Summary Execution on Bills of Exchange Bill. 221 ing of any of the parties, and therefore his pro-bill of excharge,-enabling him in the short 1. The Bill is unnecessary and inexpedient, the present law being sufficient, or an alteration preferable to a new system. quently the debtor, in order to do justice to his creditors in general, and prevent such undue preference must be driven to commit an act of bankruptcy for the purpose of securing a just and an equal distribution of his assets. 5. The danger of collusion in favour of fictitious creditors will be increased. of collusion between dishonest debtors and The provisions of the Bill will afford means creditors to the prejudice of bona fide creditors; for a debtor might obtain credit to a large The improvements which have been effected amount without giving acceptances, and before in the course of proceeding in the Common the time of such credit expired, grant bills to Law Courts render the new remedy proposed fictitious or favoured creditors, friends, or reby the Bill unnecessary and inexpedient. Where lations, and enable them to issue execution there is no defence to an action on a bill of ex-against the whole of the property. change, judgment may now be obtained in covenants. eight days. The Legislature has deemed it on the non-payment of bills than bonds or 2. The operation of the Bill will be oppressive, particularly on indorsers of bills of exchange. For for non-payment, than to the parties to whom land not applicable to England. The " summary diligence" on bills of exchange having always prevailed in Scotland, there has been no opportunity of comparing its effects with the mode of proceeding in England; and the bill transactions there being The Bill will operate with great severity on the indorsers of bills of exchange, who, in case of the default of the acceptor, will be liable to execution at the expiration of six days, although they may have received no notice of the dishonour, or from the shortness of the period allowed, may not have it in their power to inquire into the points necessary to be de-comparatively few in number, the example does termined before paying or resisting the de mand. 3. The strict conditions on which a defence is to be permitted are unreasonable. not justify its adoption in England in lieu of the improved and sufficient mode of proceeding in the Common Law Courts. 8. This alteration is one only of 19 difland relating to bills. ferences in the laws of Scotland and Eng It will be a great hardship on parties to a bill of exchange, who may often be in entire ignorance of the facts, or may have a perfectly It is submitted that it is altogether inexpegood defence against the holder,--which at the dient to pass the Bill, even if no other objecmoment they may be unable to substantiate, ortions could be alleged against it, because it which may depend on negative circumstances, forms but a small part only of the proposed -to throw the burden of proof on the de- plan of assimilating the laws of England, Irefendant, who, according to the provisions of the present Bill, is to show by affidavit that his defence is sufficient, and also (if the Judge think fit) to find security for the debt and costs. 4. The preference given to bill-holders will be unjust to other creditors. The Bill will be injurious to creditors in general, by giving a preference to the holder of a land, and Scotland. In the stateinent and questions just issued by the mercantile law Commissioners, there are no less than 19 points of difference between the laws of England and Ireland and those of Scotland with regard to bills of ex hange. In order to determine how many of these 19 differences in the law of Scotland are preferable, or not, to those of England and Ireland, or in what respects they may both require alteration, much consideration is 222 Summary Execution on Bills of Exchange Bill. necessary. The present Bill proposes to deal with No. 15, being one only of these 19 points. It is submitted that the whole of these conflicting matters should be considered together, and that it is dangerous to legislate upon the entire subject by fractions, or upon one only of many subjects, each bearing more or less on the others. 9. The whole law of bills of exchange should be comprised in one Act. Although the present measure relates chiefly to the summary mode of procedure to enforce the payment of a bill, yet it involves also several important alterations of the law in regard to bills of exchange generally; for instance, it proposes to throw the burden of proof on the debtor, and deny him a trial, unless he can give, not merely bail, but unconditional security for payment of the debt and costs; and under the 19th section, effects a material alteration in the bankrupt law. Even if it could be considered as a mere procedure bill, still it is important that the law, which is thus to be carried into effect differently from the present course, should be settled, before effecting so important a change in the mode of procedure. It is, therefore, submitted, that at all events this Bill, which is confined to one point, should be postponed till the Commissioners have made their report upon the several important rules in the laws of Scotland, which differ from those of England and Ireland, and the alterations which they recommend to be adopted. 10. The Act cannot be carried into effect in towns where there are no notaries, unless attorneys be authorised to note and protest bills for the purposes of the Act. It is further submitted, that it will be difficult, if not impracticable, to carry the Act into effect in the larger part of the towns of England and Wales, because there are only 128 towns where notaries have been appointed. It will, consequently, give a most unfair advantage to those towns in which nota ries are to be found. attorneys of the Superior Courts to act as notaries beyond ten miles of the city of London for the convenience and accommodation of each district," such admissions are entirely in the discretion of the Master of Faculties; and the admission to the office of notary being subjected to a stamp of 304, besides the fees of office, the appointment is rarely sought for; and, consequently, the means of carrying the Act into full or convenient operation will fail, unless the attorneys and solicitors are authorised to perform the duty of noting and protesting the bills for the purposes of the Act. The Manchester Law Association urge the following objections against the Bill:- "It will give holders of bills and notes very great facilities for recovering the amounts; but it will have a serious effect on parties to bills, especially indorsers, who may have the bills protested and registered against them, without expecting it. True they may pay as soon as they are served with an order; but this will not be a very pleasant position to be placed in, without fault of theirs. "But on the community at large the Act, if it passes, will operate very prejudicially. A creditor who is not a bill holder will be over. reached by the bill holder; he may have sued for his demand, and used all diligence to get it, but he cannot, under the most favourable circumstances, occupy less than a month in having his cause tried, and he may have to wait six, if the assizes do not suit; ineanwhile the debtor's property. This cannot be right; the bill holder may come in and sweep off all one creditor should not have more facilities than another. "The measure seems uncalled for and inexpedient as well as unjust to all creditors, except holders of bills or notes; and even as regards these parties, it may be very doubtful whether the advantages they are to gain (at the expense of all others) are not more than counter-balanced by the uncertainty which will be thrown over all commercial dealings. For By the 9 & 10 Wm. 3, c. 17, it is provided against these instruments no care or caution that bills of exchange may be protested by a could be an effectual guard, even if there were notary public, and, "in default of such notary the means of searching the registries, which public, by any other substantial person of the the Bill, as now framed, does not provide. city, town, or place, in the presence of two or more credible witnesses, refusal or neglect being first made of due payment of the same." But these provisions are inadequate for the purposes contemplated in the Bill; for, whether the two credible witnesses are to be present at the time of the presentation of the bill for payment, or at the time of signing the protest, or at both those times, it is a burdensome and inconvenient course of proceeding to require three persons to certify a fact, which, in London and other places, is done by a single notary, and which might be effectually done by a duly qualified attorney resident on the spot. The process may suit Scotland, where the system of bills is so much at variance from that which prevails in England; but it seems wholly inapplicable in such a community as ours, and where such a different mode of payment is generally acted upon. "The effect of clause 19 will be, to make void any judgment or order obtained under the Act, and every execution issued thereon within two months of the filing of a petition for adjudication of bankruptcy against the debtor. The almost inevitable result of this will be, to drive all estates into bankruptcy, whether they be large or small; for creditors who have ob3 & 4 Wm. 4, c. 70, s. 2, tained a preference under the Act are not And althou of Faculties at Doctors' likely to come into any composition, or to give the Master 1 Law of Attorneys.-Law of Costs.-Church Leaseholds Capitular Estates' Act. "And it may be observed, that where there are several bills or notes, only those of early date will derive any benefit. "To small and unsecured creditors, more especially, the measure, if passed, will be a positive injustice." The 42 Notaries of Liverpool, who are also Attorneys, have petitioned against the restoration of the clause for letting in their brethren, alleging that they have served an apprenticeship, and paid premiums, stamps, and fees of admission. - 223 right of a disclaiming defendant to costs in foreclosure suits, said, that the effect of all the later authorities was-"First, that in a suit for foreclosure and redemption of mortgages, where, a defendant disclaims, in such a manner as to show that he never had and never claimed an interest, at or after the filing of the bill, then he is entitled to his costs. Secondly, if a defendant having an interest, shows that he disclaimed or offered to disclaim before the institution of the suit, there also he is entitled to his costs. Thirdly, that where a defendant having an interest, allows himself to be made a LAW OF ATTORNEYS AND SOLI-party to the suit, and does not disclaim or CITORS. TAXATION OF BILL OF COSTS OF MORT- offer to disclaim till he puts in his answer or THE executrix of a mortgagor being desirous to pay off the mortgage, and have a transfer to a trustee for her, the transfer was prepared and approved, and the bill of casts of the mortgagee's solicitor, amounting to 187, odd, was sent on December 20, 1850, and an appointment made to complete two days afterwards. The deed was pay his costs, but not otherwise. In this case, executed at the meeting upon the principal no evidence has been gone into, and therefore and interest being paid, and 107. was ten- the defendant is not entitled to his costs." dered for the costs, but the solicitors declined to part with the title deeds until the remainder of their bill, for which they claimed a lien, was paid. The amount was paid under protest, and in February, 1853, the executrix petitioned for a taxation, on the ground of pressure and an overcharge of five guineas" for many attendances and very numerous letters from 1842 to 1851," to the petitioner. The Master of the Rolls, in dismissing the petition with costs, said, "You ask me to reverse Re Browne (15 Beav. 61), which was affirmed by the Lords Justices (1 De G., MN. & G. 322). The Court will not open the settlement of a bill of costs, un less there be both pressure and objectionable items, or the overcharges are so gross as to amount to fraud. This bill was paid only under this pressure: the solicitor says, I have a lien for my costs, and will not deliver up the deeds unless you pay the bill." In re Finch, 16 Beav. 585. 1 WHERE ONE OBJECT OF BILL FAILED. Where, of the two objects sought by a bill, the one succeeded and the other failed, and it was impossible properly or accurately to separate the costs properly attributable to each, a decree was made without costs on either side. Rochdale Canal Company v. King, 16 Beav. 630. 224 Church Leaseholds-Capitular Estates' ḍet-Fees of the Courts of Law. the grant and release hereby made unto the sioned by the exercise of the powers hereby exsaid Dean and Chapter of Durham, their suc- cepted and reserved as aforesaid, such annual cessors and assigns, all mines and pits now compensation, if the parties cannot agree to be being and to be opened, and all other mines, estimated by the adjudication of two indifferent seams, and beds of coal and other minerals persons, one to be chosen by each party, or whatsoever, in or under the said lands, heredi- by the umpire of such two indifferent per taments, and premises respectively, or any of sons." them, or any part or parts thereof respectively. And also, except and always reserved out of THE following is extracted from a Return of all the Fees received by the Masters of the Courts of Queen's Bench, Common Pleas, and Exchequer of Pleas, from the 1st day of Michaelmas Term, 1852, to the day before Michaelmas Term, 1853, inclusive, distinguishing the amounts received for each respective class these presents and the grant made, all such FEES OF THE COURTS OF LAW. rights of way, and other rights and easements, and so much of the said lands, or grounds, and premises as shall be necessary or proper for having access to, and winning, getting, and carrying away, and, if desired, of converting, manufacturing, or otherwise disposing of the said minerais and substances herein before excepted. And also, all or any other minerals and substances whatsoever, of or belonging to the said Dean or Chapter of Durham, their successors, grantees, lessees, or assigns, or of or belonging of fees: to any other corporation, or any other person or persons arising or produced from or under the lands hereby granted and released, or intended so to be, or any other lands or ground for agents and workmen's houses, pit and heaproom, furnaces or engine-houses, and all other conveniences, together with full and exclusive power for the said Dean and Chapter of Durham, and their grantees and assignees, to use any existing shafts, levels, adits, roads, or ways, or to make and exclusively have, and use any shafts, levels, adits, roads, or ways, drains or watercourses, through, within, under, over, or across the said lands or grounds for the purposes before-mentioned, or any of them. And also, for all or any of the purposes aforesaid, to form any road or way to make any cutting, embankment, bridge, tunnel, or other work, and to lay down iron rails or other materials, and for the purposes of using any road or way, to erect and to have any engine houses, stationhouses, or other erections, or any depôts, or yards, or other conveniences, and to travel on any such road or way with any engine, and in any manner whatsoever, whether of present use or future invention. And also, with full power for the said dean and chapter, their successors and grantees, lessees, and assigns, to do any act for the foregoing exceptions, or any of them, in, upon, over or under, or with respect to the said lands and grounds that they could have done were they the sole and absolute owners of the fee simple in possession thereof, but such way, leaves, and rights, so herein: before reserved to the said dean and chapter, their successors and assigns shall not be liable to be defeated or destroyed by effluxion of time or non-user of the same. And all and singular, the rights, liberties, matters, and things herebefore excepted and reserved to the said dean and chapter, their successors, grantees, lessees, and assigns shall be taken and considered as commencing, and to be had and exercised from Of the salaries and expenses paid out of such receipts during the same period, distin guishing the amount of salaries from the expenses: Of the pensions paid during the same period to retired officers of those Courts: And, of the compensations paid during the same period to the holders of abolished offices of such Courts. 1. QUEEN'S BENCH. 27,334 writs (except writs of trial renewed writs, at 2s. 6d. sheriff, at 1s.. 8,476 appearances entered, at 2s. 404 special rules, exceeding six £ s. d. 6,833 10 0 70 12 6 8 0 10 6 0 503 847 12 0 42 4 0 2,635 18 0 13 12 0 30 10 144 0 0 10 20 folios, per folio, at 6d. 5,505 judgments by default, at 5s. 1,376 5 0 3,363 final judgments, otherwise than judgment by default, at 1,681 10 0 1,333 14 0 100 10 0 the execution of these presents. They, the The return comprises returns from other said Dean and Chapter of Durham, their suc-officers of the Courts, but they are not at precessors and assigns paying annually reasonable sent complete. The extracts, therefore, are compensation for spoil of ground, to be occa- confined to the Masters' returns.-ED. L. O. 49 under 100%., at 10s. 66 above that sum, at 20s. 269 certificates, at 1s. 1,221 office copies of præcipe, or other proceedings, 6d, per folio 11,162 searches, if not more than two Terms, at 6d. . 7,918 searches, exceeding two and not more than four Terms, at 1s. 195 searches, exceeding four terms, or a general search, at 2's 6d. 1,804 affidavits, affirmations, &c., taken before the Master, at ls. Filing two recognizance or security in ejectment or error, at 2s. 6d. Six allowances and justification of bail, at 3s.. Filing 412 affidavits and inrolling articles previous to the admission of attorneys, at 58. Received on account of fees under the old table, altered on 24th November, 1852 20,241 writs, except writ of trial or subpoena, at 5s.. 262 concurrent, alias, pluries, or renewed writs, at 2s. 6d. 137 writs of trial, at 2s. 2,404 writs of subœna before a Judge or Master, at 2s.. £5,060 5 W 32 15 13 14 0 123 writs of subpoena before the sheriff, at 1s.. 4,773 appearances entered, at 28. 0 519 appearances, each defendant after the first, at 18. £17,117 14 6 Taxing bills of costs 1,324 18 10 £18,442 13 4 25 19 0 871 6 0 988 10 755 815 44 60 20 37 15 14 0 0 50 0 0 3 12 0 139 18 0 219 12 6 3 13 0 18 5 0 |