Bankrupts and Insolvent Debtors Inquiry.

"24. Do you think it more to the advantage of the creditor, that the debtor, being in prison at his suit, should be the petitioner for relief against the general law, and have to show his title to the indulgence; or that the onus should lie on the creditor of proving matter to justify a criminal commitment?

$55

payment through the medium of some pro- [be allowed to dispute the adjudication before perty concealed, that a judgment creditor his property is taken possession of? Or if you should have the power of bringing his debtor think it essential, having regard to the interests in a summary way before a proper tribunal for of creditors and the prevention of frauds, that examination as to his property, and giving such the application to adjudicate a bankruptcy tribunal a power, in the event of his answers should, in the first instance, be ex parte, and not being satisfactory, to imprison the debtor without notice to the trader, what is your until he answered to the satisfaction of the opinion of a provision of the following kind,court, or satisfied the judgment? that upon an application to make a party a bankrupt, on ex parte evidence of the debt, trading, and act of bankruptcy, an order should be made to show cause only, but that, upon such order, the messenger should take possession of the trader's property, and keep possession until the order was made absolute or discharged; and that, unless the trader, within a certain time mentioned in such order, showed sufficient cause to the contrary, the said order, after proof of notice thereof to the trader, should be made absolute, and the party advertised a bankrupt forthwith; or, having due regard to the injury which a seizure of property must produce to a trader's credit, do you think it would be more consistent with justice, and at the same time not injurious to creditors, that, instead of allowing the seizure of property upon an ex parte application, in all cases, upon an order to show cause being made, such seizure should be confined to cases upon affidavits, showing probable cause of the trader being about to abscond, or make away with his property?

"25. Do you, from your experience, believe that the abolition of arrest on mesne process has been beneficial, or not, to creditors?

"26. Do you, from your experience, believe that it has been beneficial, or not, to debtors? "27. On what sort of dealings, or business, is your experience on this head founded?

28. Is it, or is it not, in your opinion essential to the due administration of justice in bankruptcy, that each judge or commissioner should have full power to enforce his orders, if not appealed against, and to repress contempts of court in a summary way, by fine or imprisonment?

29. By the present practice, when a creditor wishes to make a man a bankrupt, he makes an affidavit of his debt, which is filed in the office of the secretary of bankrupts, and executes a bond to the Great Seal in the penalty of 2007., conditioned to proceed in the fiat; upon this a petition is prepared, directed to the Lord Chancellor, praying for the issue of a fiat, whereupon the fiat is signed by the Lord Chancellor, and issued as of course: in your opinion is there any and what advantage to the public in requiring the fiat or authority of the Lord Chancellor to authorize the creditor to prosecute his complaint?

30. Would it, in your opinion, be more advantageous that the proceedings should originate before the judge or commissioner who is to adjudicate upon the bankruptcy?

35. By the present law a bankrupt, who has done no act amounting to acquiescence, may bring an action at any time (if not barred by the statute of limitations) against his assignees, to try the validity of the fiat; so, a person claiming adversely to the assignees, if he has not by his conduct or otherwise, admitted their title, may at any time (if not barred by the statute of limitations) bring an action against them, and dispute the validity of a fiat; what is your opinion of this state of the law?

36. Do you see any objection, particularly if the party be allowed to show cause against the adjudication in the manner suggested in the previous query, in providing that the adjudication, if the bankrupt do not appeal against it within a certain period, should be conclusive in all cases?

"31. Would it, in your opinion, be advantageous to the public that the judge or commissioner who adjudicates the bankruptcy, should have jurisdiction to decide upon all "37. Would you rather in such case confine matters in bankruptcy that used to be decided the conclusiveness of the adjudication to the by the Lord Chancellor, and may now be de-bankrupt, and persons indebted to his estate, cided by the Court of Review, subject to ap-in any action or suit brought by an assignee for peal? a debt or demand, for which the bankrupt himself might, had he not been adjudged bankrupt, have sustained any action or suit, or would you confine it, as in the Irish act, 6 and 7 Will. IV., c. 14, s. 115, to actions brought by the assignees, where the debt sought to be recovered shall not exceed 207. ?

"32. Would it, in your opinion, be desirable that, in cases of appeal, the appellant should give security for the performance of the judgment, if affirmed, and also for the costs?

" 33. The proceeding to make a trader a bankrupt is an ex parte proceeding, and a trader may be adjudicated a bankrupt without any previous intimation: what is your opinion of this state of the law?

"38. Supposing you would confine the conclusiveness of the adjudication as above stated, do you see any objection, with the view of 34. Supposing that you object to the pre-making persons who have claims against assent state of the law as to the adjudication, do signees prosecute such claims without delay, you think a trader should, in the first instance, in providing that, in actions at law or suits in have notice of the intended proceeding, and equity against an assignee by any other person,

Bankrupts and Insolvent Debtors Inquiry:

“43. Instead of requiring the previous con- "58. Have you had reason to be satisfied sent of creditors to the certificate, would it in with the administration of bankrupts' estates in your opinion be more advisable to allow any of the country. If not, state the grounds of your the creditors of the bankrupt to be heard before dissatisfaction, and particularly whether the the judge or commissioner, against his signing constitution of the courts of commissioners in the certificate? the country, the uncertainty attending these "44. Do you think, judging from your expe-tribunals both with respect to the law, and the rience, that the supineness of creditors would, practice, the costs of working fiats in the in the generality of cases, make the obtaining country, the difficulty of access to the proceedthe certificate an easy thing, by the commis-ings, the want of publicity, and the checks atsioner or judge certifying a conformity to the bankrupt law, and the creditors failing to attend?

"46. In your opinion, should the conduct of the bankrupt in the mode of contracting debts, “59. What remedies occur to you as pracor in disposing of his property before the bank-ticable for any defects which you have observed ruptcy, form part of the consideration in grant- in the administration of bankruptcy in the ing the certificate? country?

"47. Would it, in your opinion, be advisable "60. What is your opinion of the following in any, and if so, in what class of cases to with-plan which has been suggested to this commishold the granting of the certificate, until after an audit or the payment of a dividend, or any, and what other time?

"49. Would it, in your opinion, be advan-only?tageous to the public, that the judge or commissioner, before whom a bankrupt passes his last examination, should have power to punish such bankrupt by imprisonment, for a limited time, for great misconduct or fraud?

"50. In your opinion, is it more advantageous to creditors that the property of a bankrupt should be administered under a fiat in bankruptcy, or a trust deed?

"51. Do you believe that trust-deeds are more resorted to than formerly, and if so, what do you believe to be the cause?

Bankrupts and Insolvent Debtors Inquiry.—The Privilege Question.

THE PRIVILEGE QUESTION.

357

in such country districts before any one or more of the judges of the court, subject to appeal from the decision of any one judge either in London FROM an introductory preface by George or the country to three of the judges in Lon- Bowyer, Esq., A.M., Barrister at Law, to a don, and in certain matters and under certain reprint of Sir Humphrey Mackworth's restrictions from the three to the Lord Chan-pamphlet on Ashby v. White (which has been

cellor.

"All appeals before the three judges to be proceeded upon by viva voce examination of witnesses, (as now in the Subdivision Courts) unless the court think it expedient under special circumstances to receive testimony by affidavit.

66

sent us-published by G. F Cooper), we extract the following passages on the question of the expediency or necessity of the privilege now claimed by the House of Commons. "How have members hitherto regulated their conduct with respect to speeches and letters to their constituents?

"Speeches and letters are practically the most important means of the two, for the justification of members before their constitutents,and yet they never have been protected by

Appeals before the Lord Chancellor to be decided upon the evidence taken before the three judges, and upon that alone, unless the Lord Chancellor think it expedient to have further evidence by vivá voce examination or by affidavit, and where further viva voce evi-privilege. The difficulty, when it arises, is dence required, the Lord Chancellor to remit disposed of in a practical manner, according the case to the three judges for that purpose. to circumstances. It is not often that a "The judges of the court sitting in London, member is called upon to justify a vote given or the major part of them, to make general in Parliament, by communications of a libelrules and orders to be approved of by the Lord lous character. But when this does happen, Chancellor for regulating the forms of pro- the constituent knows that the member is ceedings, and the practice to be observed in responsible to the law for whatever he says or the court both in London and in the country. writes out of Parliament; and, on the other "The proceedings before any of the judges hand, the persons whose conduct he finds it in the country to be transmitted to the court in necessary to reflect upon, are aware that when London, to be records of the court, and to be the member has said or written no more than kept as such among the records thereof, but the occasion required in a matter of public the solicitors prosecuting any matter of bank-import, and (as is generally the case) of public ruptcy or insolvency in the country to have office copies of such proceedings in the same manner as solicitors do now of proceedings in the Court of bankruptcy.

notoriety, they would have little or no chance of recovering more than nominal damages. So it would be with Parliamentary papers sent to constituents. The constituents would know

61. Might not other matters for which that some papers could not be communicated now special commissions are issued, such as to them. If their representative is a minister, commissions of lunacy,-for assigning guar- they cannot expect to hear from him things dians, for examination of witnesses, for which it may be of great consequence for the taking answers, &c.-be advantageously prose-justification of his votes, but which his privy cuted before any one of the judges of such councillor's oath, or the interests of his party, prevent him from divulging. In both cases, the constituents should, on the most constitutional principles, exercise forbearance towards their representative, who must be presumed to possess, in some degree, the confidence of a majority of their body.

court?

"62. It has been suggested to this commission, that instead of having local judges for the country districts, it would be more advantageous that the law of bankruptcy for England and Wales should be administered in the court in London, with the aid of circuits, for certain "But if, among the papers communicated to matters, and with the power of appointing ex- them by the member (published by the authoaminers where necessary,-as, for instance, all rity of the House, as being fit to be made adjudications of bankruptcy, and choice of as- public), there should be some expressions on signees to take place in London,-the last ex- which an action could be brought, there is no amination of bankrupts, and audits, and divi-solid reason to suppose that a jury would give dends to take place before a judge on his circuit, and the court to have power to appoint examiners for counties or districts for special purposes, what is your opinion of this plan, and of the relative merits of the two; and state further, what part, if any, of the business under a fiat in bankruptcy you think, from your experience, could be conveniently and efficiently dispatched on circuit ?

"63. If you do not approve of either of the plans above suggested, have you any, and what other course to suggest for the better administration of the law relating to bankrupts and insolvent debtors throughout England and Wales?"

damages against him or the publisher. Nobody supposes that the heavy dainages given in the case of Stockdale v. Hansard were grounded on any other reason than the plea of privilege; that plea made it of importance that the point of law arising thereon should be brought to issue in a decisive manner, for the sake of future plaintiffs, against whom groundless charges might be made by a petitioner or a witness before a parliamentary committee, and disseminated throughout the kingdom in the imposing form of a Parliamentary paper.

"The exercise of very ordinary discretion by a standing committee of the House, to whom, in doubtful cases, it might be referred,

whether certain papers should be published,[necessary for the House to pay the damages, would reduce the number of cases in which by a vote of public money. such a question would arise to something very insignificant.

Again, it may be questioned, whether a member is, in strictness, morally justified in disseminating what is clearly a libel, for the sake of shewing the grounds on which he acted.

But, however convenient it may be to members that there should be no restriction to their power of laying before their constituents all the materials on which their votes are grounded; that cannot, surely, be absolutely necessary, unless the character of a member be that of a delegate or procurator, bound to account with those whose mouth-piece he is, for all his acts done as such. Convenience is not sufficient to establish a privilege; necessity must be shown. It would be very convenient that the Commons should have a power of examining witnesses on oath, but they have it not. But a stronger argument might be urged, that the House of Commons-the grand inquest of the nation, who may impeach the greatest persons in the realm for the highest crimes known to the law-should have a power of examining on oath, which is exercised by every petty Court in the kingdom, than any that can be brought forward in support of the privilege of investing a printer with an immunity from all law in the publication of parliamentary papers. It might, indeed, be argued with some force, that the power to examine on oath is a necessary consequence of the privilege of publishing the result of the examinations, in the manner, and with the immunities contended for.

"It is argued, that unless the privilege claimed in Stockdale v. Hansard is established, it will not be expedient to print any parliamentary papers, except for the use of members. But it is evident that there are a multitude of documents relating to law, finance, statistics, and public works, printed by order of Parliament, which contain nothing that the greatest ingenuity could torture into a libel. Probably this is the most useful information of the kind that can be published to the community at large. People are sharp-sighted enough to find out grievances against public servants and others, without parliamentary papers. But there must be very few, if indeed there are any cases, in which it would be even desirable that those parts of a document which contain criminatory matter, should be communicated to the public in that shape; or, that they should be brought before any persons but those who have to decide on the matters therein contained. Those parts might, in many cases, be left out, after the requisite number of copies have been struck off for members, and the remainder printed for the public. In some cases, however, it would be necessary to confine the whole document to the use of members. With these precautions, it is apprehended, that a verdict would hardly ever be given against the publishers of the House for libel. But if such a case should occur, it would be

"Such a vote would of course be unpopular, and that unpopularity would produce greater caution in the committee entrusted with the supervision of the printed papers. It is apprehended that, under such a system, the public would obtain all the information requisite for every practical and constitutional purpose.

It would, however, be desirable to enact a law securing members from liability to an action, in cases where parliamentary papers, not intended for the use of any persons but meinhers, accidentally passes into other hands. It should be incumbent upon the prosecutor to show, in such cases, an intention on the part of the member to injure him. The prosecutor should also be required to deny distinctly, by affidavit, every material fact in the supposed libel.

"These provisions would enable the members to make a sufficiently free use of parliamentary papers for all practical purposes, without depriving the subject of that security against defamation of the most formidable kind, to which the laws and ordinary justice alike entitle him.

"It would also deserve grave consideration whether the same privilege, which belongs to published reports of proceedings in Courts of Law, ought not to be extended by the legis lature to parliamentary papers, containing the evidence on which bills of pains and penalties, and addresses of both Houses for the removal of pnblic officers, are founded; and also whether in the last-mentioned species of case, the Commons ought not to be invested with a power of examining on oath.

"Those proceedings being the judicial remedy provided by the constitution in certain extraordinary cases, ought, it would seem, to be clothed with the privileges belonging to other proceedings of like nature. The same principle seems applicable to investigations before election committees.

"Reasons which are obvious render it doubtful whether any facilities should be given to proceedings by bill of pains and penalties, but there is not perhaps any sufficiently strong ground to question the expediency of investing the House of Commons with power to examine on oath, in the case of an address to the crown, for the removal of a Judge, or other public officer.

It is submitted to the reader, whether upon close examination, it does not appear that though the privilege contended for of pubfishing parliamentary papers to the whole nation,-of, in fact, carrying on a trade in parliamentary papers under cover of a total immunity from the laws, may be convenient in certain respects, yet it is unnecessary. But nothing short of absolute necessity could justify the existence of a power in any person or body of men, however august, to set them selves above the laws whereby the rights of the subject are protected from injuries, which it is the chief object of all civil society to prevent.

"If,' says Mr. Pemberton, in his most ad

The Privilege Question.-Practical Points of General Interest

mirable letter, the order of the House of Commons justifies the publication of libels,' (or if that term be objected to, in circulation of false statements injurious to individuals), it can, by parity of reasoning, justify the violation of copyright; it may, in fact, justify any act or wrong whatever.'

"The authority which the House of Commons ought to have, and must have with the nation, renders such a power in the hands of that assembly the more dangerous.

"It is frequently extremely difficult for a man to cope with a private libeller. But who is sufficiently powerful not to be almost overwhelmed by a libel published with the sanction of the House of Commons? What then would be the condition of a man so placed, if he is to be precluded from even going into a court of justice for redress ?

"We must not conceal from ourselves, that in the course of possible, though at present not probable events, a time may come when a majority of the House of Commons may be disposed to use the privilege of publishing parliamentary papers for factious or malignant purposes. We must not allow our respect for that great assembly to render us forgetful of the danger attending all uncontrollable irresponsible power, aud the evil of leaving any wrong without a legal remedy.

359

PRACTICAL POINTS OF GENERAL
INTEREST.

PROMISSORY NOTE.

In the case of Whitcomb v. Whiting, Dougl. 652, it was held that one of two joint makers of a promissory note might, by acknowledgment or part payment, take the case out of the Statute of Limitations as against the other. It will be seen from the following case that Whitcomb v. Whiting is still the law on this point, notwithstanding some contradictory decisions.

whether payment of interest by one of two Purke, B.-The question in this case was, makers of a promissory note, made after the lapse of six years from the time when the note became due, took the case out of the Statute of Limitations, with regard to the other co-maker. Mr. Platt relied upon the cases of Atkins v. Tredgold, 2 B. & C. 23; 3 D. & R. 200; and Slater v. Lawson, 1 B. & Adol. 396, as making a distinction, and throwing a doubt upon the old case of Whitcomb v. Whiting, Dougl. 652, which decided that one of two joint makers of a promissory note might, by acknowledgment Not only,' says Hume, (A.D. 1640,) the or part payment, take the case out of the present disposition of the nation insured im- statute as against the other. After those punity to libellers,a new method of framing two cases, undoubtedly, some degree of and dispersing libels was invented by the leaders of popular discontent; petitions to parlia-doubt might fairly exist as to the propriety ment were drawn, craving redress against par- of the decision in the case of Whitcomb ticular grievances, and when a sufficient v. Whiting; and it does seem a strange number of signatures were procured, the thing to say, that where a person has enpetitions were presented to the Commons and tered into a joint and several promissory immediately published. These petitions be-note with another person, he thereby makes came secret bonds of association among the subscribers, and seemed to give undoubted sanctioned authority to the complaint which they contained.'

་་

This remarkable passage (borrowed from the great advocate referred to above) is sufficient to show that the danger apprehended from this species of privilege cannot be considered entirely visionary.

"Dangerfield's case is an instance of a still more formidable abuse. There, a majority of the House published a calumnious statement, for the purpose of what, in modern times, would be called agitation.

"Is the recurrence of such proceedings impossible?

different aspect of political affairs.

a

that other his agent, with authority, by acknowledgment or payment of interest, to enter into a new contract for him. But since the decisions in Atkins v. Tredgold, and Slater v. Lawson, the Court of King's Bench have twice decided that payments by one of two joint makers of a promissory note is sufficient to take the case out of the

statute as against the other. The first of these cases was that of Burleigh v. Stott, 8 B. & C. 36, 2 Man. & R. 93, where the defendant was sued as the joint and several maker of a promissory note; and there the other joint maker was enough to take the Court held, that payment of interest by the

"The question is of so much consequence, that it should not be answered with reference to the present only; but after prudent consi-case out of the statute as against the dederation of what may take place under fendant; and that it was to be considered as a promise by both, so as to make both "The best security for the liberty of the liable. And since the decision in that case, subject, and the balance of the constitution, the Court of King's Bench have come to will be found in a strict adherence to the the same conclusion in the case of Manderprincples on which justice is usually admi-ston v. Robertson, 4 Man. & Ryl. 440;

nistered.

"Nothing but the most cogent and irresist- which was argued on the 22d of May, 1829. able necessity can justify a departure from I have discovered my paper book in that those principles, and the denial of a remedy case, which, it appears, was argued by Mr. where there is a wrong." Platt himself; and the Court decided there