« ZurückWeiter »
Decisions on the Interpleader Act.-Review : Quin on the Banking Trade.
pay the costs of all the parties'whom he had less satisfied with them than at present. brought before the Court on his rule. His last publication before the present work,
Where the only question is as to the pri- with which we are acquainted, was a pamority of execution, the Court will not relieve phlet in favour of the Lord Chancellor's the Sheriff. See Salmon v. James, 1 Dowl. scheme of Local Courts, which possessed Prac. Rep. 369.
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, withoutfre- statement of the origin, duties, and funcceiving his costs. The observations of Mr. tions of the Bank of England. In chapters Justice Patteson.in Bryant v.'Ikey (16.430,) 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 the late Committee of the House of Comeither by the claimant or the execution cre- mons. In chapter 3, is shortly and clearly ditor, then they will both appear, in order stated the principal rules respecting what to save the expense of those costs; in which are called “The Exchanges;" and it is from case we must go a step further, if we wish this chapter that we shall enable the reader to decide adequately between the parties, to judge of the merits of the work. and examine and determine whether the ex- “When a bill of exchange for 1001. will ecution or the claim was frivolous. The purchase, both in England and France, the Judges have therefore thought it better to same quantity of gold of a certain weight and draw one strict line, and in no case to allow fineness, then a par, or perfect evenness of costs to the Sheriff.” The only exception exchange, may be said to exist between those made to this course was in the above case,
two countries. If it be necessary, in order to where the Sheriff's rule was afterwards
purchase that quantity of gold in Paris, to add
any given sum, 51. or 104. to the English bill opened at the instance of the execution cre
for 1001., then the exchanges between the two ditor, notice of such an application having countries are said to be no longer at par; the been previously given to the Sheriff and the scale is inclined to the disadvantage of Engadverse claimant. Although' a satisfactory land, and the measure of that disadvantage is reason for the delay by the execution credi. the sum added to the bill. On the other hand, tor in appearing, the Court compelled him to
a similar depression of the balance is said to pay the Sheriffs' costs on the second ap
take place to the disadvantage of France, if
the operation be in the reverse—that is, if pearance.
instead of any addition being made to the On the third branch of the statute, nam
English bill, an addition be inade 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
the Paris market; then the turn of the scale
is supposed to be pro tanto in favour of EngCourts.
| land. This explanation of the exchange must
be taken, however, in connexion with certain REVIEW.
other circumstances. It should always be re. The Trade of Banking in England: embrac-collected that the standard coinage of France,
ing the Substance of the Evidence taken and indeed of the whole continent, is silver, before the Select Committee of the House
whereas that of England is gold. It is neces
use | sary for the bank to retain in its coffers a cerof Commons ; together with a Summary I ta
tain proportion of gold bullion : and for that of the Law applicable to the Bank of I purpose a supply of the metal may be required England, &c. By Michael J. Quin, Esq., in England when it is not wanted in France. of Lincoln's Inn, Barrister at Law. But- The premium on gold may chance to be low in terworth. 1833.
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 this customers. It might so happen, that the
Review : Quin on the Banking Frade.--New Bills in Parliament.
exchanges would be favorable to England at are soon rectified by the profitable returns a period when they would not in reality be which ensue. When, however, we happen to unfavorable to France. No perfect par of have a bad harvest, and a great quantity of exchange, therefore, can possibly exist as corn is necessarily imported from the contibetween two countries which have not the nent, it must be paid for chiefly in gold, same standard metal for their respective cur according to Mr. Rothschild, whose doctrine, iencies.
as I am informed, is not correct in practice, « Par between England and France -When Most persons who deal in corn have but limited we say that a par of exchange exists between credit; the foreign agent draws his bills imthis country and France, we mean that we mediately, and sells them without reference to can then obtain 25 francs and 20 centimes in the exchanges, and that perhaps produces an Paris for a sovereign. When for the sovereign effect to a certain extent. But, on the other we can get only 25 francs and 15 or 10 centimes, hand, there are a great many merchants from we then consider the exchange as so much the West Indies, who have bills running upon below par. The sterling value of the sovereign them here for coffee and different kinds of is thus so far reduced; and it is evidence of produce, which they cannot sell in England; the fact, that we are sending gold abroad upon they therefore send it to the continent and which we receive no premium. In this state draw bills for it. Against those bills some of things the exchanges are unfavorable to us. remittances must come back; and as people of If we calculate the value of the currency here property here will not involve themselves in against that of the currency of France, we may foreign acceptances, those remittances must be at any period ascertain the par pretty correctly, in gold. When that happens, the exchanges by adding to that value the premium then take a turn in our favour.” 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.
NEW BILLS IN PARLIAMENT. “ Signs of unfavorable and favorable exchanges. Practically speaking, the exchanges
A BILL FOR MORE EFFECTUALLY SECURING may be said to be unfavorable to this country,
THE PAYMENT OF THE DEBTS OF ALL PERwhen there is a more than ordinary continued demand upon our currency for gold; andl sons. 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 Jaws 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, cus. them 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 cquity 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. were bound : Provided always, that in the adRothschild, for example, might embark in a ministration of assets by Courts of Equity unfinancial operation at Paris or Berlin, the profit der and by virtue of this Act, all creditors by of which he calculates at 3 per cent. It be- specialty in which the heirs are bound, shall be comes reduced to 21, perhaps, by reason of paid the full amount of the debts due to them, that mode of remittance during an unfavo- | before any of the creditors by simple contract rable state of exchange. Nevertheless he has or by specialty, in which the heirs are not his 24 per cent. profit, and thus the balance is bound, shall be paid any part of their dez materially in his favor. But these, again, are mand. exportations of gold that only create a temporary demand upon our currency, and they
The Property Lawyer, No. XVI.-Observations on the Local Courts Bill.
execution of the trusts without allowing the
chasers. This case bears no resemblance to JUDGMENTS.
three cases mentioned. The case that it most
resembles is that which was submitted for Mr. It has been decided, that if there be articles
Serjeant Hill's opinion (given 4 Mad. 506. n.); of agreement entered into for a valuable con- but, even in that case, I confess that I should sideration, they will protect a purchaser in
not have given the opinion which the learned
Serjeant did, because it appears to me that equity from judgments given between the ex
from the time H. A. S. entered into binding ecution of the articles and the conveyance, if contracts to sell his estates to purchasers, he the purchaser had no notice of them; for the not having judgments against him at that time,
the purchasers had a right to file a bill against right of the purchaser will be preferred to that him, and have the legal estate conveyed; and of any subsequent judgment creditor. Finch | if he had subsequently confessed a judgment, y. Earl of Winchelsea. I P. Wms. 278 : 10 that judgment never could have impeded the
progress of the legal estate to them. The Mod. 468. Prior v. Penpraze, 4 Pri. 99. case of Lord Dillon v. Plaskett, 2 Bli. 239, has Forth v. Duke of Norfolk, 4 Mad. 503; and no resemblance to the present. As to the
case of Forth v. The Duke of Norfolk, 4 Mad. Sug. V. & P. 476. Kennedy v. Daly, 1 S. &
506; Sug. Vend. 476. 8th ed., no decision was L. 373. In the following case the circum given there on the point which might have stances were these:
arisen, because the chattel interest had ceased
to have existence. My notion is, that it is of In February, 1827, Geo. C. Montagii, Esq. the essence of the trusts which the son, as the being tenant for life of certain real estates, purchaser, has a right to have performed, with remainder to his son, F. C. Montagu in that the trustees should convey the legal estate tail, joined with his son in suffering a recovery and give receipts for the purchase money. of, and conveying the estates, to the use of the | My opinion is so clear, that I do not think plaintiffs, in trust to sell. By deed of even that I ought to allow the purchaser to say that date, after making provision for redeeming there is a doubt on the point; and if this were certain annuities and mortgages created by a hostile case, I should have given costs. G. C. Montagu, it was declared that the trus- | Lodge v. Lyseley, 4 Sim. 70. tees should stand possessed of 30,0001., 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 abso OBSERVATIONS ON THE LOCAL lutely. The plaintiff's agreed to sell the es
COURTS BILL. tatcs to the defendant, and afterwards judgments were entered up against Mr. Montagu the elder, for debts, some of which were con
COURT OF RECONCILEMENT.-BANKRUPTCY tracted before, and others after, the convey
BUSINESS. ance to the plaintiffs. The purchaser objected to the title, on the ground that the judgments
Having in my letter, 'published in the Legal formed a lien on the estate; and this suit was
Observer of the 26th of April a, stated the efinstituted to enforce the completion of the
fect I consider the New Local Courts Bill, as
far as relates to the recovery of debts, will have contract.
The Vice Chancellor said that he had no upon trage, I now proceed to the other parts doubt on the case. By the conveyance to
of the Bill ; and first, upon the Court of Rewhich the father and son were parties, the
concilement. son acquired a clear right in equity to have..
| This Court, Sir, appears to me so complete the trusts expressed in the conveyance per- an
an absurdity, that I am surprised any person formed, because he amalgamated his “re- pretending to the character of a Judge, should mainder in tail (which was converted into a embody such a proposition in an act of parliafee by the recovery) with the father's life es- ment. It is, in fact, quite a non-entity. What tate, and it was agreed between them that are its powers ? To summon a party before there should be an immediate sale of the
the Judge, to shew cause why he should not whole, and a division made of the purchase pay a debt, or perform some act which the money. Part was to be applied in payment plaint
plaintiff claims he ought to do; and then, if of the father's debts: 30,0001. was then to be the party cited gives notice that he will not atpaid to the father; and the clear residue was
| tend, the other party has power to prove serto be paid to the son : therefore, as soon as
vice of the citation in any Court of Law or the conveyance was executed, the son had a Equity, for the purpose of proving that the clear right to file a bill against the father and party citea refused to appear ; but to what end the trustees, for a sale according to the trusts
I think it would puzzle the framer to deter. expressed : and inasmuch as part of the trust is, that the trustees should sell and give re
a Vol. v, p. 493.
On the Local Courts Bill.--Selections from Correspondence, No. XXVI.
mine, as there is no provision that the party at times, that the forty-second day will fall on refusing to appear shall be liable to the costs the same day the Judge may have appointed of any subsequent action or suit: and should for trying causes, which may take up the whole the parties both appear before the Court and day. 'In such case, which will be preferred, argue their respective cases, and the Judge re- the causes or the bankruptcy? One or the commend an arrangement, the parties have other must be postponed ; if the latter, see the power to abide by it or not. Are, therefore, loss of time, inconvenience, and expense, the the powers given by the Bill more extended creditors of a bankrupt would be put to in than parties now have, except in cases where having it adjourned, besides the expenses of they mutually agree to abide by the decision of the solicitor attending the meetings. I should the Judge, when they know what such decision be glad to hear what would be the charges is? Has not the plaintiff now the power of allowed him for such attendances. Suppose citing the defendant to appear before some the distance thirty miles, and cross roads. It friend of his own? and if the defendant thinks will take him three days: one to go, one there, fit to attend, and they respectively state their and one to return ;-besides his travelling excases, have they not the power of abiding by penses, which would, perhaps, be by post horses. his decision, after they have heard it, if they Then he must take his clerk with him, to assist in see fit?
preparing the proofs, &c. if there are many It may be, that in one case in ten thousand, debts. Less than 101. for each meeting would the parties would agree to abide by the deci- not pay him for his loss of time and expenses, sion of the Judge ; but it is well known that and very few would like to attend for that sum. the statement of the parties interested, as to Will the advantages of the new system compenthe facts, are so widely different in the major-sate the creditors for the additional expenses ity of cases, that it is quite impossible to ar- they would be put to? I should submit that rive at the truth without the examination of it would not. At present the meetings are witnesses, which is not provided for by this usually held in the town or neighbourhood portion of the Bill; and therefore, the foun- where the bankrupt resides, and where the dation upon which the Judge will have to de- majority of the creditors reside. cide being bad, is it likely that the parties will This communication being already longer abide by a decision so given?
than I intended, I must defer my observations Then comes the provision as to Bankruptcy upon the appointment of Official Assignees, and Business, which appears to have been as lightly the other parts of the Bill, until another opporconsidered 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
SELECTIONS new Courts.
FROM CORRESPONDENCE. If I rightly understand the present measure, it is intended that the Courts should be ambu
No. XXVI. latory, or held in different towns within the jurisdiction of the Judge, on days to be advertised ; and by the bankrupt law, as it now
COUNTRY FIATS IN BANKRUPTCY. stands, it is provided that the last meeting un- | The Lord Chancellor has been pleased to apder a fiat shall be held on the forty-second day point two Quorum Commissioners and three after the bankruptcy shall be advertised in the Attorneys, the former residing within a few Gazette; and suppose, therefore, there should miles of Hull, and the latter in Hull, to act as be a Judge appointed for the West Riding of Commissioners of Bankrupts in all fiats issued Yorkshire, and a fiat should be issued against in Yorkshire, within a circuit of about twentya bankrupt residing at Huddersfield, perhaps five miles. Thus, a bankruptcy at Beverley, a when the fiat got down the Judge would be at place containing near 9000 inhabitants, the Sheffield on his circuit ; the attorney and wit-metropolis of the East Riding, must be worked nesses would therefore have to attend him at Hull, nine miles off. Duffield also, a conthere to prove the act of bankruptcy, &c.-a siderable market town, twenty-two miles from distance of about thirty miles,-and then the Hull, will be in the same situation. The soJudge would appoint two meetings, to be held licitor under the fiat has 20s. allowed him for at such places where he may happen to be on attending each meeting, but nothing for trathe days named, and perhaps at different parts velling expenses. The assignees, the banke of his jurisdiction, and on each occasion twen- rupt, and in large concerns, many of the crety miles distant from the place of residence of ditors and their solicitors, will thus be put to the bankrupt and his creditors.
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 ex. endless 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
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 125,0001. ; 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 An action is brought by a landlord against before the new regulations took effect. his tenant for a breach of covenant, to recover
The solicitors here feel great reluctance to certain penalties stipulated for in his lease, for make any complaints, as they would be charged having converted a portion of the pasture into with having interested motives ; but it behoves arable land, contrary to the spirit of an express the public to bestir themselves; and I have no covenant contained in his lease. The tenant, doubt that the Chancellor would at all events in extenuation, produces his lease, and condirect enquiry to be made.
tends that the Stamp Duty not having been
S. regulated by the penalty provided for, in conBeverley, April 27, 1833.
I junction with the rent reserved, that the
covenant in such lease is void, and that con
sequently the action ceases. The question at ATTORNEYS' CERTIFICATE DUTY.-TAXA
issue, therefore, is-Ought the ad valorem
duty to depend on the penalty prescribed, TIONS, &c.
whatever it may be, in connection with the To the Editor of the Legal Observer. rent actually reserved, or ought it to be regu.
lated by the yeurly rent alone? Aspiro. Is it not monstrous that, when the profits of our branch of the profession have been reduced to less than one of the Inn porters would charge for walking the same ground that we or our
RECONCILEMENT COURTS. clerks do in the progress of an action, we are expected tamely to submit to an annual tax
To the Editor of the Legal Observer. upon each of us of 121., and, generally speaking, to the same fees as hitherto; to say no- I forward you a list of the various matters thing of rents of chambers continuing as high and causes exempted from “ Conciliation” by as formerly, as well as salaries of clerks. the French, taken from the “ Code de Pro.
Another 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 1 other profession; namely, the necessity of de
"Sono dispensées du Préliminaire de la Conlivering a bill signed, a month prior to being
ciliation. able to proceed for its recovery.“ To deliver a " lo Les demandes qui intéressent l'Etat et bill signed is, by most clients, considered an le domaine, les communes, les établissemens insult, and as bearing upon it the mark of dis- publics, les mineurs, les interdits, les curateurs trust in his honor or ability to discharge it; aux successions vacantes. and with others, it is a hint they do not fail to “20 Les demandes qui requièrent célé. avail themselves of, to avoid the payment by rité!!!!” getting out of the way. You alone appear to Consider that, ye advocates of “speedy" me to have made a stand for us, and by nam-justice! ing the foregoing acts of injustice, in any way “ 30 Les demandes en intervention ou en that you think best, the former, if not alto garantie. gether removed, may be modified,-say re- *40 Les demandes en matière de conduced one-half,--and the latter altogether merce!” done away with.
A pretty wide exemption ! The stamp upon articles of clerkship should " 5o Les demandes de mise en liberté ; also be reduced, excepting that it may have a celles en main levée de saisie ou opposition ; charitable effect, and prevent young men enter-en paiement de loyers, fermages ou arrérages ing a profession having, with those out of it, de rentes ou pensions; celles des avoués en the character of being profitable, whereas the paiement de frais !” members now find it a starving one.
Cunning fellows, those avowed agents, proc
tors, or attorneys of the parties, to get their Your obedient servant, bills of costs withdrawn from under the prunFurnival's Inn,
AN ATTORNEY. ing knife of the Conciliator! Wednesday.
* 60 Les demandes formées contre plus de deux parties, encore qu'elles aient le même
intérêt. LEASES.-STAMP DUTY.
“ 70 Les demandes en vérification d'ecri
tures, en désaveu, en réglement de Juges, en To the Editor of the Legal Observer.
renvoi, en prise à partie ; les demands contre Sir,
un tiers-saisi, et en général sur les saisies, sur A singular point has been mooted by an les offres réelles, sur la remise des titres, sur ingenious draftsman, which I am anxious to leur communication, sur les séparations de