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The Legal Observer,

AND

SOLICITORS' JOURNAL.

SATURDAY, JULY 15, 1854.

SUMMARY EXECUTION ON BILLS

According to the notices of motions OF EXCHANGE.

entered on the proceedings of the House of

Commons, there are no less than 69 amendOn the first announcement of the Bill ments or alterations proposed by five Memfor granting summary execution on unpaid bers of Parliament, to be brought forward bills of exchange, we believe in never oc- in Committee, for the improvement of this curred to any one acquainted with the sub- extraordinary piece of legislation, thus ject, that its provisions would diminish the transplanted from Modern Athens. These emoluments of the Profession ; but it was notices occupy about four folio pages, and doubted whether the public would really appear to us to render it hopeless, even if gain anything by the alteration, beyond the measure were right in principle, for any giving the power of issuing execution some satisfactory progress to be made during the days earlier than under the Common Law very few weeks that remain of the present Procedure Act. As, however, the Legis. Session. lature is bound to consider the case of Let it be recollected, that this project of debtors as well as creditors, and the general summary diligence" is but a modicum of interest of the trading community, it ap- the numerous differences which exist bepeared most seriously questionable whether tween the Laws of England and Scotland a notice of six days was sufficient before and the practice of their respective Courts, issuing execution.

and the constitution of the Courts themOur countrymen north of the Tweed selves. We last week cited from the have hitherto preferred their ancient laws learned Commissioners on Mercantile Law and mode of procedure, and to the present 19 points of difference regarding bills and time we have not been so much enamoured notes only; and we this week set forth 18 of their system of jurisprudence as to imitate more on the Law of Debtor and Creditor. it in the southern part of the island. Very Whilst her Majesty's Commissioners are suddenly of late, however, we have been thus communicating some of the results of called upon to admire certain parts of their research, and asking all the Law SoScottish Judicature, and amongst others cieties in the kingdom and the whole comthe course of "summary diligence,” as it mercial community, for further information is called, with reference to dishonoured on our conflicting laws, and the safest bills of exchange ; and no small excitement means of assimilating them, it is surely preseems to prevail in the House of Commons mature to take up one solitary point and regarding the more than railway speed with press its separate discussion on the attenwhich drawers, acceptors, and indorsers of tion of the Legislature, amidst so many imbills of exchange who make default in pay- portant subjects, and especially whilst the ment, are to be sent to prison or their Bill for the further amendment of our goods and chattels seized by the sheriff. Common Law Procedure urgently demands It is a wonderful discovery, now for the the earliest consideration of the Law Memfirst time made in England, that its trade bers of the House. and commerce can be essentially benefited One of the notices of amendment comby following an example set in Scotland prises the restoration of a clause giving nearly two centuries ago.

jurisdiction to the County Courts in regisYOL. XLVIII. No. 1,375,

M

194

Summary Execution on Bills of Exchange. tering protested bills, and issuing rapid titions which have been presented to Parliaexecution up to 501. We beg to inquirement on the subject of this Bill. They are how the provisions of the Act can possibly as follow : be carried into effect by a Judge who has

June 23. From the Committee of the Liver. to hold Courts at a dozen towns every pool Guardian Society for the Protection of month? In London a Judge is sitting every Trade, in favour of the restoration of the day, and before him applications can be clauses enabling attorneys to protest bills

, and readily made within the six days; but sup- to register the protests under the Act in the pose a bill registered at York, and in a day County Court up to 501.

From the Committee of the Bristol and or two the Judge is at Ripon, is the debtor

Clifton Trades' Association, in favour of the to follow him, in order to obtain a hearing Bill. on a summons to stay execution till a point

June 29. From the attorneys and solicitors of law be argued or a question of fact tried of Newcastle-on-Tyne and Gateshead, for the before a jury? or are all defences on bills restoration of the clauses as to attorneys and and notes not exceeding 501., to be ex- the County Courts. cluded? We understand, indeed, that se- June 30. From the President and Vice-Preveral of the County Court Judges who are sidents of the Society of Attorneys and Solicibest acquainted with their duties, have been tors of Ireland, against the extension of the consulted by the authorities who promote 11th clause for the registration of protests in

Bill to Ireland, and particularly against the the measure, and that, although "nothing the Courts at Westminster, and against the loath” to the extension of their jurisdic- 15th clause, requiring security as a preliminary tion, they candidly acknowledge that the step to a defence, and praying for the restoraCounty Courts can render no assistance in tion of the clause, authorising attorneys tu note this new mode of procedure.

and protest bills. The supposition, therefore, that pre

July 8. From bankers and merchants of ference was given to town over country prac- but limiting the protest of bills to notaries

,

Portsmouth, praying that the Bill may pass, titioners, appears to be unfounded. The

and restoring the County Court clause. County Court clauses, so far as we can From the Lord Mayor, aldermen, and burlearn, were struck out by the promoters of gesses of Dublin, stating that the provisions of the Bill as impracticable. It must be ad- the Bill will inflict great injury on various mitted, however, that at Liverpool and important interests in Ireland, and praying Manchester, where a Judge sits perma- that the Bill may not be extended to that nently, the case might be different, and at country. Liverpool, we are informed, the number of

It will be observed from this list that bills there payable is very large ; but for only one of the numerous Law Societies in the most part the bills, though accepted in England has presented a petition on the all parts of the country, are made payable subject. The Law Society of Ireland repuat a London banker's, and the amount re- diates the Bill altogether, but if it must mitted through the country correspondent pass, calls for the restoration of the clause of the house.i

in favour of attorneys. It may be right to All these practical matters require to be mention that the London notaries had no weighed and considered in effecting a change hand in originating the Bill, and we incline such as is contemplated in the Bill before to think that they do not care for its passParliament. It is very inexpedient, if not ing. It is very doubtful whether they would dangerous, to rush into new legislation derive any ultimate advantage from it. The without a full knowledge of all the facts effect would probably be very largely to di. and circumstances, and probable conse- minish the number of bills, particularly of quences connected with the change. There that class which, not being provided for at may be many other topics, besides those we the banker's where they are made payable, have referred to, which require investiga- are handed over at five o'clock to the notion before we adopt the Scotch mode of tary. Whether this would be counterprocedure in this important class of mer- balanced by the protests under the Act may cantile transactions.

be doubtful. We have no expectation that It may be proper to add a list of the pe- the friends of the notaries in the House will

be strenuous supporters of the measure " It does not appear that the members either but if it should be pressed forward by the for Liverpool or Manchester have as yet op: promoters, we believe the notaries both it posed the Bill, nor have the Law Societies of either of those places interfered by petition, but town and country will strongly resist th there is a petition from the Liverpool Guardian restoration of the clause in favour of th Society.

attorneys. We think, therefore, the Bil

Summary Excecution on Bills of Exchange.-Bankruptcy Bill.

195 should be opposed altogether, on the ground manent appointment as registrar, together with that it is unnecessary and inexpedient, and such further sum for his travelling expenses, that at all events it must be postponed till as the Lord Chancellor may order; (s. 5). the whole Law of Bills of Exchange can be either in London or in a country district, is

Where a commissioner or registrar, acting reconsidered, and brought into one general temporarily hindered from discharging his Act.

duty by illness or unavoidable absence, the

Lord Chancellor may appoint a fit person (who We adverted in a postscript to our last in the case of a commissioner hall be a serNumber, to the Act of 9 & 10 Wm. 3, c. geant or barrister-at-law of seven years' stand17, by which bills may be noted and pro- ing) to act in his stead, (s. 6); and also in the tested in places where there are no notaries, case of absence for any reasonable cause, durby " a substantial person,” in the presence whole the period of two calendar months in

ing such period as shall not exceed in the of two witnesses. We are informed that

any one period of twelve consecutive calendar the notaries are in the habit of sending months, (s. 7); and such serjeant, barrister, or bills to attorneys in such places, and pay other person shall

, while his appointment retheir usual professional charges for noting or mains in force, have all the jurisdiction, rights, protesting; and the notaries contend, there- powers, duties, and authorities belonging to fore, that there would be no failure of means the office of the commissioner or registrar ; to carry the Act into effect. But surely it (s. 8). would be a most cumbersome and expensive usher shall be hereafter made without the

No appointment of a messenger or of an process to require three persons to note and sanction of the Lord Chancellor first obtained ; protest a bill when an attorney might, like (s. 9). a notary, do it alone.

After Sept. 1, 1854, the practice of the Court of nominating brokers to make inventories

of the effects of bankrupts shall be disconBANKRUPTCY BILL.

tinued; and the duties now discharged by

brokers shall be discharged by the messengers; This Bill, which is brought in by the Lord (s. 10). Chancellor, proposes to enact as follow :- Repeal of 5 & 6 Vict. c. 122, s. 76, which 1st. As to the Oficers of the Court.

enacts that a succeeding Judge, Commissioner,

registrar, and deputy registrar shall be paid The vacancies now existing in the offices of such proportionate part of their salaries as Commissioners for the Birmingham and Bris- shall accrue from the day of the resignation, tol districts, and of Registrar for the Bristol death, or removal from office of the preceding district, shall not be filled up unless the Lord Judge, &c., and of 7 & 8 Vict. c. 96, s. 49, Chancellor shall declare that, having regard to which enacts, that the successor of any registhe state of the business, the vacancies qught to trar or deputy registrar dying, resigning, or be filled up; and thereupon they may be filled being removed, shall be entitled to receive up, as if this Act had not been passed; (s. 1)., such portion of his salary as shall accrue from

Upon any future vacancy in the office of the day of such death, resignation, or reCommissioner or of registrar in the Birming- moval; and the salaries of all Commissioners ham, Bristol, Leeds, Liverpool, or Manchester and other officers of the Court of Bankdistrict, the Lord Chancellor may declare that ruptcy to be hereafter appointed shall comsuch vacancies shall not be filled up until fur- mence from the time when they shall be ther order, and thereupon the same shall not appointed; (s. 11). be filled up; (s. 2).

The Lord Chancellor shall, with the advice The provisions of the 1 & 2 W. 4, c. 56, s. of the Lords Justices, by order, direct accord. 9, are repealed, and the chief registrar or any ing to what scale the remuneration of an ofof the registrars of the Court of Bankruptcy, ficial assignee for his services shall be calcu. acting either in London or in the country, may lated; and thereupon the 12 & 13 Vict. c. 106, be removed upon a certificate from the Lords s. 44, shall be repealed ; and the provisions Justices of the Court of Appeal in Chancery, respecting such remuneration contained in the of some sufficient reason to be named therein | 130th General Order of October 19, 1852, for such removal; (s. 3).

shall remain in force until the same shall Where, upon a vacancy in the office of re- be abrogated or varied under this Act; gistrar for a country district, it shall seem to (s. 12). the Lord Chancellor necessary that some per

2nd. As to the Fees. son should be appointed to assist the Commissioner, but inexpedient that a permanent ap

The Lord Chancellor may, with the advice pointment should be made, the Lord Chancel- of the Lords Justices, vary or abolish the lor may appoint a fit person to act as registrar fees payable in relation to any of the proceeduntil further order, (s. 4); and to receive such ings in matters of bankruptcy or arrangeremuneration for his services, not exceeding ment in the Court of Bankruptcy, or the Court the amount to which he would bave been en- of Appeal in Chancery, and fix other fees titled as salary for the same period under a per- not higher than by such Act prescribed ;

196

Banloruptcy Bill. and the provisions of the Act respecting The several registrars in the country shall stamps are extended to such stamps as may daily transmit by post copies of all declarations be required by any order under this Act; of insolvency filed to the chief registrar, whio (s. 13).

shall on the receipt thereof cause the same to The Lord Chancellor may, with the advice be entered in a book to be kept by him for of the Lords Justices, abolish the per-centage that purpose (s. 19); and a copy of such des under the 12 & 13 Vict. c. 106, s. 54, made pay- claration purporting to be certified by a regisable to the chief registrar's account, or reduce trar of a country district, as a true copy of a the lowest rate thereof below one-eighth of a declaration filed in the Court for that district, pound per cent., and again re-impose, and shall be received as evidence of such declarafrom time to time regulate and vary the same, tion having been filed; (s. 20). but so that the highest rate shall not exceed 4th. As to Adjudication of Bankruptcy and the highest rate payable by the Act (s. 14);

amount of Assets. and also fix a maximum sunt to be paid in any matter of bankruptcy or arrangement Vict. c. 106, s. 78, shall, upon his appearance,

If any trader summoned under the 12 & 13 in respect of the fees, stamp duties, percentages, or other charges payable to the sign an admission in such form as in the said chief "registrar's account, and raise or lower Act mentioned, for part only of the demand in the same;

and when in any matter the respect of which he shall have been summontotal sum paid in respect of such fees, &c., ed, and shall not within seven days next after shall amount to the maximum sum' fixed the filing of such admission, pay or tender and (to be ascertained and certified in such man

offer to such creditor the amount so admitted, ner and by such person as the Lord Chan-or secure or compound for the same to the cellor, with the advice aforesaid, may direct), shall be deemed to have committed an act of

satisfaction of the creditor, every such trader then there shall not be any further fee, &c., payable in relation to the same matter, or

bankruptcy on the eighth day after the filing any of the proceedings therein to such ac- judication of bankruptcy shall be filed against

of such admission, provided a petition for adcount; (s. 15).

him within two months from the filing of the 3rd. As to varying the Rules and Orders of affidavit on which the summons to such trader Practice, Costs, &c.

shall have issued; (s. 21). Repeal of 12 & 13 Vict. c. 106, s. 8, and Repeal of 12 & 13 Vict. c. 206, s. 93, from the Lord Chancellor may, with the advice of September 1, 1854; and any trader liable to the Lords Justices, from time to time by order become bankrupt may petition for adjudication vary or abrogate the rules and orders in re- of bankruptcy against himself, but unless he lation to matters of bankruptcy or arrange- shall forthwith, after filing his petition and bement, and make and alter or revoke such fore adjudication of bankruptcy, make it aporders as may seem expedient for the better pear to the satisfaction of the Court that his execution of such Act, and this Act, and for available estate is sufficient to produce the sum the regulation of the practice in matters of of 1501. at the least, his petition shall be disbankruptcy and arrangement, and the form missed, and no further petition shall be filed and mode of proceeding before the Court.of by him in the same district, without the leave Bankruptcy and the Court of Appeal, and for of the Court first obtained, and the adjudica. the regulation of the duties of the several tion on any further petition shall be subject to officers of the Court of Bankruptcy, and the the like condition as to his available estate, fees, costs, charges, and allowances, as well of and the form of petition for that purpose, spęsolicitors and of messengers and ushers, as cified in Schedule (O) to the Act

, shall be al. also of auctioneers, appraisers, brokers, va- tered by the words " produce the sum of 1501. luers, and accountants, employed by assignees, at the least” being inserted therein in lieu of messengers, or bankrupts, and for the taxa- the words “pay his creditors at least five shiltion thereof; (s. 16).

lings in the pound;" (ss. 22, 23). Every declaration of insolvency to be filed Proof by a trader petitioning as aforesaid of on or after September 1, 1854, 'for the pur- the sufficiency of his available estate to the exposes of the Bankrupt Law Consolidation tent required by this Act shall have the same Act, 1849, as altered by the 15 & 16 Vict

. effect for all the purposes of the Bankrupt Law c. 77, shall, in lieu of being filed in the office Consolidation Act, 1849, as proof to the extent of the chief registrar, be filed in the Court required by that Act would now have for the within the district whereof the trader filing the same purposes; (s. 24). same shall have resided or carried on business After the appointment of an official assignee for six calendar months next immediately pre- to act in any bankruptcy, and before the choice ceding the time of the filing thereof; and the of assignees by the creditors, the messenger same shall be filed, in the case of the London shall follow the instructions of the official asdistrict, in the office of the chief registrar, and signee, subject to the directions of the Court, in the case of the country districts with the with respect to the taking and keeping posrespective registrars (s. 17); and the filing of session of any part of the bankrupt's estate; such declaration with the registrar of a country (s. 25). district shall have the same effect as the filing thereof in the office of the chief registrar would!

5th. Disputing Adjudication, fe. now have; (s. 18).

The Bankrupt Law Consolidation Act, 1849,

Bankruptcy Bill.-Criminal Justice (Metropolis) Bill.

197 8. 233, limiting the time within which a person ance for any diminution in value in such aradjudged bankrupt may dispute the adjudica- ticles, occasioned by his having continued to tion, shall, on or after September 1, 1854, be use them since the bankruptcy, as the Com. construed as if the words "two calendar missioner may think reasonable (to be either months ” were therein inserted in lieu of the paid by the bankrupt in money or the amount words "twenty-one days;" (s. 26).

thereof in value retained in goods); (s. 29). Every bankrupt shall be entitled to retain

This Act shall be construed together with such articles of household furniture, and tools, the Bankrupt Law Consolidation Act, 1949, as implements of trade, and other like necessaries, one Act, and may be cited as “The Bankas he shall specify, not exceeding in the whole ruptcy Act, 1854;" (s. 30). the value of 20l.; and such excepted articles shall not be subject to be sold or taken in execution at the suit of any creditor; and there CRIMINAL JUSTICE (METROPOLIS) shall be filed an inventory of such excepted

BILL. articles, with a valuation of the same and a certificate by the appraiser, attesting the truth thereof, and stating when and where such ar

Tuss Bill, which is to commence after Noticles were valued'; and the reasonable ex-vember 2 next, proposes to enact as follows:penses and charge of such valuation when

Whenever a magistrate shall commit to custaxed shall be paid to the appraiser by the tody or hold to bail any person for trial at the official assignee out of the proceeds of the Central Criminal Court or Session of the estate ; (s. 27).

Peace, an information shall be filed in lieu of a 6th. Postponement of Sale of Furniture, 8:c., bill of indictment presented to the grand jury and Allowance to Bankrupt.

(s. 1); and which shall have the same effect in The messenger of the Court, upon taking otherwise ; (s. 2).

all respects as an indictment as to trial or possession of the remainder of the bankruptos

No information shall be quashed, nor achousehold furniture, tools, and implements of trade, shall make an inventory and valuation quittal taken, .by reason that the offence thereof, and deliver the same to the official charged differs in its legal definition from the assignee; and where the bankrupt shall, by tainer, or for which the party was held to bail;

offence specified in the commitment or dewriting under his hand, request the assignees not to dispose of such household furniture, provided the information apply to some act or tools, or implements of trade, the same shali offence disclosed or to be inferred from the not be disposed of without previous order of depositions or from the commitment or rethe Commissioner; and the Commissioner cognizance; and provided that the commitmay, upon the application of the bankrupt, ting magistrate or the Court shall have power postpone the removal and sale of the same for to direct an indictment in any case ; (s. 3). such time as he shall think fit, having regard

No objection shall be allowed to any into the probable value of the other property of formation, except such as may be made to inthe bankrupt, and may permit the same to re- dictments, and it shall not be necessary in the main in the use and occupation of the bank, information or in making up the record to set rupt, upon such terms and conditions and with forth any proceeding before the magistrate ; such security as may seem proper, so as to (s. 4). protect the same from being sold for the

pay- Nothing in the Act shall extend to authorise ment of any rent, rates, or taxes which might any information to be filed in cases of treason become due thereafter, or of any debt, claim, or misprision of treason, or offences against or demand whatsoever ; and the Commis- the Queen's title, prerogative, person, or gom sioner may, at any time when he shall think it vernment, or against either House of ParliaDecessary, order the same to be taken by the ment; (s. 5). messenger or assignee, and to be sold for the

It shall not be necessary to summon a grand benefit of the creditors; (s. 28).

jury at every session of the Central Criminal If the other effects of the bankrupt shall pay Court, or of the Peace for the metropolitan to the creditors such an amount of dividend as district, but only at such sessions as the shall entitle the bankrupt to an allowance in judges and justices or any two of them may money, and the household furniture, tools, and think necessary, not being fewer than four implements of trade shall not have been sold, sessions in every year ; nor at the sessions for the bankrupt shall accept the same at the va- London and Southwark unless 16 days before luation originally put on the same, or a suffi- there shall be any business to render the atcient portion thereof, to be selected by him, tendance of the jury in the opinion of two with the approbation of the assignees, as and justices necessary; (s. 6). for his allowance instead of money; and such articles so accepted shall be delivered to, and shall mean every judge, person, or Court

The word “magistrate” and “justice” revest in the bankrupt as his own property, having power to commit or hold to bail for and the official assignee shall sell for the be- trial for any criminal offence. nefit of the creditors such portions as the bankrupt shall not be entitled to retain, and such deduction may be made from his allow

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