantages his bankruptcy; and then he is to certify, in arise both to the mercantile community and in awarding the class of certificate, either that many cases, to the bankrupt himself, by noting his bankruptcy has arisen from unavoidable that distinction ;-that the beneficial results of losses and misfortunes, or that it has not this classification have been strongly evidenced wholly arisen from unavoidable losses and by the extreme anxiety which different Com- misfortunes, or that it has not arisen from missioners have observed in bankrupts to ob- unavoidable losses and misfortunes. There tain a high class and to avoid a low one ;-that can hardly be a doubt that the object of those although a third-class certificate is a brand or who framed this provision was to say, that stigma in a figurative sense, yet it cannot be bankruptcy from misfortune should entitle a considered, if justly awarded, as a brand or man to a first class, that bankruptcy from misstigma imposed by the law, but a brand or conduct should degrade him into a third, and stigma which is self-imposed, and knowingly that the intermixture of the two should place incurred, because it is the necessary and in- him in the second. There is to be a certificate evitable result of the misconduct which the in. of approval, a certificate of disapproval, and a solvent has chosen to pursue ;-that the severity certificate importing neither the one nor the of the punishment, if there be any severity, other. Assuming, however, that this is the arises therefore from the moral misconduct of construction, the language is ambiguous, and the party himself, and not from the system, or there are numberless cases which would not be the act of the Judge, who through the certifi- defined.” cate expresses his judgment on that miscon- “To remedy this ambiguity, some witnesses duct;-that the uncertainty of the law, and the have suggested that the body of the Statute want of uniformity in the Commissioners' de- should point out the circumstances which cisions, is rather a reason for prescribing a should act as a guide to the Commissioner in clearer and better rule for their guidance in his judgment, and then that the certificate future than for superseding the system of should simply, be a certificate of the first, classification altogether, if that system in other second, or third class, according to the degree respects has been found to be advantageous ;
of approval or disapproval which ought to be that the preponderating opinion among the applied to the bankrupt's conduct. Commissioners of the Court, as well as in the
* Others have considered that some such trading world, is in favour of some classifica- plan as the foregoing should be adopted, but tion, and that therefore it would be unadvisable that the Commissioner should state in the and highly impolitic to subvert a system, certificate the grounds of his decision, in order recently introduced, generally approved of by that they might be known to the mercantile those most interested in it, and capable of community, and also that they might be rectiamendment in the only points which are open
fied, if wrong, upon appeal. to objection.”
“Others, again, have despaired of making It cannot be denied (says the Commis
three distinctions, which will not create unsioners) that there is considerable force in fore, recommended two certificates, the one, a
certainty and confusion; and they have, thereboth these views. But they rest so much certificate of approval, which would indicate to on the opinions of witnesses rather than on the world that the inability of the bankrupt to facts adduced in evidence, that the Commissioners are unable to state whether the
12 & 13 Vict. c 106, s. 198.
Report of the Bankruptcy Commissioners. meet his engagements was owing to his mis- “The form of the certificate, after briefly fortune, and not to his fault; the other, a referring to the completion of the examisimple certificate of conformity which should nation, might in its substantial parts run intimate no opinion of his conduct; but in so as follows : — And having regard to the confar as that conduct might deserve punishment, formity of the said bankrupt to the Law of the refusal, or suspension, or adjournment of Bankruptcy, to the mode in which he has kept the certificate should be the mode by which it his books and accounts, and his conduct in should be conveyed.
that and in all other respects as a trader, as “These suggestions deserve every considera- well before as after his bankruptcy, the Court tion, not only on account of the high authority did then and there find the said bankrupt enfrom which they come, but also for the im- titled to such certificate.' Then if the Comprovements which they evidently contemplate. missioner should award a certificate of con
“With regard to the first and second, it í formity only, such certificate should proceed appears to us, that if the threefold classification simply as follows :—“And the Court doth of certificates were still to be retained, it would hereby award him a certificate of conformity ;' be advisable that the Act itself should be more but if the Commissioner should award a certispecific than it is at present, and that the Com- ficate of approval, it should be in the words missioners should indicate shortly the grounds following And it is hereby further certified upon which the certificate was awarded, in order that the Court doth approve of the conduct of that the case might be better heard on appeal, the said bankrupt in respect to the mode in and also that the public might be made aware which he has kept his books and accounts, and of the reasons with reference to the trader's in all other respects as a trader; and doth conduct, which raised him into a high class, award him a certificate of such approval acor degraded him into a low one. We recom- cordingly.” mend that this should be done if the threefold
PUBLICITY OF PROCEEDINGS. classification should still be continued. But it may be doubted whether it would be practi- Another cause of diminshed business, as cable to work out a system of threefold classifi- stated in the report, is the unwillingness of cation with perfect fairness, since the same creditors to undergo an exposure of their facts will strike the minds of different Judges affairs. in different ways; since circumstances material to the truth of the case will often be with- "The evidence given in a paper sent in to held; and since it is hardly possible to draw a us by some leading solicitors in the city of clear and definite line which will distinguish London is clear upon this point. They say, either the first from the second, or the second and the statement is generally confirmed by from the third class."
most of the witnesses, — The creditors com
plain that the control and management of the It appears that some of the Commis- bankrupt's estate is taken from them, and sioners would object to classification in they have to attend a crowded Court with whatever
way the system might be modi- great formalities : and the frequent publication fied, since such modification can only be in the newspapers of the names of the creditors, regarded by them as a contrivance for abo- the debts proved, and discussions on contested lishing a simple certificate of conformity, debts, have also tended to make the system or rendering it discreditable to the bank- unpopular to creditors. rupt and prejudicial to his future prospects. higher class, there has always been an objec
M.On the part of the merchant debtors of a But those of the Commissioners who still tion to pass through the ordeal of bankruptcy, approve of some system of classification and this has been greatly increased by the agree in the opinion that two classes will be present constitution of the Court, and especipreferable to three ; the one for approval ally since the last Act has given the Court all of the bankrupt's conduct as well as for his the attributes of a criminal tribunal.' conformity to the law, and the other only tion; but we cannot forget that publicity is an
“ These remarks are entitled to considerafor conformity; leaving the punishment, or stigma of dishonesty to be attached to Court of Justice. The principle must be pre
important and necessary incident to every those who have misconducted themselves, served without being unduly pressed. And it by refusing the certificate, or suspending or appears to us that a more general adoption of adjourning it, as the justice of the case the means provided by the existing law for the may seem to require. They would accord- reception of proofs of debts by affidavit, subingly recommend that a provision be in-ject to the power of summoning the claimant serted in the body of the Act of Parliament for oral examination, will, without interfering requiring the Court to grant either a certi- with that principle, meet the real exigency of ficate of conformity and approval, or a certi- the case ; more than that can hardly be ex. ficate of conformity only, and distinguish of formality,
as far as it applies, may be met
pected. The objection taken on the ground ing the circumstances under which they are by allowing the transaction of portions of the to be awarded, as described in the terms of purely administrative business of the Court bethe certificate.
fore the Commissioners in Chambers. Such
Report of the Bankruptcy Commissioners.-Common Law Procedure Bilt.
63 practice might advantageously be intro- but the difficulty of obtaining a suitable site duced.”
has hitherto prevented its accomplishment.
The arrangement which we suggest would NEW COURTS AND OFFICES.
afford an opportunity for the attainment of The Commissioners are strongly in favour this important object.” of bringing the Bankrupt Courts and offices of the official assignees to the same locality AMENDMENTS IN THE COMMON as the proposed new Courts of Law and Equity
LAW PROCEDURE BILL. "It appears to us” (they say) “ that the building in Basinghall Street, which was We are glad to find that this important erected in 1822 for the purpose of providing measure is making progress in Parliament, rooms for the meetings of the then London and we now lay before our readers the sublists of Commissioners of Bankrupt, affords stance of the amendments made by the very insufficient accommodation for the suitors, Select Committee of the House of Lords. practitioners, and others resorting to the pre- As to Arbitrations.-One of the objecsent Courts. “Moreover the rooms devoted for offices to
tions justly made by Lord St. Leopards to the Accountant
in Bankruptcy are small and the indefinite power of arbitrators to enlarge inconvenient. The office of the Taxing Master the time for making their award, might be is quite unsuitable. The messengers' offices removed by rendering it necessary to obtain take up a portion of the very confined space in a Judge's order to enlarge the time, on the the Courts themselves. The official assignees application for which the opposite party cannot be accommodated within the building; would have an opportunity of being heard and altogether it is ill adapted and inadequate and preventing unnecessary delay, to the requirements of the establishment. “We are therefore of opinion, that in the
The following are the amended sections event of any plan being carried into effect for on this subject :bringing your Majesty's Courts of Law and If no application is made to set aside any Equity in London into one central position, it award within the first seven days of the Term would be desirable that the London Court of next following its publication, or if no rule is Bankruptcy should be removed to the same granted thereon, or if any rule granted thereon locality. Besides the improvement of accom- is afterwards discharged, such award shall be modation, other advantages would be likely to final between the parties ; (s. 9). ensue. Opportunities of more frequent inter- Award may, by authority of Judge on terms, course with the higher functionaries of the be enforced after seven days from publication, law, the presence of a more numerous Bar, and although time for moving to set aside not greater readiness of access to all members of elapsed; (s. 10). the Profession, could not fail to be beneficial T'he Court or Judge may stay proceedings and to promote in various ways the efficiency taken by one party to any instrument in writof the Court. Any supposed inconvenience to ing for a reference to arbitration, on an applitraders of the city of Londom from having to cation after appearance and before plea ; (s. 11). attend a Court situated a short distance west. On the failure of the parties to instrument to ward of its present locality, would be more appoint arbitrators, or of the arbitrators to act than compensated by the additional facilities or appoint umpire or third umpire in terms of which their attorneys would have for combin- deed, a Judge may appoint upon seven clear ing practice in bankruptcy with their other days' notice being given ; (s. 12). legal business, and for readily obtaining, when Every agreement or submission to arbitrarequisite, the assistance of counsel. The faci- tion, whether by deed or instrument in writing lities, too, of proving unopposed debts by affi- not under seal, may be made a rule of Court, davit and the appointment of numerous officers unless a contrary intention appear ; (s. 13), before whom affidavits may be made, render As to the number of the Jury.-If 10 or 11 the locality of the Court'immaterial to the of the jury shall agree, their verdict shall be great body of traders, even of the city of taken and have the same force and effect as if London; while, by reason of the increase of unanimous, and if 10 or 11 cannot agree after the metropolis westward, and the enlargement twelve hours' deliberation, the jury to be disof the area over which the jurisdiction of the charged; (s. 17). London Court extends, the present site has be- As to the Examination of Witnesses and their come less appropriate than it was at the time Oath.--The language of the affirmation instead of its original selection.
of oath is varied; (s. 21). “The assembling of the official assignees, as A party may discredit his own witness if he well as the other ministerial officers of the shall, in the opinion of the Judge, prove adCourt, under one roof, with a view to their verse ; (s. 23). better superintendence and control, and to the As to Deeds, &c., insufficiently stamped.-A more ready transaction of business, was re- proviso is added to s. 30, which directs the commended by the Commissioners for inquir- officer of the Court to receive the duty and peing into Bankruptcy and Insolvency in 1840 ; | nalty on stamping a document at the trial, diNew Statutes effecting alterations in the Law.-Law of Attorneys and Solicitors. recting the enactment shall not extend to any closures would be expedient; but the same document which cannot now be stamped after cannot be proceeded with without the prethe execution thereof on payment of the duty vious authority of Parliament: Be it enacted, and a penalty.
as follows: Error on Special Case. The Court of Error 1. That the said several proposed inclosures is required to draw any inferences of fact from mentioned in the Schedule to this Act be prothe facts stated in the special case which the ceeded with. Court where it was originally decided ought to 2. In citing this Act in other Acts of Parliahave drawn ; (s. 33).
ment, and in legal instruments, it shall be sufAffidavits on new matter. — Leave of the ficient to use either the expression “ The AnCourt or a Judge is required on affidavits in nual Inclosure Act, 1854,” or “The Acts for answer upon new matter in affidavits of oppo- the Inclosure, Exchange, and Improvement of site party (s. 46), and also for the delivery of Land." written interrogatories at any time to the opposite party or his attorney ; (s. 52).
Schedule to which this Act refers, with dates of The equitable replication under s. 86 must
Provisional Orders. begin with the words "for replication on equitable grounds," or words to the like effect,
Heavers Wood Common, Surrey — 3rd and s. 87 provides that the Court or Judge March, 1853. may strike out the equitable plea or replication Lampeter-pont - Stephen, Cardigan - 10th on, such terms as to costs and otherwise as
June, 1853. may seem reasonable.
Iping, Sussex-2nd June, 1853. The continuance of action in case of death,
Cardigan, Cardigan-2nd December, 1853. must be made by summons, and in default of
Barlby, York-31st December, 1853. continuance, a suggestion of default may be
Church Brough Intake, Westmorland-2nd entered and judgment for costs of action and December, 1853. suggestion ; (s. 93).
Curdridge, Southampton - 12th January, The claimant in a second action of ejectment,
1854. where prior action unsuccessful, for same pre
Porlock, Somerset—25th January, 1854. mises against same defendant, may, on applica
Bursledon, Southampton – 12th January, tion to Court or Judge after appearance, be 1854. ordered to give security for costs; (s. 94).
The Oakcutts Woods, Southampton-23rd Writs of execution issued before October 24, January, 1854. 1852, if unexecuted, not to remain in force for Wootton Courtney, Somerset—26th January, more than six months after 24th October, 1854, 1854. unless renewed under the 15 & 16 Vict. c. 76,
Hawkridge, Somerset-26th January, 1854. s. 124; (s. 95).
Tinhead, Wilts--28th January, 1854.
LAW OF ATTORNEYS AND SOat Lancaster and the Court of Pleas at Durham,
LICITORS, (s. 101), and the provisions as to the Masters of the Superior Courts to apply to the Prothonotaries of the Palatinate Courts; (s. 102).
SERVICE OF ARTICLED CLERK UNDER The Court of Queen's Bench to be the Court
AGREEMENT FOR ASSIGNMENT. of Appeal from the Palatinate Courts in refer
A CLERK was articled to an attorney and ence to motions for new trials, or to enter verdicts or nonsuits previously made to the Judges under the articles up to June 26, 1851,
solicitor on Jan. 25, 1849, and duly served of such Courts; (s. 103).
when the attorney, at the request of the
clerk and his father, agreed to assign the NEW STATUTES EFFECTING ALTE- articles to the father and to execute the RATIONS IN THE LAW.
deed of assignment when tendered. The COMMONS' INCLOSURE ACT.
clerk on the same day went to his father's
office and served until Jan. 25, 1854, but 17 Vict. c. 9.
no assignment was executed until Jan. 10, An Act to authorise the Inclosure of certain 1852. On an application for the clerk to
Lands in pursuance of a Report of the In- be at liberty to give the requisite notices of closure Commissioners for England and examination in the ensuing Term, CrompWales. [12th May, 1854.]
ton, J., observed, “The language of the WHEREAS the Inclosure Commissioners for Statute' is very express. I do not see how England and Wales have, in pursuance of service under an agreement for an assign
The Acts for the Inclosure, Exchange, and Improvement of Land,” issued their provi.
ment can be reckoned as service under the sional orders for and concerning the proposed assignment;" and, in granting a rule for the inclosures mentioned in the Schedule to this examination, added, “I am strongly of Act, and have in their Ninth Annual General Report certified their opinion that such in
16 & 7 Vict. c. 73, 8. 3.