18 Decisions on the Interpleader Act.-Review: Quin on the Banking Trade. pay the costs of all the parties whom he had brought before the Court on his rule. Where the only question is as to the priority of execution, the Court will not relieve the Sheriff. See Salmon v. James, 1 Dowl. Prac. Rep. 369. less satisfied with them than at present. His last publication before the present work, with which we are acquainted, was a pamphlet in favour of the Lord Chancellor's scheme of Local Courts, which possessed little merit: the work now before us seems Although the Sheriff will be relieved un- to us to be creditable to its author. It is der the authority of this Act, yet as a ge- well timed, and carefully executed. It is neral rule, he will not be entitled to his written with the object of simplifying a costs of appearing before the Court, even topic which theorists had previously made where conflicting claimants may not appear almost unintelligible; and we think it may before the Court. The statute, it is said, be consulted with safety and advantage. was passed in ease of the Sheriff, and there- The first four chapters are devoted to a fore he is sufficiently relieved, without re-statement of the origin, duties, and funcceiving his costs. The observations of Mr. tions of the Bank of England. In chapters Justice Patteson.fin Bryant v.'Ikey (Ib. 430,) 6 to 10, the more familiar principles and on the subject, are important, as showing facts respecting the currency are stated. the difficulty which would arise if costs were Country bankers, and their various modes granted to the Sheriff in those cases where of transacting business, are described in either the claimant or the judgment credi- chapters 11 to 17; and in the remaining tor did not appear on the Sheriff's rule. chapters are to be found the improvements "If we say that we shall allow the Sheriff suggested in the banking system, and the his costs, where the execution creditor or opinions contained in the evidence before the claimant does not appear, to be paid either by the claimant or the execution creditor, then they will both appear, in order to save the expense of those costs; in which case we must go a step further, if we wish to decide adequately between the parties, and examine and determine whether the execution or the claim was frivolous. The Judges have therefore thought it better to draw one strict line, and in no case to allow costs to the Sheriff." The only exception made to this course was in the above case, the late Committee of the House of Commons. In chapter 5, is shortly and clearly stated the principal rules respecting what are called "The Exchanges;" and it is from this chapter that we shall enable the reader to judge of the merits of the work. "When a bill of exchange for 1007. will purchase, both in England and France, the same quantity of gold of a certain weight and fineness, then a par, or perfect evenness of exchange, may be said to exist between those purchase that quantity of gold in Paris, to add two countries. If it be necessary, in order to any given sum, 57. or 10l. to the English bill for 100/., then the exchanges between the two countries are said to be no longer at par; the scale is inclined to the disadvantage of England, and the measure of that disadvantage is the sum added to the bill. On the other hand, take place to the disadvantage of France, if a similar depression of the balance is said to the operation be in the reverse-that is, if instead of any addition being made to the On the third branch of the statute, nam- English bill, an addition be made to the quan, ly, as to proceeding by mandamus, no de-tity of gold, in order to purchase that bill in cisions have as yet been pronounced by the where the Sheriff's rule was afterwards opened at the instance of the execution creditor, notice of such an application having been previously given to the Sheriff and the adverse claimant. Although a satisfactory reason for the delay by the execution creditor in appearing, the Court compelled him to pay the Sheriffs' costs on the second ap pearance. Courts. REVIEW. The Trade of Banking in England: embracing the Substance of the Evidence taken before the Select Committee of the House of Commons; together with a Summary of the Law applicable to the Bank of England, &c. By Michael J. Quin, Esq., of Lincoln's Inn, Barrister at Law. But is supposed to be pro tanto in favour of Engthe Paris market; then the turn of the scale land. This explanation of the exchange must be taken, however, in connexion with certain other circumstances. It should always be recollected that the standard coinage of France, and indeed of the whole continent, is silver, whereas that of England is gold. It is neces sary for the bank to retain in its coffers a cer tain proportion of gold bullion: and for that purpose a supply of the metal may be required in England when it is not wanted in France. The premium on gold may chance to be low in Paris; that is to say, low in the estimation of a French banker, who would gladly exchange WHEN we last had an opportunity of re-it for silver in order to meet the demand of viewing Mr. Quin's labours, we were much his customers. It might so happen, that the terworth. 1833. Review: Quin on the Banking Trade-New Bills in Parliament. exchanges would be favorable to England at a period when they would not in reality be unfavorable to France. No perfect par of exchange, therefore, can possibly exist as between two countries which have not the same standard metal for their respective curiencies. "Par between England and France When we say that a par of exchange exists between this country and France, we mean that we can then obtain 25 francs and 20 centimes in Paris for a sovereign. When for the sovereign we can get only 25 francs and 15 or 10 centimes, we then consider the exchange as so much below par. The sterling value of the sovereign is thus so far reduced; and it is evidence of the fact, that we are sending gold abroad upon which we receive no premium. In this state of things the exchanges are unfavorable to us. If we calculate the value of the currency here against that of the currency of France, we may at any period ascertain the par pretty correctly, by adding to that value the premium then payable for gold. The exchanges are against the country which pays the higher premium, and the amount of the excess is the measure of its loss. 19 are soon rectified by the profitable returns which ensue. When, however, we happen to have a bad harvest, and a great quantity of corn is necessarily imported from the continent, it must be paid for chiefly in gold, according to Mr. Rothschild, whose doctrine, as I am informed, is not correct in practice. Most persons who deal in corn have but limited credit; the foreign agent draws his bills immediately, and sells them without reference to the exchanges, and that perhaps produces an effect to a certain extent. But, on the other hand, there are a great many merchants from the West Indies, who have bills running upon them here for coffee and different kinds of produce, which they cannot sell in England; they therefore send it to the continent and draw bills for it. Against those bills some remittances must come back; and as people of property here will not involve themselves in foreign acceptances, those remittances must be in gold. When that happens, the exchanges take a turn in our favour." NEW BILLS IN PARLIAMENT. THE PAYMENT OF THE DEBTS OF ALL PER- "Signs of unfavorable and favorable exchanges. Practically speaking, the exchanges may be said to be unfavorable to this country, A BILL FOR MORE EFFECTUALLY SECURING when there is a more than ordinary continued demand upon our currency for gold; and unless that demand arise from political dis- WHEREAS it is expedient that the payment of credit at home, we may infer that the gold is the debts of all persons should be secured going abroad in large quantities. A tempo- more effectually than is done by the laws now rary demand of that kind may exist at a high in force; be it therefore enacted, that from as well as at a low rate of exchange; as for and after the passing of this act, when any perinstance, when a supply of that metal to the son shall die seised of or entitled to any estate amount of a million was sent out not. long or interest in lands, tenements or hereditasince for the supply of the Russian army. To ments, corporeal or incorporeal, or other real a certain extent that demand was injurious; estate, whether freehold, customaryhold, or but its action, being limited in point of time, copyhold, which he shall not by his last will was soon rectified. Since the repeal of the have charged with or devised, subject to the laws prohibiting the exportation of coin, and payment of his debts, the same shall be assets in consequence of the increased facilities and to be administered in Courts of Equity for the the cheapness of transit between England and payment of the just debts of such persons, as the continent, merchants who have large re- well debts due on simple contract as on spemittances to make abroad, frequently make cialty; and that the heir or heirs at law, custhem in sovereigns. They do so, because they tomary heir or heirs, devisee or devisees of may not have time to purchase bills, and it such debtor, shall be liable to all the same suits may be of importance to them to forward the in equity at the suit of any of the creditors of remittances without delay. They moreover such debtor, whether creditors by simple conthus avoid the risk of buying bad bills; and it tract or by specialty, as the heir or heirs at may be conducive to their advantage, to conceal law, devisee or devisees of any person or perthe nature of their business from rival specu-sons who died seised of freehold estates, was lators. The exchanges may happen at the or were before the passing of this act liable to time to be unfavorable to this mode of pay-in respect of such freehold estates at the suit ment, and yet it may, upon the whole trans- of creditors by specialty in which the heirs action, be beneficial to the merchant. Mr. Rothschild, for example, might embark in a financial operation at Paris or Berlin, the profit of which he calculates at 3 per cent. It becomes reduced to 24, perhaps, by reason of that mode of remittance during an unfavorable state of exchange. Nevertheless he has his 24 per cent. profit, and thus the balance is materially in his favor. But these, again, are exportations of gold that only create a temporary demand upon our currency, and they were bound: Provided always, that in the administration of assets by Courts of Equity under and by virtue of this Act, all creditors by specialty in which the heirs are bound, shall be paid the full amount of the debts due to them, before any of the creditors by simple contract or by specialty, in which the heirs are not bound, shall be paid any part of their demand. C 2 20 The Property Lawyer, No. XVI.-Observations on the Local Courts Bill. THE PROPERTY LAWYER. No. XVI. JUDGMENTS. leases to the purchaser, there could be no execution of the trusts without allowing the trustees to receive the money and give their receipts, which were to discharge the purchasers. This case bears no resemblance to three cases mentioned. The case that it most resembles is that which was submitted for Mr. Serjeant Hill's opinion (given 4 Mad. 506. n.); but, even in that case, I confess that I should not have given the opinion which the learned Serjeant did, because it appears to me that from the time H. A. S. entered into binding contracts to sell his estates to purchasers, he not having judgments against him at that time, the purchasers had a right to file a bill against him, and have the legal estate conveyed; and if he had subsequently confessed a judgment, that judgment never could have impeded the progress of the legal estate to them. The case of Lord Dillon v. Plaskett, 2 Bli. 239, has no resemblance to the present. As to the case of Forth v. The Duke of Norfolk, 4 Mad. 506; Sug. Vend. 476. 8th ed., no decision was It has been decided, that if there be articles of agreement entered into for a valuable consideration, they will protect a purchaser in equity from judgments given between the execution of the articles and the conveyance, if the purchaser had no notice of them; for the right of the purchaser will be preferred to that of any subsequent judgment creditor. Finch v. Earl of Winchelsea, 1 P. Wms. 278; 10 Mod. 468. Prior v. Penpraze, 4 Pri. 99. Forth v. Duke of Norfolk, 4 Mad. 503; and Sug. V. & P. 476. Kennedy v. Daly, 1 S. & L. 373. In the following case the circum-given there on the point which might have stances were these: In February, 1827, Geo. C. Montagu, Esq. being tenant for life of certain real estates, with remainder to his son, F. C. Montagu in tail, joined with his son in suffering a recovery of, and conveying the estates, to the use of the plaintiffs, in trust to sell. By deed of even date, after making provision for redeeming certain annuities and mortgages created by G. C. Montagu, it was declared that the trustees should stand possessed of 30,000l., part of the monies to arise from the sale, in trust for G. C. Montagu, his executors, &c, and of the remainder in trust for F. C. Montagu absolutely. The plaintiffs agreed to sell the estates to the defendant, and afterwards judgments were entered up against Mr. Montagu the elder, for debts, some of which were contracted before, and others after, the conveyance to the plaintiffs. The purchaser objected to the title, on the ground that the judgments formed a lien on the estate; and this suit was instituted to enforce the completion of the contract. The Vice Chancellor said that he had no doubt on the case. By the conveyance to which the father and son were parties, the son acquired a clear right in equity to have the trusts expressed in the conveyance performed, because he amalgamated his remainder in tail (which was converted into a fee by the recovery) with the father's life estate; and it was agreed between them that there should be an immediate sale of the whole, and a division made of the purchase money. Part was to be applied in payment of the father's debts; 30,000l. was then to be paid to the father; and the clear residue was to be paid to the son: therefore, as soon as the conveyance was executed, the son had a clear right to file a bill against the father and the trustees, for a sale according to the trusts expressed and inasmuch as part of the trust is, that the trustees should sell and give re arisen, because the chattel interest had ceased to have existence. My notion is, that it is of the essence of the trusts which the son, as the purchaser, has a right to have performed, that the trustees should convey the legal estate and give receipts for the purchase money. My opinion is so clear, that I do not think that I ought to allow the purchaser to say that there is a doubt on the point; and if this were a hostile case, I should have given costs. Lodge v. Lyseley, 4 Sim. 70. This Court, Sir, appears to me so complete an absurdity, that I am surprised any person pretending to the character of a Judge, should embody such a proposition in an act of parliament. It is, in fact, quite a non-entity. What ? powers are its To summon a party before the Judge, to shew cause why he should not pay a debt, or perform some act which the plaintiff claims he ought to do; and then, if the party cited gives notice that he will not attend, the other party has power to prove service of the citation in any Court of Law or Equity, for the purpose of proving that the party cited refused to appear; but to what end I think it would puzzle the framer to deter a Vol. v, p. 493. On the Local Courts Bill.-Selections from Correspondence, No. XXVI. mine, as there is no provision that the party refusing to appear shall be liable to the costs of any subsequent action or suit: and should the parties both appear before the Court and argue their respective cases, and the Judge recommend an arrangement, the parties have power to abide by it or not. Are, therefore, the powers given by the Bill more extended than parties now have, except in cases where they mutually agree to abide by the decision of the Judge, when they know what such decision is? Has not the plaintiff now the power of citing the defendant to appear before some friend of his own? and if the defendant thinks fit to attend, and they respectively state their cases, have they not the power of abiding by his decision, after they have heard it, if they see fit? It may be, that in one case in ten thousand, the parties would agree to abide by the decision of the Judge; but it is well known that the statement of the parties interested, as to the facts, are so widely different in the majority of cases, that it is quite impossible to arrive at the truth without the examination of witnesses, which is not provided for by this portion of the Bill; and therefore, the foundation upon which the Judge will have to decide being bad, is it likely that the parties will abide by a decision so given? at times, that the forty-second day will fall on the same day the Judge may have appointed for trying causes, which may take up the whole day. In such case, which will be preferred, the causes or the bankruptcy? One or the other must be postponed; if the latter, see the loss of time, inconvenience, and expense, the creditors of a bankrupt would be put to in having it adjourned, besides the expenses of the solicitor attending the meetings. I should be glad to hear what would be the charges allowed him for such attendances. Suppose the distance thirty miles, and cross roads. It will take him three days: one to go, one there, and one to return;-besides his travelling expenses, which would, perhaps, be by post horses. Then he must take his clerk with him, to assist in preparing the proofs, &c. if there are many debts. Less than 10. for each meeting would not pay him for his loss of time and expenses, and very few would like to attend for that sum. Will the advantages of the new system compensate the creditors for the additional expenses they would be put to? I should submit that it would not. At present the meetings are usually held in the town or neighbourhood where the bankrupt resides, and where the majority of the creditors reside. This communication being already longer than I intended, I must defer my observations upon the appointment of Official Ássignees, and the other parts of the Bill, until another oppor Then comes the provision as to Bankruptcy Business, which appears to have been as lightly considered as the other branches of this import-tunity. ant Bill. There is one objection which, I think, as the law relating to Bankruptcy now stands, is fatal to this portion of the Bill, as far as relates to the jurisdiction of the Judges of the proposed new Courts. If I rightly understand the present measure, it is intended that the Courts should be ambulatory, or held in different towns within the jurisdiction of the Judge, on days to be advertised; and by the bankrupt law, as it now stands, it is provided that the last meeting under a fiat shall be held on the forty-second day after the bankruptcy shall be advertised in the Gazette; and suppose, therefore, there should be a Judge appointed for the West Riding of Yorkshire, and a fiat should be issued against a bankrupt residing at Huddersfield, perhaps when the fiat got down the Judge would be at Sheffield on his circuit; the attorney and witnesses would therefore have to attend him there to prove the act of bankruptcy, &c.-a distance of about thirty miles,-and then the Judge would appoint two meetings, to be held at such places where he may happen to be on the days named, and perhaps at different parts of his jurisdiction, and on each occasion twenty miles distant from the place of residence of the bankrupt and his creditors. SELECTIONS FROM CORRESPONDENCE. COUNTRY FIATS IN BANKRUPTCY. P. THE Lord Chancellor has been pleased to appoint two Quorum Commissioners and three Attorneys, the former residing within a few miles of Hull, and the latter in Hull, to act as Commissioners of Bankrupts in all fiats issued in Yorkshire, within a circuit of about twentyfive miles. Thus, a bankruptcy at Beverley, a place containing near 9000 inhabitants, the metropolis of the East Riding, must be worked at Hull, nine miles off. Duffield also, a considerable market town, twenty-two miles from Hull, will be in the same situation. The solicitor under the fiat has 20s. allowed him for attending each meeting, but nothing for travelling expenses. The assignees, the bankrupt, and in large concerns, many of the creditors and their solicitors, will thus be put to the serious expense of attending at Hull, ten I should be glad to know whether the framer or, it may be, twenty miles from their residence, of the Bill thinks this arrangement would be to transact that business which, I will venture more beneficial to creditors than the present. to say, has hitherto been done quite as satisI should humbly submit that it will lead to factorily to them at home. Surely these exendless confusion and inconvenience to credi- clusive appointments are only intended to be tors, who will be obliged to travel such a dis- temporary, or my Lord Brougham cannot be tance, perhaps by cross roads, at a great ex-aware of the inconvenience and expense he is pense, to prove their debts. Then it will occur putting creditors to,-all suffering sufficiently 22 Selections from Correspondence, No. XXVI. from their losses under the bankruptcy. With- [ submit to the consideration of your readers, in the last year in Beverley, four bankruptcies inasmuch as the question, if decided in the have been worked, one of them where the affirmative, would have the effect of defeating debts are upwards of 125,000l.; and a matter the provisions of at least one half the leases of great consolation it is to several hundred in the kingdom. creditors, to think that the bankruptcy occurred before the new regulations took effect. The solicitors here feel great reluctance to make any complaints, as they would be charged with having interested motives; but it behoves the public to bestir themselves; and I have no doubt that the Chancellor would at all events direct enquiry to be made. Beverley, April 27, 1833. S. ATTORNEYS' CERTIFICATE DUTY.-TAXA- To the Editor of the Legal Observer. Is it not monstrous that, when the profits of An action is brought by a landlord against his tenant for a breach of covenant, to recover certain penalties stipulated for in his lease, for having converted a portion of the pasture into arable land, contrary to the spirit of an express covenant contained in his lease. The tenant, in extenuation, produces his lease, and contends that the Stamp Duty not having been regulated by the penalty provided for, in conjunction with the rent reserved, that the covenant in such lease is void, and that consequently the action ceases. The question at issue, therefore, is,-Ought the ad valorem duty to depend on the penalty prescribed, whatever it may be, in connection with the rent actually reserved, or ought it to be regu ASPIRO. lated by the yearly rent alone? RECONCILEMENT COUrts. To the Editor of the Legal Observer. "Sont dispensées du Préliminaire de la Conciliation. "10 Les demandes qui intéressent l'Etat et le domaine, les communes, les établissemens publics, les mineurs, les interdits, les curateurs aux successions vacantes. I forward you a list of the various matters and causes exempted from "Conciliation" by the French, taken from the "Code de ProAnother most invidious and ruinous distinc-cédure Civile, Livre 2. Titre premier." tion is made between us and every other class, whether merchants, traders, or men in any other profession; namely, the necessity of delivering a bill signed, a month prior to being able to proceed for its recovery. To deliver a bill signed is, by most clients, considered an insult, and as bearing upon it the mark of distrust in his honor or ability to discharge it; and with others, it is a hint they do not fail to avail themselves of, to avoid the payment by getting out of the way. You alone appear to me to have made a stand for us; and by nam-justice! ing the foregoing acts of injustice, in any way that you think best, the former, if not altogether removed, may be modified,-say reduced one-half,-and the latter altogether done away with. "20 Les demandes qui requièrent célérité!!!!" Consider that, ye advocates of "speedy" "30 Les demandes en intervention ou en garantie. 40 Les demandes en matière de com merce!" A pretty wide exemption! 66 50 Les demandes de mise en liberté; celles en main levée de saisie ou opposition; en paiement de loyers, fermages ou arrérages de rentes ou pensions; celles des avoués en paiement de frais!" Cunning fellows, those avowed agents, proctors, or attorneys of the parties, to get their bills of costs withdrawn from under the pruning knife of the Conciliator! 60 Les demandes formées contre plus de deux parties, encore qu'elles aient le même intérêt. "70 Les demandes en vérification d'ecritures, en désaveu, en réglement de Juges, en renvoi, en prise à partie; les demands contre un tiers-saisi, et en général sur les saisies, sur les offres réelles, sur la remise des titres, sur leur communication, sur les séparations de |