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Review: Davies and Laurent on the Mercantile and Bankrupt Law of France.
terest of the alien debtor, call upon the French creditor also to give proper security.
"Thus, where a Frenchman from motives of malevolence wrongfully claims a debt of an alien, putting him to grave inconvenience, by arresting his person or seizing his goods, the injured party is safe to obtain a just reparation, inasmuch as the Tribunal will inflict damages in proportion to the injury suffered. "This is so well known in France, that we may safely assert, without fear of any wellfounded contradiction, that there are many instances of Frenchmen having had to pay heavy damages in consequence of unjust and vexatious claims preferred against aliens.
"The warrants of apprehension or of seizure are granted by the Judge (who is the president of the Civil Tribunal, specially appointed for that purpose by the law), in the absence of the debtor, but the latter can always, of right, demand to be immediately brought before the Judge, and to raise the question of reciprocal security, should he desire it. Consequently, no arrest of the person or seizure of the goods is ever actually consummated without a previous hearing of both parties before the Judge.
"The authority of the Judge is absolute in the above cases. However, if the arrest of the person or the seizure of the goods of the alien debtor has been effected in an irregular manner, and not in conformity with the proper forms and rules of the law, the aggrieved party may the same day, or the day after, move the Civil Tribunal to antul the proceedings, and the decision pronounced by the Tribunal on this motion, may be referred for revision to the Imperial Court of Appeal, which will give judgment in a few days, and again from the decision of the Imperial Court an appeal lies to the Supreme Court of Cassation; but the judgment of this latter Court is not so promptly given.
"The provisional arrest of the person of an alien debtor and the seizure of his goods are called conservatory measures.
"The independence and integrity of the French Judges are proverbial, and there is so wide a distance between the Judge and the litigants, that no occult influence can be brought to bear upon the decisions of the former.
"Such are, on the one hand, the only exceptional weapons which the laws of France place in the hands of the French creditor against an alien debtor, and on the other hand, the protective dispositions which the same laws have made in the interest of the alien debtor, who is thereby effectively protected from all Wrongful molestations and vexatious claims.
"Arrest of the person of a debtor, and provisional seizure of his goods and chattels, may also be resorted to, on the part of an alien creditor, against a French subject, but only under certain conditions,-viz.:
"The personal arrest can only be effected after the alien has obtained a judgment which constitutes him creditor of a sum exceeding 200 francs, or 81. English money, and the pro
visional seizure of goods only if the debtor is a hawker, or perambulating dealer, or if he is about to remove his furniture and goods.
"The requisite permission to take the latter measure (seizure of goods and chattels), is obtained, as already stated by application to the Judge.
"To sum up, the only difference which exists between the rights of French subjects against aliens and those of the latter against the former, consists in the provisional arrest of the debtor granted to the French, and refused to the alien creditor.
"We have deemed it advisable in the first place to point out this exceptional difference, that we may without restriction or impediment enter upon the consideration of all the other parts and branches of the law which apply equally and without distinction to French subjects and to aliens."
The Chapter on Law Charges and Expenses will be read with some interest. It
is there stated that
"From the extreme simplicity of the forms of procedure in commercial suits in France (see chapter XII.), the law charges and expenses incurred in such suits, and in the execution of the judgments obtained, are very moderate, which is a capital point in favour of the interests of commerce.
"In principle, justice is dispensed gratuitously, in this sense, that the Judges are paid by the Government.
"The Judges of the Tribunals of Commerce receive no remuneration whatsoever. Their functions are of a purely honorary character.
"The emoluments or fees of the public officers (attorneys, notaries, apparitôrs, &c.), charged with the management of law-suits, or with the service of notices, summonses, and other law processes, are very moderate, and are regulated by a tariff, under the inspection of the Judges.
"Counsel's fees are not fixed. The client who consults a counsel or advocate, or engages him to plead his cause before the Tribunal, hands over to him a fee, proportionate to the importance of the case and the talent of the man. Disputes never arise on this point.
"The society of advocates or barristers, wishing to secure for their profession perfect independence and liberty of action, recognises the principle that every one of its members is presumed to afford his professional services gratuitously, and cannot, therefore, maintain an action for remuneration for the same. It never happens that clients take an unfair advantage of this circumstance.
"The most important charges connected with the proceedings in a suit are those imposed by the Government in the shape of duty, and which are proportionate to the amount awarded by the judgment of the Court, and in certain cases even to the amount claimed by the plaintiff. The following remarks will serve as a guide in this respect.
Legal proceedings to enforce a bargain or
payment of a bond can be commenced only if Mr. Moffatt afterwards took a lease of his the bargain or contract of sale or bond has business works, and he deposited with the been provisionally registered. The registration lessors' solicitors, who also acted for him, duty is two per cent. on the total amount of the lease, together with the bill of exthe sum involved, in the case of contracts of sale; one per cent. in the case of bonds. On change, as a security for the costs of prea banking account (compte de banque) the duty paring the lease, amounting to 411. 168. 2d., is two per cent.; on a promissory note (billet which he was to pay. Mr. Moffatt subseà ordre) half per cent. ; on a letter of exchange, quently became embarrassed in his circumquarter per cent. stances, and assigned the lease to secure a sum of money. The appellants acted for the assignees and also for Mr. Moffatt in that and other matters, and for the purpose of obtaining the lease they went to the lessors' solicitors and paid their bill of costs, and received the lease, together with the bill of exchange, but without any authority from Mr. Moffatt for that purpose.
"A duty of one-half per cent. is levied besides on the amount awarded by the judgment of the Court, no matter for what cause, except it be in the shape of damages, in which case the duty is raised to two per cent. on the
amount of the sum awarded.
Judgments disposing of disputed points without decreeing payment of a sum of money, are subject to a very trifling fixed duty, varying from two to five francs.
"The stamped paper used in law-suits is also subject to a moderate duty. There are different sizes of stamped paper, which vary in price from 70 centimes (7d.) to 1 franc 25 centimes (18.)
"These duties constitute the law charges invariably decreed by the Court, and which fall on the losing party. However, the plaintiff, or prosecutor, must always advance them, except in case of inability from indigence."
"The costs incurred in the execution of the judgments of the Courts are moderate, and are also regulated by a fixed tariff.
"The expense of attaching and imprisoning the person of a debtor is about 200 francs (81. sterling). The maintenance of the debtor in prison costs about 25 francs per month, which the detaining creditor is obliged to pay.
"Upon the whole, the law charges and expenses incurred in commercial suits in France, are by no means heavy, and it happens very rarely indeed that the dread of the law expenses will induce a creditor to refrain from the prosecution of his rights.
"The Government, in its solicitude for the indigent, has lately proposed and carried a law enabling indigent parties to sue in formá pauperis, that is, without being obliged to make the least advance for law charges and
The appellants claimed a lien on the bill of exchange for their bill of costs in respect of all the matters in which they had acted for Mr. Moffatt, and afterwards discounted the bill with another defendant, receiving the full amount less the discount. This bill was then filed for delivering up of the bill and for an injunction.
Lord Justice Knight Bruce said,—
"There can be no doubt, so far as I can judge of the facts, that, as between Mr. Moffatt and Mr. Gibson, it became (in point of what is called honour, if not of actual right) the duty of Mr. Moffatt in the state of his circumstances, and with regard to the transaction of the 30 January, 1851, to deliver back the bill of exchange to Mr. Gibson. I do not say that Mr. Gibson had at that time any enforceable right to have it returned, but as between him and Mr. Moffatt his claim had ripened into a right, if not before March 3rd at least on that day. However incorrectly the order of Mr. Moffatt to the appellant dated on that day may have been and probably was worded, there is no doubt but that the intention of the transaction was to revest in the plaintiff completely, as between him and Mr. Moffatt, the title to the bill of exchange. And I apprehend that in equity the effect of what was done on that day (if not of what had been done before) was, that although Moffatt had incumbered the bill with a debt from him to the lessors' solicitors, still, as between Moffatt and the plaintiff, it was the duty of Moffatt to discharge the bill of exchange from that lien. This might have created a difficulty but for the fact that the debt of the lessors' solicitors has been disSO-charged notwithstanding out of funds belonging to Moffatt. That being so, all the rights and equities which might have existed if the debt had not been discharged may be dismissed from consideration. Then the case THE plaintiff, Mr. Gibson, agreed to 417. 16s. 2d., and from all question as to the being delivered from all question as to the lend a Mr. Moffatt 5001. upon certain title of the plaintiff, the point arises as to the terms, and endorsed to him a bill of ex-paramount right claimed by the appellants. change for 250l. as part of the advance. They claimed it by way of lien, either of dor
"The public officers and the Government have their remedy for their fees, and for the costs and charges incurred, afterwards, against the losing party, if that party is solvent.
"It has ever been the custom of counsel in France to give gratuitous advice to the poor."
LAW OF ATTORNEYS AND
GENERAL LIEN ON BILL OF EXCHANGE
AS AGAINST CLIENT.
Law of Attorneys and Solicitors.—United Law Clerks' Society.
mant lien or of lien by express agreement. employment, but not exceeding one year. But how did they acquire possession of the Should it extend over that period, the member security, without which there could be no is entitled to half the amount during a second lien? The lessors' solicitors had a demand year; and if his affliction assume a permanent on Moffatt for the preparation of the lease, character, then he is entitled to relief for life and had in their hands not only the lease but out of the Superannuation Fund. Two of the bill of exchange belonging at that time to these cases of sickness terminated in the memMoffatt. In the course of the transaction of bers being placed on that fund, and three the business it became material to have the others ended in death. The total relief aflease, and the appellants went to the lessors' forded to the members on account of sickness solicitors and took the lease, paying their de- alone amounts to the sum of 3,3491. 16s. 6d. mand. They then found for the first time that the lessors' solicitors had as a security for the are increasing. The claims on the Superannuation Fund same demand this bill of exchange. Now it there are now seven-requiring a yearly exLast year there were fivewas an act in the proper discharge of their penditure of 2391. 4s. In three of these cases duty to obtain the lease; and though they had the members receive yearly 311. 4s. each, and no express authority to do so, it may be that the remaining four 361. 88.; this relief is the money which was actually paid gave them able weekly, and is granted to all members not only a personal demand against Moffatt, who may be permanently disabled by incabut gave them also the same rights as the les-pacity of any kind from following their emsors' solicitors had in the lease and the bill of ployment, and continues for life. It is not exchange. But they contend that they thereby dependent on any election or the attaining any acquired a general lien upon the bill. To particular age. Not one of these superanthat argument I am unable to accede. The nuated members is disabled by old age, one other solicitors held it for a specific purpose, is so from loss of sight, the others from loss and upon an express contract. The appel- of mind. lants could not without the sanction of their client obtain any better or higher right than the other solicitors had. In Stevenson v. Blakelock, 1 Mau. & S. 535, there was an express authority to complete the transaction as it was completed.
"It is said that the right of the appellants was at all events converted afterwards into a general lien by express agreement. On that point the evidence is contradictory. This, however, was a dealing between solicitor and client, and I apprehend that before it was competent for the appellants to enter into a binding agreement with Moffatt, it was incumbent upon them fully and exactly to explain to him his rights. This does not appear to have been done. Without intending any disrespect to these gentlemen, I am of opinion that claiming such a right they must clearly prove their case, and they have not done so to my satisfaction. On these grounds the plaintiff has, I think, established his title, not merely against Moffatt, but against the 'appellant." Gibson v. May,
4 De G. M'N. & G. 512.
UNITED LAW CLERKS' SOCIETY.
TWENTY-THIRD ANNUAL REPORT OF THE
THE Committee respectfully submit to the Patrons and Members a Report of their proceedings during the past year, being the twenty-third of the Society's existence.
The number of members who in the past year claimed relief on account of sickness has been 25. 1217. 7s. 6d. has been expended in meeting these claims-considerably less than was required in the two preceding years. Each applicant receives one guinea weekly, so long as his illness disables him from following his
The Committee were able to announce at the last anniversary, that in the year preceding not one death had occurred amongst 524 members. On this occasion they have to report the death, since the last festival, of six members. The family of each received the sum of 501. The Committee have also to report the death of the wives of five members, to each of these members the sum of 251. has been paid. The total expenditure on account of death has reached the sum of 4,9271. 10s.
Every member is entitled to participate in all the benefits; the receiving relief in sickness does not interfere with his right to superannuation in permanent infirmity, nor does the receipt of both in any way diminish the relief his family are entitled to on his decease.
The Committee regret the loss, by death, of Mr. Thomas Clarke (the late Solicitor to the Board of Ordnance), one of their Trustees. Mr. Clarke was one of the Society's earliest and warmest friends, he was a subscriber from the beginning, and upon several occasions rendered it the most valuable services. Committee have the pleasure of stating, that Mr. George Herbert Kinderley has kindly consented to become Trustee in the place of Mr. Clarke.
The Committee are happy to report, that although the past year has been one of great off in the number of donors, and they anpecuniary pressure, there has been no falling nounce with much pleasure, that the number of members is steadily increasing, and that their total contributions during the year have exceeded 1,2007.
The Committee have devoted their best attention to the preservation and increase of the Society's capital, and the increasing number of superannuated members has rendered this most important. On the 3rd April, 1854, the Society's capital amounted to 16,7941. 5s., since
June 13, 1855.
HARRY G. ROGERS,
which there has been received 21891. 18s. 8d. ceive a continuance of that support which has The expenditure on account of sickness, su- been the principal cause of its usefulness and perannuation, and death, and necessary dis- prosperity. bursements, has amounted to 8941. 4s. 3d.; the difference has been added to the Society's capital, all investments of which are made with the Commissioners for the Reduction of the National Debt. These investments, on the 20th May, 1854, amounted to the sum of 16,8187. 10s. 3d.; on the 20th May last, they amounted to 18,168l. 19s. 2d. The importance of increasing these investments is the more apparent when it is stated that the interest of the last year's savings will not more than provide for the yearly allowance of one of the two members superannuated since the last anniversary.
The Casual or Benevolent Fund is a fund formed by the donations of the Profession for assisting all deserving Law Clerks, their widows and families, when suffering from unavoidable distress. Every member also contributes to this fund. The relief afforded consists of gifts of sums of money not exceeding 51. Every application must be recommended by a donor or member, and no applicant receives relief until the Committee are satisfied by careful investigation that the applicant is deserving of it. Forty-eight applications have been received during the year. Of these 41 were from distressed but deserving persons, who were relieved as far as the funds permitted. The remaining applications could not be entertained being ineligible from various causes. Of the applicants relieved, two only were members. The rest were non-members and the widows of law clerks generally. The Committee bave also, out of the Casual Fund, granted several small loans to members needing temporary pecuniary assistance, but who would not take it by way of gift. These loans are made without interest or charge, and are repayable to suit the circumstances of the borrower. In these gifts and loans there has been expended, since the foundation of the Society a sum of 5,2241. 16s.
In April, 1854, the cash in hand belonging to the Casual Fund had been reduced to 391. 68. 6d.; the year's receipts have been 3871.9s. 5d., and the disbursements 3831.5s.6d.; leaving in hand to begin the year 43l. 10s. 5d.
The Committee are constantly adding to the Library various useful practical and other works, from which the members are deriving great advantages.
In conclusion, the Committee return their sincere thanks to the Bench, the Bar, and the Profession at large for the kind support the Society has already received. It has in the course of 23 years expended in actual relief to law clerks, their widows, and families, in the time of adversity and distress, a sum exceed. ing 13,000l., at the same time gradually setting apart a fund, which it is hoped, places the Society beyond risk. Fully aware that its present satisfactory position could never have been attained without the aid of the Profession, they trust the institution may long re
[We shall probably be able, in our next Number to give a full report of the eloquent and appropriate speeches which were made at the Anniversary Meeting on the 13th inst., by Lord Justice Turner, the Chairman, and by Lord Justice Knight Bruce, the Vice-Chancellor Wood, and Sir John Patteson, and by other Patrons of the Society.-ED.]
SUMMER CIRCUITS OF THE
Lord Campbell, C. J.
Thursday, July 12, Cardigan.
Saturday, July 14, Haverfordwest and Town.
Jervis, L. C. J.
Tuesday, July 17, Newtown.
Pollock, L. C. B. and Erle, J.
Parke, and Alderson, B.B.
Summer Circuits of the Judges.-Candidates who passed the Examination.
William Bernard Ogden; Thomas Loughborough
Robert John Child
Thomas Smith James
John Sims Weir
Robert Riddell Bayley
John Bate Cardale
Jonathan Rogers Powell
John Brooke Hvde
John Cowper Mee
Robert William Peck
James Woods Weston
Thomas Gilchrist; William Willoby
John Green; James Currie
Samuel Fozard Harrison
William John Hellyer
James Brown Simpson
Thomas Edward Drake
James Chaldecott Sharp
Henry Augustus Templer