Superior Courts: Common Pleas.-Bankruptey.

siding at the particular place. There must also be an affidavit proving the hand-writing of the major-general, and that he really held that rank.

Channell, Serjeant, moved that the acknowledgment of Mary Jane Daly, the wife of a drum-major, at present stationed at Secunderabad, in India, taken before commissioners specially appointed, together with the affidavit and certificate annexed thereto, might be received under 3 & 4 W. 4, c. 74, s. 79. The affidavit

jamin Lovell, Major-General, commanding the Hyderabad subsidiary force at Secunderabad, where there is no notary public, who certifies that the deponent, one of the special commissioners, &c., was sworn before James Robertson, one of her Majesty's justices of the peace, and that James Robertson is a justice of the peace, and authorized to administer oaths," &c. The attorney who procured the commission also made an affidavit stating that he had applied at the East India House to see if evidence could be obtained of there being no notary at Secunderabad, and that he had been informed by the head clerk there that Secunderabad was distant 200 miles from the nearest presidency, and that it was usual for major-generals to act as notaries public where none of the latter were

Court of Bankruptcy.

$103

Re Bruce and Morrison, Nov. 19, 1847. DISPUTED ADJUDICATION. PRACTICE.CONSTRUCTION OF 5 & 6 VICT. c. 122. The five days allowed in the stat. 5 & 6 Vict. c. 122, s. 23, for disputing an adjudication, are to be calculated exclusive of Sunday, even if Sunday should not be the last of such five days.

In this case Sturgeon appeared on behalf of Bruce, one of the persons against whom a fiat in bankruptcy issued, to dispute the adjudica

tion.

verifying the certificate of the acknowledgment purported to be sworn at Secunderabad, before one of her Majesty's justices of the peace and police superintendent, &c. There was then Bagley, for the petitioning creditor objected, annexed the following, instead of, as usual, a that the court had no authority to entertain the notary's certificate:-"The certificate of Benapplication, as more than five days had elapsed since the service of the notice of adjudication. A duplicate of the adjudication was served on the bankrupt Bruce, by leaving it at his dwelling-house with his wife, (after tendering the document to the bankrupt himself,) on Satur day the 13th November. The 23rd section of the stat. 5 & 6 Vict. c. 122, enacted, that a duplicate of the adjudication should be served on the person adjudged bankrupt personally, or by leaving it at his place of abode or business, and "that such person shall be allowed five days from the service of such duplicate, to show cause to the court authorized to act in the prosecution of the fiat under which such adjudication shall have been made, against the validity of such adjudication; and that if such person shall within the time hereby allowed in that behalf, show to the satisfaction of such court that the petitioning creditors' debt, trading and act of bankruptcy, upon which such adjudication shall be grounded, or that any or either of such matters are insufficient to support such adjudication," &c., then the adjudication shall be annulled. Here the bankrupt did not come within the time allowed by the act, and could not be heard to dispute the adjudication.

to be found.

1

Sturgeon, contrà. The notice of adjudication having been given on Saturday, the bankrupt had five clear days to dispute the adjudication. Sunday was a dies non, so that the five days begun to be reckoned on Monday, and the bankrupt was in time on Friday.

Wilde, C. J. There is some difficulty in giving effect to this under the act of parliament. The courts, as they cannot here ascertain the competency of persons administering oaths abroad, will adopt the certificate of an accredited officer, namely, a notary public, stating that the person administering the oath was competent to do it. But suppose no notary is to be found in the particular place, what course is to be adopted? In the present case the certificate of a gentleman holding the rank of a major-general in the army is offered as a substitute. That rank, no doubt, was some assurance of character and station; but when the court was asked to adopt the certificate as a sufficient substitute, they must take care that they have reasonable evidence of the rank of the person giving such certificate. Here there is no affidavit of the hand-writing of that person, or that he holds the rank of a majorgeneral; and therefore, acting strictly within the spirit of the rule on the subject, and at the even if it did, the bankrupt was not within time. That rule declared, that where any particular same time providing for a new instance requir-number of days are mentioned for doing any ing our discretion, we think we can hardly accept the documents now before us; but we are of opinion that the officer may receive the acknowledgment, upon a proper affidavit stating that the hand-writing is that of the person certifying, and that he is a major-general in the

army.

Rule granted accordingly.

Mr. Commissioner Goulbourn said, that if Sunday was to be reckoned as one of the five days, the bankrupt was clearly too late, and the rules of the court did not help him. The 43rd rule (Nov. 12, 1842) did not apply to the number of days mentioned in the statute, but

act, the first day shall be reckoned exclusive, and the last inclusive, unless it falls on a Sunday. Here the last of the five days fell on a Thursday, unless the Sunday was to be excluded. The point, however, was so important, that he should consult one of his brother commissioners on it. The learned commissioner afterwards stated, that he had consulted Mr. Commissioner Holroyd, and they concurred in thinking, that as this was a remedial enact

104

66

Court of Bankruptcy.—Business of the Courts.-Privy Council Appeals.

ment, they were bound to give it a liberal construction. The statute provided, that the person adjudged bankrupt should be allowed five days to show cause against" the adjudication. Now, Sunday was not a day upon which the bankrupt could show cause, and they therefore considered it ought to be excluded from the computation. No doubt, where a greater number of days than seven were mentioned in a statute, as that must include a Sunday, if the legislature made no exception for Sunday, a

different rule of construction might apply. But if Sunday was to be reckoned in the present case, the bankrupt would really have only four days to show cause. Upon these grounds he was of opinion that the bankrupt was in time to dispute the adjudication.

Objections were then taken by the bankrupt's counsel to the evidence of the petitioning creditor's debt, and the act of bankruptcy, both of which were overruled, and the adjudication was confirmed.

BUSINESS OF THE COURTS.

Privy Council.

The Judicial Committee of the Privy Council will meet for the dispatch of business on the

Ready for hearing before the Judicial Committee of the Privy Council,

The Legal Observer,

DIGEST, AND JOURNAL OF JURISPRUDENCE.

SATURDAY, DECEMBER 4, 1847.

-" Quod magis ad xos

Pertinet, et nescire malum est, agitamus."

HORAT.

OF THE

PROPOSED AMENDMENT
LAW OF DEBTOR AND CREDITOR.

The "vacillating course of legislation justly complained of, is to be ascribed in a great degree to the absence of any defined or acknowledged principles. Now, it was THE Report of the Committee appointed thought the debtor was too severely used; by the Society of Merchants, Traders, and again, it was said the creditor was not suffiBankers, for effecting an amendment of the ciently protected; and one act of parliaLaws relating to Bankruptcy and Insolvency, ment followed the other in rapid succession, states, that the committee had a communi- the latter imperfectly undoing that which cation from Mr. Vizard, the Lord Chancel- the former had as imperfectly endeavoured lor's secretary, announcing that the subject to effect, until the law has become like a was under the Lord Chancellor's considera- piece of ill-jointed patchwork, confused, intion, and that his lordship desired to receive consistent, and wholly unfitted for the exiinformation from the traders of the country, gences of the community. which, the committee significantly add, Concurring generally in the principles "the vacillating course of legislation during sought to be established and carried into the last few years proves to be necessary, effect by the important and influential soSuch a communication, made at such a ciety, whose views are developed in the reperiod, justifies the expectation, that Lord port we last week laid before our readers, Cottenham is about earnestly to apply his and participating in the sentiment expressed vigorous and experienced mind to the con- by more than one of the speakers at the struction of a legislative measure, with the meeting at the London Tavern, that the view of remedying what the first resolution matter should not be left exclusively in the of the great city meeting, in language not hands of lawyers, we must, nevertheless, retoo strong, describes, as "the evil under mind those who are applying their zeal and which the country is now suffering from the energy so beneficially to this great question, vicious and disgraceful state of the Law of that without the zealous co-operation and Debtor and Creditor." We earnestly hope assistance of lawyers of experience and that the measure now in preparation, under practical knowledge, they will find it imthe superintendence of the highest legal possible to carry out their own objects, even functionary, and with the sanction and where those objects are accurately defined support of the government, will effect an and supported by unanimous approval. An amendment, not merely a change in the law, intimate acquaintance with the state of the and that those who have undertaken the existing law, its operation and defects, is an onerous duty of constructing a new system indispensable requisite in framing remedial of bankrupt and insolvency law will avoid measures, and to the evident absence of the errors which have rendered the course this species of information, many of the of modern legislation upon this subject, at mischiefs arising from modern legislation once odious and injurious to the great body are to be traced. Every one has been conof the commercial and trading community. sulted but those who, from their peculiar VOL. XXXV. No. 1,030.

F

106

Proposed Amendment of the Law of Debtor and Creditor.

avocations, were necessarily the best ac- creditor must know his debtor by sight. The quainted with both the principles and de-officers of the law should have power to seize tails, and the result is, that laws have been the person of the debtor during proper hours, even in his own house, and for that purpose, if passed which are found to operate in a manner entirely adverse to the expectations necessary, to break open the outer door.” and intentions of those by whom they were introduced and supported. Had competent practical lawyers been consulted, this, at all events, could never have occurred.

Finding many of the principles consistently though it may be feebly-advocated in this publication, now recognized and zealously promoted by those most interested in their adoption, we may be permitted to indulge in the language of friendly warning on one other point. The Society of Merchants, Bankers, and Traders is composed chiefly of persons influenced by the feelings, wishes, and interests, of creditors. Powerful, intelligent, and right-minded, they are still but a class, and the laws should be framed, not with a view to the interests of a class, but of the whole community. The justice and expediency of the principle asserted by the society, that the unfortunate debtor should be protected, and the fraudulent debtor punished, will be universally admitted, but the legal provisions by which that principle should be carried out, afford a very wide field for discussion, in which the views of the debtor, as well as the creditor, are fairly entitled to consideration.

Mr. Amory is reported to have expressed his concurrence with Mr. Fane in these words :

66

"He was one of a small minority of the learned profession to which he belonged who believed, with Mr. Commissioner Fane, that the entire and careless and reckless doing away with the law of arrest was much to be regretted. A great deal had been truly said about the imfor fictitious debts. He would give every perproper manner in which parties were arrested son arrested every fair and every proper protection; but in numerous instances that had come under his observation, he had found that debts were irretrievably lost from the want of being able to lay hold of the body of the debtor; and though he was advocating a principle that was longed, he would, nevertheless, go along with not popular in the profession to which he beMr. Fane in the sentiments which he had expressed on this subject."

Now we are not prepared to agree with Mr. Fane, that the Commissioners of the Court of Bankruptcy are exactly the persons sive power of ordering the issue of writs of who ought to be entrusted with the exclusider how far it may be desirable to alter the arrest; nor shall we wait just now to concommon law by enacting, as he suggests, that the officers of the law should have

With these preliminary observations, we proceed to the consideration of the measures which the society, as we understand, suggest to seize the person of the debtor; but we do power to break open the outer door in order for the improvement of the Law of Debtor and Creditor. The most important of the proposed changes is, the restoration of arrest for debt on mesne process, which, as our readers are aware, was abolished by the stat. 1 & 2 Vict. c. 110.

concur with him in thinking that the power of arresting the debtor at an early period, under

proper restrictions, is mercy to him, as well as justice to the creditor; and we venture, with great deference and respect rect in assuming that his views on this subfor Mr. Amory, to doubt whether he is cortertained by the members of the legal project are at variance with those generally enment of similar views in this publication, fession. We can only say, that the announceMr. Fane writes as has not occasioned those remonstrances which we might have reasonably expected, if

Mr. Commissioner Fane and Mr. Amory have expressed their sentiments on this question clearly and concisely, and those sentiments appear to have been received with general approbation at the meeting at the

London Tavern. follows:

"Arrest for debt ought, in my opinion, to be the declaration of our sentiments was not in restored with this modification, that no writ accordance with the general opinion of the

to

for arrest should issue, except on the order of profession. a commissioner of the Court of Bankruptcy, Another proposition suggested at the and that he should never issue it except in a meeting alluded to, and which clear case of ascertained debt clearly due. have met very general concurrence, was, that appears Arrest is a process which is cheap, sudden, and effective. There must be either seizure of the a debtor unable to meet his engagements property or seizure of the person. Seizure of should be at liberty to call his creditors tothe property is always a dangerous process, be-gether, and propose a settlement or compocause what seems to belong to the debtor may sition, to be carried into effect under the have been secretly assigned to a friend. Seizure sanction and superintendence of the Court of the person involves no mistake, for every of Bankruptcy. The details of the proposed

Proposed Amendment of the Law of Debtor and Creditor.

measure are not very clearly stated. Commissioner Fane thus expresses self:

him

107

Mr. | hundredth man stands out, not for any good reason, but that, by standing out, he may get his claim paid, and thus the whole arrangement falls to the ground."

Much, also, ought to be done for the honest Upon this proposition we shall only obdebtor, willing to do the best justice in his power to his creditors. He should be enabled serve, that its merit depends altogether upon to call his creditors together under the sanction the provisions by which it is carried out. and superintendence of the Court of Bank- An attempt has been made to embody a ruptcy; but the interference of that court somewhat similar principle with respect to should, in the first instance, be of a limited insolvents who are not traders, in the statute, character. It should announce, not that he known as "The Debtor and Creditor's Arwas a bankrupt, but that he was desirous of

been rarely resorted to, and to this circumstance, no doubt, it may be ascribed that its defects are not generally felt, and that it has been so long allowed to encumber the Statute

laying the state of his affairs before his cre- rangement Act," (7 & 8 Vict. c. 70). The ditors. It should order no seizure of his pro- machinery under which it is proposed to perty; it should cause no interruption of his effect" arrangements" under that act, howbusiness. All that it should do, in the first in- ever, is so clumsy and inefficient that it has stance, should be to superintend and sanction the choice of inspectors; and unless the inspectors, representing the majority, should be of opinion that the case was one which called for public bankruptcy, or some creditor could show that the debtor had acted fraudulently, there should be no further publicity, nor any further interference on the part of the court, than some species of sanction, by authority, of what had been done by consent."

Mr. Amory, whose experience entitles all that falls from him to much respect, is reported to have delivered himself on this subject as follows :

Book.

One other practical suggestion was made at the public meeting, in accordance with views thrown out in a recent number, as to the difficulty which the law imposes in proving an act of bankruptcy. Mr. Johnson, (one of the official assignees of the Court of Bankruptcy) said :

"In order to avoid many of the evils complained of, a simple enactment would sufficemaking the suspension of a house of itself an act of bankruptcy. If that were to be law, no payment should be made afterwards, and the practice of parties giving away their property after suspension would be completely put down.”

Such an enactment appears to us to be unobjectionable in principle, and calculated to remove the unnecessary obstacles which creditors now encounter who desire to divide the assets of insolvent firms amongst those who are equitably entitled.

"There were many things in the letter of Commissioner Fane in which he entirely concurred, but there was one of more importance than all the rest, to which he would briefly refer,--that of allowing a formal and legal settlement by parties out of court when there had been a certain sanction given to it by the Court of Bankruptcy. It comported with his experience that this mode of settlement would be highly satisfactory. Thirty years ago, he was engaged on the part of a large body of merchants and traders, met in that very room, for the purpose of amending the law of bankruptcy in Scotland, and this circumstance had We are forced to conclude without pointgiven him some experience on the subject. serious error There was one thing in the Scotch law very ing out to the committee a very analogous to what Commissioner Fane referred which appears in their report with respect to to. One of the provisions of the Scotch law the operation of the provision contained in was, that after the first meeting the subject of the Small Debts Act, (8 & 9 Vict. c. 127,) the commission was called upon to propose a empowering imprisonment for 40 days for private mode of settlement of his affairs-to debts under 201. The practical effect of this propose a composition or some kind of settleenactment is very different from that which ment. If he did so, the propriety, fairness, and fitness of that composition was examined by the committee appear to contemplate, and the authorities named in the commission, and demonstates how essential it is to the ends of if it received their authority, it was binding on justice that laws affecting all classes of the the creditors at large. It would be in the ex- community should be prepared under the perience of most gentlemen, that the greatest superintendenee and revision of those who difficulty that existed in practically working out have no class interests to promote, and no the law of insolvency was this-that if a large class prejudices to blind them. We shall which their affairs are to be wound up out of return to this subject on an early opporcourt, perhaps after the greatest exertions have tunity.

house fails, and if an arrangement is made by

been made, when 99 out of 100 creditors have

given their consent to the arrangement, the

F 2