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Bankrupts and Insolvent Debtors Inquiry.
$55 payment through the medium of some pro. I 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 “24. Do you think it more to the advantage bankrupt, on ex parte evidence of the debt, of the creditor, that the debtor, being in prison trading, and act of bankruptcy, an order should at his suit, should be the petitioner for relief be made to show cause only, but that, upon against the general law, and have to show his such order, the messenger should take possestitle to the indulgence; or that the onus should sion of the trader's property, and keep posseslie on the creditor of proving matter to justify sion until the order was made absolute or disa criminal commitment ?
charged; and that, unless the trader, within a “25. Do you, from your experience, believe certain time mentioned in such order, showed that the abolition of arrest on mesne process sufficient cause to the contrary, the said order, has been beneficial, or not, to creditors ? after proof of notice thereof to the trader,
“ 26. Do you, from your experience, believe should be made absolute, and the party adverthat it has been beneficial, or not, to debtors ? tised a bankrupt forthwith ; or, having due re
“ 27. On what sort of dealings, or business, gard to the injury which a seizure of property is your experience on this head founded ?
must produce to a trader's credit, do you
think “28. Is it, or is it not, in your opinion es- it would be more consistent with justice, and sential to the due administration of justice in at the same time not injurious to creditors, bankruptcy, that each judge or commissioner that, instead of allowing the seizure of property should have full power to enforce his orders, if upon an ex parte application, in all cases
, upon not appealed against, and to repress contempts an order to show cause being made, such of court in a summary way, by fine or im- seizure should be confined to cases upon aftiprisonment?
davits, showing probable cause of the trader “ 29. By the present practice, when a cre- being about to abscond, or make away with ditor wishes to make a man a bankrupt, he his property? makes an affidavit of his debt, which is filed in “35. By the present law a bankrupt, who the office of the secretary of bankrupts, and has done no act amounting to acquiescence, executes a bond to the Great Seal in the may bring an action at any time (if not barred penalty of 2001., conditioned to proceed in the by the statute of limitations) against his asfiat; upon this a petition is prepared, directed signees, to try the validity of the fiat ; so, a to the Lord Chancellor, praying for the issue person claiming adversely to the assignees, if of a fiat, whereupon the fiat is signed by the he has not by his conduct or otherwise, adLord Chancellor, and issued as of course : in mitted their title, may at any time (if not barred your opinion is there any and what advantage by the statute of limitations) bring an action to the public in requiring the fiat or authority against them, and dispute the validity of a of the Lord Chancellor to authorize the creditor fiat; what is your opinion of this state of the to prosecute his complaint ?
law ? * 30. Would it, in your opinion, be more “36. Do you see any objection, particularly advantageous that the proceedings should if the party be allowed to show cause against originate before the judge or commissioner the adjudication in the manner suggested in who is to adjudicate upon the bankruptcy? the previous query, in providing that the adju
“31. Would it, in your opinion, be advan- dication, if the bankrupt do not appeal against tageous to the public that the judge or com- it within a certain period, should be conclusive missioner who adjudicates the bankruptcy, in all cases ? 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 “32. Would it, in your opinion, be desirable himself might, had he not been adjudged bankthat, in cases of appeal, the appellant should rupt, have sustained any action or suit, or would give security for the performance of the judg- you contine it, as in the Irish act, 6 and 7 Will. ment, if affirmed, and also for the costs ? IV., c. 14, s. 115, to actions brought by the
“33. The proceeding to make a trader a assignees, where the debt sought to be recobankrupt is an ex parte proceeding, and a vered shall not exceed 201. ? trader may be adjudicated a bankrupt without “38. Supposing you would confine the conany previous intimation : what is your opinion clusiveness of the adjudication as above stated, of this state of the law ?
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. the adjudication should be final, or that no “52. If, in any cases, a trust-deed is to be proof should be required at the trial or hearing, preferred, does that arise from the expense of of the petitioning creditor's debt, trading, or prosecuting a fiat in the Court of Bankruptcy ? act of bankruptcy, unless the declaration be “53. Do you think that the Court of Bankdelivered, or bill filed, within a certain period ruptcy should have any, and what power over after the adjudication be advertised, or cause the trustees under such deeds, and what proof action or suit accrue against such assignee, visions do you recommend to this purpose ? as well as requiring notice, as now, under the “54. Do you think it would be desirable to 90th and 91st sections of the 6 Geo. IV., cap. abolish the fee of 101. on issuing the fiat, and 16, of the party's intention to dispute some, the fee of 201., paid into court on the choice of and which of such matters?
assignees, and in lieu thereof, to require the “39. What is your opinion of the present payment into court of a regulated per centage law, which requires the signature of a certain on all property passing through the court; or number of the bankrupt's creditors, to testify in what other way do you think it would be their consent to his having his certificate ? desirable to regulate the fees of the court, so
“40. Do you think that the certificate by as not to be a burthen upon small estates ? the judge or commissioner of the bankrupt's “55. Should the official assignees, in your conformity to the statutes, and of his having opinion, be paid out of a joint fund, or out of made a full discovery of his estate and effects, each estate? ought to depend on the previous consent of any “56. In your opinion ought the official asof the creditors ?
signee to be liable for damages or costs in any “41. Have you found in your experience action or suit for anything done by him in exethat the necessity of obtaining such consent, in cution of the duties imposed upon him as such many cases, occasions much expense to the official assignee? bankrupt?
“57. Have you suffered by failures in the “42. Can you suggest any mode by which country, or have you had experience in the such expense might be diminished ?
working of fiats of bankruptcy in the country? “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 certi icate?
the country, the uncertainty attending these "44. Do you think, judying 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 tendant thereupon, the delay in getting in the bankrupt law, and the creditors failing to at-property, the safety of the funds when coltend?
lected, the time of making dividends, the num“45. Or would this be likely to happen from ber and the amount of the dividends, the abthe difficulty which an injured creditor would sence of any sufficient motive to secure activity have in establishing his case against the op- on the part of assignees, or whether any and posing efforts of the bankrupt's friends? which of the above matters form grounds of
“46. In your opinion, should the conduct of dissatisfaction ? the bankrupt in the mode of contracting debts, “5:). 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 sion, either as a plan for administering the law an audit or the payment of a dividend, or any, both of bankruptcy and insolvency throughout and what other time?
England and Wales, in the event of the Insol“48. Would you suggest any, and what other vent Debtors' Court being abolished, or as a alteration with regard to the ċertificate ? plan for administering the law of bankruptcy
“49. Would it, in your opinion, be advan- only?tageous to the public, that the judge or com- The Court of Review to be abolished. missioner, before whom a bankrupt passes his “To have one court for the administration of last examination, should have power to punish the laws relating to bankrupts and insolvents, such bankrupt by imprisonment, for a limited such court to consist of a certain number of cotime, for great misconduct or fraud ?
ordinate judges, some (as the present commis“50. In your opinion, is it more advan- sioners) to be stationed in London, others in tageous to creditors that the property of a certain districts throughout the country, to be bankrupt should be administered under a fiat determined upon. in bankruptcy, or a trust deed ?
“The court to have original jurisdiction in “51. Do you believe that trust-deeds are all matters of bankruptcy and insolvency submore resorted to than formerly, and if so, whatject to appeal. do you believe to be the cause?
“ The law to be administered in London and
Bankrupts and Insolvent Debtors Inquiry.--The Privilege Question. 357 in such country districts before any one or more THE PRIVILEGE QUESTION. 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 sent us – published by G. F Cooper), we exproceeded upon by virá roce examination of tract the following passages on the question witnesses, (as now in the Subdivision Courts) of the expediency or necessity of the priviunless the court think it expedient under spe- lege now claimed by the House of Commons. cial circumstances to receive testimony by affi- “ How have members hitherto regulated davit.
their conduct with respect to speeches and “ Appeals before the Lord Chancellor to be letters to their constituents ? decided upon the evidence taken before the
“Speeches and letters are practically the three judges, and upon that alone, unless the mostiinportant means of the two, for the justifiLord Chancellor think it expedient to have cation of members before their constitutents, further evidence by vivá voce examination or and yet they riever have been protected by 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
"The judges of the court sitting in London, member is called upon 10 justify a vote given or the major part of them, to make general in Parliainent, 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 band, the persons whose conduct he finds it in the country to be transmitted to the court in necessary io 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 notoriety, they would have little or no chance ottice copies of such proceedings in the same of recovering inore than nominal damages. manner as solicitors do now of proceedings in So it would be with Pa: liainentary papers sent the Court of bankruptcy.
to constituents. The constituents would know “61. Might not other matters for which that some papers could not be coinmunicated now special commissions are issued, such as to them. It ibeir representative is a minister, commissions of lunacy,—for assigning guar- they cannot expect io 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 Oatlı, or the interests of his party, court?
prevent him from divulging. In both cases, *62. It has been suggested to this commis- the constituents should, on the most constision, that instead of having local judges for the tutional principles, exercise forbearance tocountry districts, it would be more advan-wards their representative, who must be pretageous that the law of bankruptcy for England sumed to possess, in some degree, the confiand Wales should be administered in the court dence of a majority of their body. in London, with the aid of circuits, for certain “But if, among the papers coinmunicated to matters, and with the power of appointing ex- them by the member spublished 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 cir- damages against him or the pnblisher. Nobody cuit, and the court to have power to appoint supposes that the heavy dainages given in the examiners for counties or districts for special case of Stockdule v. Hansurd were grounded purposes, what is your opinion of this plan, and on any other reason than the plea of privilege ; of the relative merits of the two; and state that plea inade it of importance that the point further, what part, if any, of the business under of law arising thereon should be brought to is. a fiat in bankruptcy you think, from your ex- sue in a decisive manner, for the sake of future perience, could be conveniently and eiticiently plaintiffs, against whom groundless charges dispatched on circuit ?
inight be made by a petitioner or a witness *63. If you do not approve of either of the before a parliamentary coinmittee, and displans above suggested, have you any, and what seminated throughout the kingdoin in the other course to suggest for the better adminis- imposing form of a Parliamentary paper. tration of the law relating to bankrupts and “The exercise of very ordinary discretion insolvent debtors throughout England and by a standing committee of the House, to Wales?"
whom, in doubtful cases, it might be referred,
The Privilege Question. 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 “Such a vote would of course be unpopular, insignifieant.
and that unpopularity would produce greater “Again, it may be questioned, whether a caution in the committee entrusted with the member is, in strictness, morally justified in supervision of the printed papers. It is apdisseminating what is clearly a libel, for the prehended that, under such a system, the public sake of shewing the grounds on which he would obtain all the information requisite for acted.
every practical and constitutional purpose. “But, however convenient it may be to mem. “It would, however, be desirable to enact a bers that there should be no restriction to law securing members from Jialıility to an actheir power of laying before their constituents tion, in cases where parliamentary papers, not all the materials on which their votes are intended for the use of any persons but mein. grounded; that cannot, surely, be absolutely bers, accidentally passes into other handş. It necessary, unless the character of a member be should be incumbent upon the prosecutor to that of a delegate or procurator, bound to show, in such cases, an intention on the part account with those whose mouth-piece he is, of the member to injure him. The prosecutor for all his acts done as such. Convenience is should also be required to deny distinctly, by not sufficient to establish a privilege; necessity affidavit, every material fact in the supposed must be shown. It would be very convenient libel. that the Commons should have a power of ex- “ These provisions wonld enable the mem. amining witnesses on oath, but they have it bers to make a sufficiently free use of parlianot. But a stronger argument might be mentary papers for all practical purposes, urged, that the House of Coinmons—the grand without depriving the subject of that security inquest of the nation, who may impeach the against defamation of the most formidable greatest persons in the realm for the highest kind, to which the laws and ordinary justice crimes known to the law-should have a power alike entitle him. of examining on oath, which is exercised by "Įt would also deserve grave consideration every petty Court in the kingilom, than any whether the same privilege, which belongs to that can be brought forward in support of the published reports of proceedings in Courts of privilege of investing a printer with an iminu. Laiv, ought not to be extended by the legis. nity froin all law in the publication of parlia- lature to parliamentary papers, containing the mentary papers. It might, indeed, be argued evidence on which bills of pains and penalties, with some force, that the power to examine on and addresses of both Houses for the removal oath is a necessary consequence of the privilege of pnblic officers, are founded ; and also wheof publishing the result of the examinations, in ther in the last-mentioned species of case, the the manner, and with the immunities con- Commons ought not to be invested with a tended for.
power of examining on oath. “It is argued, that unless the privilege “ Those proceedings being the judicial claimed in Stockdale v. Hansard is established, remedy provided by the constitution in certain it will not be expedient to print any parlia- extraordinary cases, ought, it would seem, to mentary papers, except for the use of mem- be clothed with the privileges belonging to bers.. But it is evident that there are a multi- other proceedings of like nature. The same tude of documents relating to law, finance, principle seems applicable to investigations statistics, and public works, printed by order before election committees. of Parliament, which contain nothing that the “ Reasons which are obvious render it greatest ingenuity could torture into a libel. doubtful whether any facilities should be given Probably this is the most useful information of to proceedings by bill of pains and penalties, the kind that can be published to the commu. but there is not perhaps any sufficienily strong nity at large. People are sharp-sighted enough ground to question the expediency of inresting to find out grievances against public servants the House of Commons with power to examine and others, without parliamentary papers. But on oath, in the case of an address to the crown, there must be very few, if indeed there are any for the removal of a Judge, or other public cases, in which it would be even desirable that officer. those parts of a document which contain cri. It is submitted to the reader, whether upon minatory matter, should be coinmunicated to close examination, it does not appear that the public in that shape ; or, that they should though the privilege contended for of pubbe brought before any persons but those who fishing parliamentary papers to the whole nahave to decide on the matters therein con- tion, of, in fact, carrying on a trade in tained. Those parts might, in many cases, parliamentary papers under cover of a total be left out, after the requisite number of copies immunity from the laws, inay be convenient in have been struck off for members, and the re-certain respects, yet it is unnecessary. But mainder printed for the public. In some nothing short of absolule necessity could cases, however, it would be necessary to con- justify the existence of a power in any person fine the whole document to the use of members. or body of men, however august, to set them. With these precautions, it is apprehended, selves above the laws whereby the rights of the that a verdict would hardly ever be given subject are protected froın injuries, which it is against the publishers of the House for libel. the chief olject of all civil society to prevent. But if such a case should occur, it would be “If,' says Mr. Pemberton, in his most adThe Privilege Question.-- Practical Points of General Interest
mirable letter, 'the order of the House of PRACTICAL POINTS OF GENERAL Commons justifies the publication of libels,'
INTEREST. for it that term be olijected to, in circulation of false stateinents injurious to individuals), ‘it can, by parity of reasoning, justify the vi. In the case of Whitcomb v. Whiting, Dougl. olation of copyright; it may, in fact, justify 652, it was held that one of two joint maany act or wrong whatever.'
kers of a promissory note might, by ac* The authority which the House of Commons ought to have, and must have with the knowledgment or part payment, take the nation, renilers such a power in the hands of case out of the Statute of Limitations as that assemily the more dangerous.
against the other. It will be seen from the “It is frequently extreinely difficult for a following case that Whitcomb v. Whiting is man to cnpe with a private libeller. But who still the law on this point, notwithstanding is sufficiently powerful not to be almost over- some contradictory decisions. whrmed by à libel published with the sanction Purke, B.- The question in this case was, of the Honse of Commons? What then would whether payment of interest by one of two be the coudition of a man so placed, if he is to be precluded from even going into a court
makers of a promissory note, made after the of justice for redress?
lapse of six years from the time when the alle inust not conceal from ourselves, that note became due, took the case out of the in the course of possible, though at present Statute of Limitations, with regard to the not probable events, a time may coine when a other co-maker. Mr. Platt relied upon the majority of the House of Commons may be cases of Atkins v. Tredgold, 2 B. & C. 23; disposed to use the privilege of publishing 3 D. & R. 200; and Slater v. Lawson, 1 B. parliamentary papers for factious or malignant & Adul. 396, as making a distinction, and purposes. We must not allow our respect for that great assembly to render us forgetful of throwing à doubt upon the old case of the danger attending all uncontrollable irres- Whitcomb v. Whiting, Dougl. 652, which ponsible power, aud the evil of leaving any decided that one of two joint makers of a wrong without a legal remedy.
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 and dispersing libels was invented by the lead two cases, undoubtedly, some degree of ers of popular discontent; petitions to parlia- doubt might fairly èxist 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. Whiling ; and it does seem a strange poinber of siguatures were procured, the thing to say, that where a person has en. petitions were presented to the Cominons 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 that other his agent, with authority, by acsubscribers, and seemed to give undoubted sanctioned authority to the complaint which knowledgment or payment of interest, to they contained.'
enter into a new contract for him. But -- This remarkable passage (borrowed from since the decisions in Atkins v. Tredgold, the great advocate referred to above) is suffi- and Slater v. Luwson, the Court of King's cient to show that the danger apprehended Bench have twice decided that payments by from this species of privilege cannot be con- one of two joint makers of a promissory sidered entirely visionary. “ Dangerfield's case is an instance of a still note is sufficient to take the case out of the
The first of more formidable abuse. There, a inajority of statute as against the other. the House published a calumnious statement, these cases was that of Burleigh v. Stott, for the purpose of what, in modern timnes, 8 B. & C. 36, 2 Man. & R. 93, where the would be called agitation.
defendant was sued as the joint and several “ Is the recurrence of such proceedings im- maker of a promissory note; and there the possible? "The question is of so much consequence, other joint maker was enough to take the
Court held, that payment of interest by the that it should not be answered with reference to the present only; but after prudent consi- case out of the statute as against the dedcration of what may take place under a
fendant; and that it was to be considered different aspect of political affairs.
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 ile the same conclusion in the case of Manderprincples of which justice is usually admi- ston v. Robertsok, 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 ibere is a wrong.”.
Platt himself; and the Court decided there