Erish Jurist No. 24.-VOL. I. APRIL 14, 1849. PRICE (Per Annum, £1 10s. [Single Number, 9d. The Names of the Gentlemen who favour THE IRISH JURIST with Reports in the several Courts of Law and Equity in Ireland, are as follows: A VERY excellent Bill has been introduced into the House of Commons for the amendment of the Law of Bankruptcy in Ireland, by Messrs. T. O'Brien, J. Reynolds, Grogan, and Napier. No measure creating a change in the Bankrupt code has been passed in this country since the 6 W. 4., c. 14, whilst on the other side of the channel there has been an unintermitting flow of legislation on the subject. The Bill before us, adopts extensively the improvements introduced into the English system, and many of the clauses are taken verbatim, or with some slight alteration from the English acts, especially the 5 and 6 Vict., c. 123, or from Lord Brougham's new Bill. We shall state a few of the most prominent sections, and of the more important changes contemplated. Section 9 reduces the amount of debt, of a petitioning creditor, as follows: a single debt to £50, the debt of two petitioning creditors to £70, and that of three to £100. A creditor is empowered to file an affidavit, in a prescribed form, of his debt, and of his having delivered to the trader an account of the particulars of his demand, and thereupon the Bankrupt Commissioners are empowered to summon the trader before them, and except he be prepared to admit the debt, and pay the creditor, or otherwise satisfy him within fourteen days after personal service of the sum mous, or make oath, that he has a good defence to the debt, and give security for payment of it and the costs of action, if he be unsuccessful, he shall be deemed to have committed an act of bankruptcy, on the fifteenth day after the service of the summons, provided a Commission issue, within two months, after filing of the creditor's affidavit. To guard against the abuse of this process, Section 19, leaves it in the power of the Court, in JOHN BLACKHAM, Esq., and A. HICKEY, Esq., Barristers-atLaw. (FLORENCE M'CARTHY, Esq., and SAMUEL V. PEET, Esq., Barristers-at-Law. CHAS. H. HEMPHILL, Esq., and WILLIAM HICKSON, Esq., Bar risters-at-Law. ROBERT GRIFFIN, Esq., Barrister-at-Law. which the action is brought, to give the Defendant the costs of the action, if the Plaintiff do not recover the sum mentioned in his affidavit, provided there were no reasonable or probable cause for making the affidavit. If a trader do not pay or satisfy a judgment debt on which execution may be sued out, not having a set off thereto, within fourteen days after service of notice requiring payment, he shall be deemed on the fifteenth day to have committed an act of bankruptcy, and the same time is limited for disobedience of a decree of a Court of Equity, or an order in Bankruptcy or Lunacy, directing payment of a sum of money. This Provision is stringent. A declaration of insolvency, a secret transfer of goods-transfers deemed secret, when possession and removal of goods not made within a month after transfer, or two months before Commission— filing petition for arangement between trader and creditor, where petition dismissed, are respectively declared acts of bankruptcy. The present period for suing out a commission of bankruptcy by affidavit of debt and notice to pay, under 3 and 4 Vict., c. 105, s. 8, is forty-one days, the proposed Bill limits the time to twentyone days, and thus makes the law, in this respect, identical with that of England, 1 & 2 Vict., c. 110, s. 8. This mode of creating a bankruptcy is retained, that by a fourteen days summons being a mere public proceeding, and therefore, in some cases inexpedient. The amount of the petitioning creditor's debt, under the twenty-one days notice, is left the same as under the existing law. We do not understand the motive of retaining the larger amount of debt for this mode of proceeding, and the lesser for the more summary process, except that the time for payment is slightly enlarged also. If a Bankrupt do not dispute the commission within two months after advertisment of bankruptcy, the Gazette is conclusive evidence against such bankrupt. The 28th section corresponds with 5 & 6 Vict., c. 122, s. 24, except that the latter only allowed twenty-one days to the bankrupt to dispute the commission, which was too short an interval. The 30th and 10th subsequent sections, relate to the appointment of one or two persons being merchants, brokers, or accountants, or being or having been engaged in trade and residents in Ireland, as official assignees of bankrupts. They are taken from 1 & 2 W. 4, c. 56; 11 & 12 Vict., c. 45, s. 26, (the act for winding up joint stock companies,) 5 & 6Vict., c. 122, 7 & 8 Vict., c. 96. The appointment is vested in the Lord Chancellor, and this change of the law is likely to prove most thoroughly beneficial. The official assignees are at once to receive the bankrupt's estate and effects, be paid a percentage on the amount realized-such percentage to be in the discretion of the Commisioners, and one official assignee is always to act in conjunction with the creditor's assignee, and prior to the appointment of the latter, sell and dispose of the bankrupt's estate. The 40th section which corresponds with art. 173 of Lord Brougham's Bill, empowers the commissioners to set apart a portion of the bankrupt's pay, or half-pay, &c., and in this particular, to place a bankrupt in the position he would be in if he became an insolvent. The 51st section suggests a useful improvement in the present law, it enacts that the warrant of committal for refusing to answer, or not satisfactorily answering, need not specify the questions unanswered, except by reference to the examination or deposition, a copy of which is to be delivered to the prisoner within sixteen hours after committal. At present if a commissioner commit a contumacious bankrupt, every question must be set forth in the warrant of committal. independent of his creditors, the bankrupt is, the All contracts or securities to induce creditors to forbear opposition to the allowance of the certifi cate, are, by section 59, declared void, and the proposed bill goes further than the 40th section of the corresponding English act, 5 & 6 Vict., c. 122, by invalidating, not merely the security, but the bankrupt's certificate. By the 60th section, a penalty of treble the value of money given for for bearance, is imposed on the creditor. The 63rd section preserves the same per centage of allowance to the bankrupt, after certificate, as at present, but postpones its payment to twelve months after the date of the commission, and makes it dependent on the payment of the requisite dividend to the creditors, and prohibits any allowance to a bankrupt who has not been a trader for twelve months, except in the case of the dividend being under ten shillings, when a discretionary power is given to the commissioners to make an allowance, irrespective of the period of trading, provided it does not exceed three per cent, or £300. The 67th section provides for the preservation of the proceedings in the bankruptcy, which are to be deposited with the Registrars, who are made responsible for their safety, and they are to be open to inspection on payment of one shilling; under the present loose system, the attorney for the assignee keeps the proceedings, and on his death they are lost, mislaid, or, at all events, generally useless for ulterior purposes. per The 68th section provides that the appointment of the Secretary of bankrupts, and that of the Registrars, shall continue during good behaviour, and upon a vacancy of the office of clerk of enrolThe present form is thus often very volum-ments, the office to cease, and the duties to be inous, sometimes extending over four or five pages formed by the secretary. The appointment of the closely written. And it is obvious that this system secretary is in the gift of the Chancellor, and the of labour, technicality, and expense was incon- duration of the office has hitherto been measured venient. by that of his own tenure of power, each new Chancellor appointing his own secretary for bankrupts. The 57th section, copied from 5th & 6th Vict., c. 122, s. 38, disentitles a bankrupt to his certificate, if he has lost by gaming or wagering, in one day, £20; or within one year, preceding bankruptcy, £200; or £200 by stockjobbing; or has cancelled or destroyed his books, or made fraudulent entries, concealed his property, or permitted fictitious debts to be proved. The allowance of the certificate is transfered from the creditors to the commissioners by section 57. This places the law of the two countries on the same footing. In future the certificate need not be signed by any creditor, but any creditor may oppose, and the commissioners must certify to the Chancellor, that the bankrupt has made a full discovery, and in all things conformed, the bankrupt must swear that the certificate was obtained fairly and without fraud, and the certificate must be confirmed by the Chancellor, against which confirmation, any creditor may be heard. We think this alteration desirable, the more It is desirable that competent men should not be removed when they have learned their duties, at the same time, we are not insensible to the value of a rapid succession. The 69th section provides, that whenever the bankruptcy fund prove insufficient, the salary of the second commissioner and assistant registrar shall be paid out of the suitors fee fund, the latter to be reimbursed, whenever there shall be a surplus in the bankruptcy and compensation fund. It will be in the recollection of our readers, that the deficiency arose, and in 1845, on argument before the then Master of the Rolls and Sir Edward Sugden, they were of opinion, that the second commissioner had no right to be paid out of the suitors fee fund-an order for that purpose having been made by Lord Plunket. In conse quence of this decision, we believe, Sir Robert Peel, then premier, directed payment out of the consolidated fund, and we are very much disposed to think, that the future payments for both commissioners, should be made thereout likewise. With a view to make the court self-supporting or nearly so, the present scale of fees are too high; and although the suitors fee fund be ample, its surplus may be very well disposed of in diminishing the expense of Chancery documents which, on even the reduced scale, are inordinately extravagant. The object of the 70th section is to remove any doubt arising on the 7th and 8th Vic., c. 90, s. 36, as to the right of detention of goods under attachment, and provides that they shall be delivered up to the assignees on demand. Goods, bona fide seized under an execution, at the date of the commission, cannot be claimed by the assignees, but in that case the process is after judgment; an attachment is but process to compel an appearance. We should rejoice to see a measure brought in by the introducers of the present measure, if not to abolish the process of city attachment altogether, at least greatly to modify it. We know no power capable of being converted into an instrument of greater oppression, than that of issuing a city attachment. The struggling traders of Dublin, are at the mercy of Jew money lenders; to whom they are compelled to resort from the insufficiency of banking accommodation: if the bill be unpaid the affidavit of debt is made, the marshal takes possession, and in the broad glare of day, if the oppressive security be not promptly given, the goods of the trader are swept away to the city stores, and his credit is thereby annihilated; arrest on mesne process was sufficiently injurious to credit, but we do believe it was not half so damaging as the seizure of a trader's goods-concealment in the one case was possible, in the other impracticable. We do earnestly press this subject, more especially upon Mr. Napier, as a member of our own body, and as one whose rising position in the House, will ensure it the attention its importance deserves. We pass over, for the present, some of the succeeding sections-next week we purpose to give a more minute analysis of the whole Bill-which relate principally to improvements in the working of the Bankrupt Court, and give increased power to the Commissioners to compel the attendance of witnesses. The 89th section, enables three-fifths of the creditors, after the schedule of the bankrupt shall have been furnished, to effect a composition, and provides for the superseding of the commisAt present a bankrupt cannot effect this composition, until after his final examination, nor unless nine tenths of his creditors consent; and it is considered that such composition does not bind a creditor who has not proved. sion. Court, may, by act of quasi baukruptcy, vest his property in trustees, obtain protection for his person, and carry out this arrangement with the concurrence of two thirds in number and value of his creditors, unimpeded by the opposition of a hostile or implacable minority. We cordially approve of these clauses, every one in practice finds how desirable and expedient these private arrangements are, how expeditious, how inexpensive, and how merciful; but they are almost universally thwarted by the malignant contumacy of a few small creditors, actuated either by revenge, malice, or the expectation that their opposition wil be bought off. We care not to conceal the deep indignation which we entertain towards low beings of this class, and we therefore rejoice at seeing a measure likely to be made law, which will give them a death blow. It is rather anomalous that in this country there should be two concurrent and co-existing systems, applicable to one class of traders. We allude to the banker's acts, and the bankrupt code. The former, though limited to a small class in operatior, are obviously the mode to be selected by that class. They possess the advantage to the banker of avoiding public exposure, and their adoption rests with himself. He has only in the first instance, to obtain the concurrence of trustees-the approval of the majority of the creditors may, we apprehend, be expost facto,--but the machinery of the acts, from antiquity and other causes, requires remodelling. It is too expensive ;-for example, the deeds of conveyance, are not exempt from stamp duty, and there are practical dfficulties in taking proofs of debts; but their original spirit and design was excellent. Uniformity and codification are however, so desirable, that we think they should now be repealed. The sections to which we have last referred are conceived in the same humane spirit which gave the banker's bill existence, and obviate the necessity for their retention. Even without being formally repealed-which we suggest they should--it is probable, if the proposed measure become law, that they will die of disuse. In the case of Carmichael v. Waterford and Limerick Railway Company (reported, 1 Ir. Jur. 186), which was an action on the case for executing a capias ad satis-faciendum, for the full amount of a judgment; a portion of the judgment debt having been paid, the question arose, whether, in the absence of proof of express malice, malice could be inferred from mere negligence. The facts were, the company had recovered a judgment against the plaintiff (in this action) in the sum of £585, with costs; all of which, except £274 0s. 4d., was satisfied by the plaintiff, notwithstanding which the defendants wilfully and maliciously caused the plaintiff to be arrested under an execution endorsed for the whole amount. The execution had been issued by the partner of the defendant's solicitor residing in Dublin, in ignorance of the payment made in the country; and the learned Judge who tried the case told the jury, that if the mistake arose from negligence, they were at liberty to infer malice. This direction the court held to be erro- | the cases we have referred to, was an action on neous, saying, that "the action was maintainable the case for a malicious arrest without probable only on the ground of proof of actual malice-cause. The declaration stated the arrest of the malice being the gist of the action." plaintiff, on a second writ for the same debt he had previously been held to bail for. Plea, that the last mentioned action was still depending. On a demurrer to this plea, Lord Denman, C.J., says, "It is contended for the plaintiff, that this is an action for a malicious abuse of the process of the court, by a second arrest for the same cause. I am unwilling to hold, that the action is maintainable; for the defendant, in arresting under a second writ, does not necessarily appear to have done anything which he might not lawfully do." And Coleridge, J., in the same case, in answer to the objection, that an action for the abuse of the process of the court would be a novelty, says, "If an action is not sustainable under such circumstances, we must be prepared to hold, that the process of the court may be abused by a plaintiff for purposes however wanton and malicious. We may suppose the case of a party harrassing the defendant under the forms of law, by maliciously suing out three writs for the same cause on the same day, and successively arresting the de The case of De Medina v. Grove (10 Q. B. 152) and referred to in the argument in Carmichael v. Limerick and Waterford Railway Company, turned on a question of pleading, the declaration not having averred either malice or want of probable cause, merely stating that the defendant "wrongfully and injuriously" had caused the plaintiff to be taken in execution. Wilde, C.J., in delivering the judgment of the court of error, says, "The law allows every person to employ its process for the purpose of trying his rights, without subjecting him to any liability, unless he acts maliciously and without probable cause. The question arising upon this record is, whether the action is maintainable without the usual averments of malice and want of probable cause. Even if there be a sufficient statement of malice in this declaration, there is no sufficient statement of want of probable cause. It has been admitted, that the issuing of mesne process is a primâ facie right, but a fortiori is the execution a prima facie right." "On the other hand, the plaintiff here might have applied-fendant on all three of them. In such a case, the if the state of facts justified the application either before the arrest, to have satisfaction entered up, or after the arrest, to be discharged. It might, therefore, be a question, whether, with all proper averments on the record, the proper remedy would be by action; for it might be contended, that what is complained of by the plaintiff is a mere irregularity." This dictum implies, and would go to shew that no action will lie; and we think that the true deduction derivable from the principles stated in the authorities on this branch of the law. It is almost needless to draw the attention of the reader to the distinction between issuing, and acting on, an execution for more than the actual amount of the judgment, and the case we have been hitherto considering, of a party being arrested for the full amount of a judgment, a portion of which has been paid. In the former case, the very act of executing the process of the court for more than the judgment creditor has himself alleged to be due, is prima facie evidence of malice, and none need be alleged, the want of probable cause being apparent in the excess of the writ of execution over the judgment. In the latter, the unsatisfied judgment giving a prima facie right, or, in other words, a probable cause, malice-according to the decision in Carmichael v. Waterford and Limerick Railway Company-must be averred and proved, or, as we are inclined to think, in accordance with the view of Wilde, C. J., before referred to, there is no ground of action whatever. principle of the law allows an action, although in form it may have some novelty." The declaration, not having been specially demurred to, was upheld, on the ground that the averment, without "reasonable or probable cause," might be intended to mean, that the defendant knew he had no ground for the second arrest. If this case be law-and there appears to be no reason to think otherwise, supported as it is by the judgment of the court, in De Medina v. Grove-it would appear clear, that an action for malicious arrest, without probable cause. will not lie, where the creditor employs either mesne or final process, except he be guilty of a malicious abuse, in which case, the question would be one of express malice; and the case of Saxon v. Castle (6 Ad. & El. 652), although the arrest complained of, was upon final process, is consistent with this view, as the judg ment on which the process issued was only to be entered on a certain condition precedent being performed by the creditor, which was not bona fide done. The court held, that the action was well conceived, but arrested the judgment, there being no averment of malice, which they held to be a necessary ingredient in the action. Independently of direct authority, the view we have been submitting, appears to follow from the principles in which this form of action is founded, and the proof necessary to sustain it. Those rules are, that if there be no probable cause, malice may be inferred, although the jury are not bound to infer it. Mitchell v. Jenkins, (5 B. & Ad. 558; S. C. Nev. & M. 301). Secondly-If there be probable proved, will render the defendant liable. Per Parke, J. Mitchell v. Jenkins (5 B. & Ad. 588). If then, mesne process gives a prima facie right, or probable cause, and that, as was said in the In stating this proposition, we are not to be understood as saying, that if the plaintiff in the action had been wilfully and maliciously perse-cause, no amount of malice, however distinctly cuted, that he is wholly without remedy, because his creditor has this prima facie right or probable cause. There is another form of action on the case, in which the creditor so acting would appear to be liable-that for abusing the process of the court, as was suggested in the case of Heywood v. Collinge (9 Ad. & El. 268), which, as in both 1 Ir. Jur. p. 64. As to issuing concurrent writs, see Fennell v. Dempsey, judgment of the court, in De Medina v. Grove, the reasons are a fortiori, with respect to final process. "No amount of malice, however distinctly proved, will render the plaintiff liable." His remedy if the evidence of express malice will warrant the proceeding-must be for the abuse of the process of the court the form of action which appears to have been adopted in Porter v. Weston, (8 Scott. 25). The statute 7 Anne, c. 7, s. 2, lr.;* affords a remedy for injuries of this nature, by giving treble damages to the party against whom such execution issues, if it appears that the execution creditor has "wilfully, fraudulently and maliciously," overcharged him. In Mills v. Nerney, (Cook & Alc. 81), the court held, that the three requisites of the statute must concur to complete the liability of the defendant; and that the mere circumstance of an execution being marked for a larger sum than was due, did not per se, warrant the jury in finding that it was "fraudulently, and maliciously over-marked." This is, we conceive, the same conclusion as that to be derived from an action for abuse of the process of the court, and that to which, in fact, the Court of Queen's Bench have come, in the case of Carmichaelv. Limerick & Waterford Railway Company; by deciding that the gist of the action was the express malice; decision which we submit, for the reasons stated, would not be consistent with holding it to be an action for over-marking without probable cause; in which the jury would be at liberty to infer malice. (Continued from p. 176.) CAP. XCVIII. An act to amend the law for the trial of election petitions. [4th September, 1848.] Sec. 1. 7&8 Vict. c. 103, repealed, except as to acts done, &c. Repeal of 7 & 8 Vict. c. 103, not to revive, 9 G. 4, c. 22, and certain parts of 42 G. 3, c. 106, and 47 G. 3, c. 14. 2. What shall be deemed election petitions. 3. Before petition presented recognizances to be entered into. 4. Persons entering into recognizances to make affidavits of sufficiency. 5. Form of recognizance as set forth in schedule. 6. Persons siyning election petition may pay money into the bank, instead of finding security. 7. No petition to be received unless endorsed by the examiner of recognizances. 8. How petitions may be withdrawn. 9 Speaker to appoint examiner of recognizances. 10. In case of illness, &c. of examiner of recognizances, speaker to appoint a fit person to perform the duties. 11. How recognizances are to be entered into. 12. Names of sureties, &c. to be kept in office of examiner of recognizances, and to be open to inspection. 13. Recognizance may be objected to for invalidity, or for insufficiency of sureties. 14. Notice of objections to be published in the office of the examiner, and copies may be taken. 15. Examiner of recognizances to decide on the objec tions. 16. In case of death of a surety, the petitioner may pay the money into the bank. 17. Examiner of recognizances to report whether or not recognizances are objectionable. 18. Proceedings when the seat becomes vacant, or the sitting member declines to defend his return. 3 Geo. 1, c. 15, s. 17, Eng. analogous. 52. Provision for cases where the sitting member does not defend, and no party has been admitted to defend. 53. General committee empowered to change the day for choosing election committee. 54. Notice of petitions and panels. 55. Lists of voters intended to be objected to shall be delivered to the clerk of the general committee. 56. Committee for trying petitions to be chosen. 57. In case general committee do not agree in choosing a committee to try the petition, they shall adjourn. 58. Chairman to be chosen by the members on the chairman's panel, and his name communicated to the general committee 59. Members upon chairmen's panel to make regulations. When committee chosen, the parties to be called in to hear the names read over. 60. 61. General committee to proceed in order with all the petitions appointed for that day. 62. Within a certain time parties may object to members on account of disqualification. |