Imágenes de páginas
PDF
EPUB

We think, therefore, that the mingling together of

ON THE TRANSMISSION OF BILLS OF LADpersons sentenced for criminal offenses, and those who,

ING AND OTHER NEGOTIABLE INSTRUso far as the law is concerned, are only unfortunate, is

MENTS BY TELEGRAPH. a mistake that operates to the prejudice of the individual whom it is designed to benefit, by destroying

As the subject described in the heading to this his reputation, and inflicts an injury upon the public, article will probably be new to most of our readers, by rendering all movements for the rescue and reform it will, perhaps, be best for us to arrange the various of abandoned children unpopular.

points involved in the consideration of it in the order There is another cause why very many of these

in which they first occurred to us. institutions have accomplished so little. This has

The question was first suggested to us by a case in been the introduction of religious instruction. In

the court of chancery, respecting bills of lading, and speaking concerning the point, we desire to cast no

as, possibly, some of our readers may not be familiar reflection on the intentions of those who have labored

with these documents, we will commence by stating, so zealously for the welfare of our unfortunate classes. shortly, what a bill of lading is. A bill of lading is a But it has seemed to us that they have sometimes receipt given by the master of a ship for goods placed carried on their work in such a manner as to defeat on board her. Its form is liable to be varied, at the the very purpose for which it was begun. The main desire of the shipper, but it will be generally found end sought has been claimed to be, the making of to contain an accurate description of the goods, with good citizens from persons liable to make themselves an acknowledgment by the master that they have bad ones.

For this, laws have been passed, and pub- | been placed on board his ship, and an undertaking by lic moneys appropriated. If this end is gained public him to deliver them at the port of destination, to the opinion will be satisfied. Whatever may be demanded shipper, or such person as he may order. The shipin other countries, the theory of our government for per then generally sends this bill to the person bids the inculcation by public authority of religious to whom he wishes the goods to be delivered tenets. Yet we find, in almost all these institutions, at the port of destination, indorsing on it an the teaching of doctrinal dogmas a prominent feature order that they are to be delivered to that perin their course of instruction. As men do not all son, and the person indicated then takes the bill agree on the same dogmas, it has been found neces to the ship, when it arrives, and claims the goods. sary to multiply reformatories, so that each faith shall It is not, however, necessary that the goods should be accommodated; thus the State becomes a religious be claimed by the person immediately named by the educator. All this would do little harm if the ten- shipper. A bill of lading is negotiable, like a bill of dency was not in taking care for the spiritual weilare exchange, and may be indorsed any number of times, to overlook the temporal, seeking to fit the individual and the right to receive the goods always passes with for the life hereafter, and forgetting the no less essen it. By means of it, therefore, the goods may be sold tial duty of fitting him for the life here.

before they have arrived, and without it the intended A third reason why reformatories have done less consignee cannot make a title to the goods at all, and than they ought may be found in the methods of a valid security upon the goods may, therefore, be manual labor usually adopted in them. The pretense created by a deposit of the bill of lading. of their managers is, that a child committed to their mention, also, in view of some remarks we shall have care will be instructed in some useful trade, whereby to make at a later stage, that a bill of lading is genhe may afterward earn an honest livelihood. But for erally signed in triplicate. The object of this is to the most part, this pretense is wholly false, the child enable it to be transmitted safely by post. The first being generally taught only to perform some single and second parts are sent independently to the consimple mechanical process, and this not that he may signee, just as a bank note is often sent in two halves, be better able to support himself when he grows up, and the third part is kept ready to be sent in case of but in order that certain work for which the institu a miscarriage happening to either of the first two tion gets pay may be accomplished. Tasks, monot-parts. With these preliminary remarks, we will state, onous and laborious, are given out, and their per- shortly, the circumstances of the case in the court of formance enforced by penalties. The character and chancery, which suggested to us the subject of this effects of this system are fully set forth in the report article. of the commission on prison management, made to A merchant had ordered goods to be sent to him the legislature last winter. While there may be dif from some distant country; he had been informed by ference of opinion as to the policy of abolishing the telegraph of their shipment; and, being in want of contract system in our State prisons, we cannot see money, he obtained a loan on giving a promise, in how any unprejudiced person can favor its retention writing, to repay the money out of the produce of in places where the only inmates are children. To the goods, and, for security, to hand over the bills of do so makes consignment to a reformatory equiva- lading to the lender as soon as they arrived. He was lent, in fact, to imprisonment at hard labor, and it is then adjudicated bankrupt; the bills of lading fell so regarded by a large portion of the people.

into the hands of his assignee, and the question was,

We may

[ocr errors][merged small][merged small][ocr errors]

whether the person who made the loan was entitled we might oust misplaced credit altogether from the to the produce of the goods, or whether they be- field, and relieve ourselves of all further fears of banklonged to the assignee for the benefit of the general ruptcies and panics, and the losses caused by them. creditors.

We cannot, of course, hope to arrive at this state,

but Without stopping to discuss the question in whose we may make some efforts to come a little nearer to favor this point ought to have been decided, we will it than we are at present, and diminish the frequency at once call attention to the thought that it suggested and intensity of the evils caused by misplaced comto us, that is to say, that it is most desirable that a mercial confidence. A scheme by which the conmerchant, to whom goods have been shipped, should signee of goods could make a title to them, the have the power of giving a good security upon them, moment he was apprised by telegraph of their shipas soon as they have been actually consigned to him. ment, would, we conceive, be a step in this direction. A moment's reflection will show that this end would

We will assume, therefore, that the law ought to not be obtained by merely deciding the case we have enable a man, to whom goods have been shipped, to mentioned in favor of the lender. Supposing such give a good security upon them as soon as their shipa security as that there given to be good against the ment is intimated to him by telegraph. We then borrower's assignee or trustee in bankruptcy, what have to consider next what provisions it would be is to prevent the merchant from borrowing in the

necessary to make in order to enable this to be done. same manner from half a dozen different persons, on First, then, in order to make one security effectual, we security of the same goods, and what will then become

must deprive the man making it of the means of givof the security ? Clearly, all the lenders but one would ing another. That is to say, it will not be sufficient find their security worthless, and if, when the bills of that he should show the telegram to the lender, and lading arrived, the borrower did not keep any one of give a charge in writing on the goods or their prohis promises, but sold the bills to some third party, ceeds, for he might repeat that process to half a dozen

the former len would be excluded altogether. people, but he must also give up the telegram to the It may safely be affirmed, therefore, that at present lender, and the possession of it must be essential to there is no mode by which the consignee of goods the validity of the security. For the same reason we can raise money upon the security of them until he

must take care that our borrower shall not obtain receive the bills of lading, and this must necessarily

more than one copy of the same telegram, and our be long after the shipment, and, perhaps, even after the law must, in fact, forbid the issuing of these telegrams arrival of the goods. If, therefore, he requires money in duplicate. Again, we must provide measures for during this interval, he may find himself unable to preventing the correspondent in the foreign country raise it at all, or only able to raise it at a very high from sending more than one telegram relating to the rate of interest; and that, although he is possessed of same goods, or sending a telegram when there are no property far more than sufficient to repay the loan he goods at all. And for this purpose it would seem that requires. His property being at sea, he may find it ought not to be left to the private individuals to himself financially at sea also. Now, if we could send the telegrams, but that an office, under the condevise a method whereby, as soon as the shipment trol of the government, should be established, in of the goods was announced to the consignee by order that its messages might be known to be autelegraph, he could sell them or give an effectual se thentic. curity upon their proceeds, he would be able at once There is also another consideration which will lead to raise money upon favorable terms, to an amount us to this same conclusion, and that is, that ordidiffering only by a slight margin from the full value narily the bills of lading carry the right to the of the goods themselves. The money thus raised goods; supposing, therefore, a loan to have been might then be employed in some other commercial effected on some goods, of which the shipment was adventure, which could not now be undertaken at all, notified by telegraph, still, when the bills of lading and the man's money might be turned over, as the arrived the recipient of them might, as he may now, saying is, much more rapidly than can be done at raise money on a deposit of them, or sell the goods present. Thus we should stimulate trade, by extend by their means, notwithstanding the previous security ing legitimate credit, that is to say, by enabling credit effected on the telegram. It might, also, happen that to be given where it deserves to be given, which the shipper of the goods, after sending the telegram, increases, in fact, the available capital in the world. might, himself, transfer the bills of lading to another The more certain also we make credit, that is to say, person, mortgaging them to a bank, say, in his own the more we en able all persons worthy of credit to country, and the bank would then send them to their show their title to it, so much the more difficult do correspondent at the port of destination, who would we make it for persons who do not deserve it to clearly have a title to the goods. Our law should, of obtain it under false pretenses, and defraud their course, provide for these emergencies, and the best neighbors of their money. If we could but devise a means of doing so would seem to be the institution simple and certain method of supplying every person

of a responsible office, which should examine the bills with a title deed to all credit that he really deserved, l of lading, and stamp or write upon them, in the lan

[ocr errors]

guages of both the countries of shipment and des one or two more intermediaries, whereby time would tination, a short note, saying that the rights originally be lost and expense incurred, for a commission would annexed to them had been disannexed by telegraph. often be charged on such a remittance, and the risk This cancellation of the bills of lading, be it observed, would be run of putting a weak link in the chain. is the vital point in our scheme. It should, of course, Now, if the system we are advocating were in operabe a criminal act for any person to present fictitious tion, no bank would find any difficulty in obtaining documents for the official stamp, and the officer should credit on an emergency from another bank, at a dishave power to require proper proof from any person tant town, since it would only have to transmit an presenting documents, that he was really entitled to approved security of the amount for which credit the rights which they purported to confer. The best was required; or a remittance might be made, withmeans of defraying the expense of the public offices out risk of loss, direct from one individual to another would, probably, be by charging a small fee for stamp- without the intervention of banks at all, and without ing the documents and for announcing the fact by the necessity of paying any commission. telegraph to the person to whom the message was Considering it, then, to be both desirable and pracbe sent. It might be desirable, at the same time, as

ticable that the rights annexed to the documents we a further precaution against fraud, that one of the have mentioned should be transmissible by telegraph, copies of the bill of lading should be left at the office it would, of course, be requisite to enable the transto be transmitted by post to the person indicated.

feree to obtain from the telegram all the benefits which We have hitherto spoken only of bills of lading, he would derive from the original documents thembut the considerations we have entertained may very selves. We have then to consider what conditions well lead us to go a step further, and inquire whether have to be fulfilled in order that this may be done. the same system might not be extended, with advant- First, then, it should seem that the transferror should age, to bills of exchange, promissory notes, bank notes, indorse the original documents, if necessary, to the and other documents. The general effect of such an ex transferee, and do all other things which might be tension would be to enable all mercantile matters to be required for perfecting his title; next, that the teletransacted by telegraph, which can now be done by gram should set out the whole of the document, and post. The expense of transmission by telegraph give official notice that the document set out had been would, of course, be greater than that by post, so stamped with a telegraph stamp, and the rights anthat recourse would not be had to the former, unless nexed to it transferred to the person mentioned. And the saving of time would more than compensate for it would be best that the telegram should be addressed, the extra expenditure. If we had space to enter into not to the transferee himself, but to the public officer the details of commercial matters, we could easily of the telegraph office nearest to his abode. Then, at show that this would often be the case, and that a the receiving office, a fair copy should be made of the system which provided for the instantaneous remit document transmitted, on good paper, to be stamped tance of money would enable many dealings to be at the cost of the transferee with the stamp which it effected more advantageously than at present, and would have been necessary to affix to the original many others to be undertaken which cannot now be document if it had arrived in the ordinary way, and transacted at all. In particular, we may point out, also, probably, with an extra stamp to cover the exthat, in the dealings which take place between banks penses of the department. This document might in different parts of the world, a means of transmit be conveniently called a certified telegram. A clause ting money almost instantaneously would be found of should be printed in the paper, with blanks to be very great practical utility. People often require to filled up in each particular case, certifying that an have a remittance of money made to them in less official telegram had been received from the place time than the interval required for the delivery of let- whence it was sent, stating that a document in the ters by post. This can be done at present only in the words thereon written had been stamped with a telefollowing way: A., at London, say, telegraphs to B., | graph stamp, and the rights annexed to it transferred at New York, to remit a sum of money to him; B. to the transferee. This document should, then, to all then pays it into a bank at New York; that bank intents and purposes, represent the original document telegraphs to its correspondents in London, and they which had been stamped in the distant country. give A. credit for the sum. This appears satisfactory should be transferable by the same mear

eans; it should enough, but let us observe, that, in order to enable impose the same obligations on an indorser; it should the transaction to be completed, it is necessary that authorize all payments made on the strength of it, and the bank at B.'s locality should have a correspondent be receivable in evidence in all courts of justice. It in A.'s locality, who would be willing to give it credit should carry, in fact, all the rights belonging to the for the sum to be remitted. If, instead of supposing original document, with the right to possession of that New York and London to be the termini of the document superseded. It might also be included in operation, we took two provincial towns in England the list of documents, whose rights could be transmitand America, this would rarely be the case, and the ted by telegraph. remittance could then only be made by the help of It would not, in the first instance certainly, be

necessary to have a department for the purposes we Hewitt, 6 Hill, 254, it was conceded that the remedy are considering annexed to every telegraph station, or by motion in such cases was proper, and the motion in any thing near it. It would probably answer all pur that case would have been granted had it not appeared poses if there were one in every great port or great that the judgment was entered upon a cognovit commercial town in every country. The persons given as a compromise for a less sum than was due. desiring to make remittances by telegraph would The motion in that case was for a perpetual stay of probably reside in the neighborhood of these towns; execution upon the judgment. Such is this motion, and if they did not do so, they would find little diffi- and I think it must be granted; but as it is granted culty in getting their business done for them by means as a favor to the defendant, and the plaintiff was enof agents, who would spring up as soon as they were titled to appear and oppose, it must be upon payment required. With respect to the receipt of remittances, of costs of opposing, $10. So ordered.” the same remark also applies; but if, in any case, a Upon a careful examination of the whole report in remittance had to be made to a person living at a dis-Thompson v. Hewitt, I find no intimation by court or tance from any of the centers, it might be effected by counsel as to what the court would have done with sending the certified telegram to the person indicated the motion had it not appeared that the judgment was by post. A similar system is, I believe, often adopted the fruit of a compromise. But it does appear that now in the transmission of telegrams, that is to say, the judgment was a compromise for a less sum than a direction is sent to the master of the office at which was claimed to be due, and was recovered intermea telegram is received, to send it on by post, instead diate the presenting of the petition and the granting of resorting to the more expeditious, but more costly, of the discharge in bankruptcy, and, consequently, not process of employing a special messenger.

cut off by the discharge; and it also does appear, in the closing sentence of Justice Bronson's opinion, that,

“if there is any way in which he can set up his disA QUESTION UNDER THE BANKRUPT ACT charge as a legal answer to the judgment, he does not OF 1867.

want our assistance." Now, in this case of Huber v. Does the bankrupt's discharge authorize a State | Ely, the judgment was recovered before the presencourt, upon a motion by the bankrupt, to order a per tation of the bankrupt’s petition, and of course was petual stay of proceedings on a judgment against the

cut off oy the discharge, and of course, there was a bankrupt?

"way in which he could set up his discharge as a To one familiar with the provisions and the theory | legal answer to the judgment," and of course he did of the act, this question might not appear to be neces not need the court's “assistance" on this motion, and sary; but, strange as it may seem, the point has been

“ clearly" it should not have been granted. The case presented at a special term in the fourth department, of Clark v. Rawling is, if possible, less pertinent. It and decided in the affirmative.

was an ordinary judgment creditor's bill, to which The case was this:

the defendants interposed their bankrupt's discharge, On the 5th of September, 1863, Huber recovered a to which the plaintiff replied that the judgment was judgment in the New York supreme court against Ely, recovered after the presentation of the bankrupt's on contract for $680.61, debt and costs, upon which petition; to this the defendants responded, that the execution was issued and returned unpaid.

judgment was recovered upon an old debt, and the On the 26th day of February, 1868, the defendant court very properly held that the debt, existing at the filed his petition in bankruptcy, and such proceedings time of the presentation of the petition, was cut off were thereupon had, that, on the 27th day of October, by the discharge, and dismissed the complaint, and 1868, he received his discharge in due form.

this is all that was “held” in that case. At the special term held in Livingston county, July What Judges Hurlbut and Bronson said, in regard 31, 1871, the bankrupt, upon an affidavit setting forth to the relief which was formerly obtained by audita the above facts, and representing that the judgment querela, being now obtained by motion, is based on a remaining on record was a hindrance to him in carry-position stated hy Bronson, J., on page 226, that ing on active business, and in buying and selling real when the case is such that defendant ought to have estate, etc., moved the court for an order, directing the relief, his remedy is a direct proceeding to get the county clerk to satisfy or cancel the judgment, or rid of the judgment, either by setting it aside or for a perpetual stay of proceedings. The court“ took obtaining an order for a perpetual stay of proceedthe papers,” and, after due deliberation, delivered the ings.” If, for instance, before or after judgment, following opinion:

something is done which pays or otherwise satisfies “The motion in this case, I think, must be granted. the debt, then it may with propriety be said, that In the opinion of Judges Hurlbut and Bronson in " the defendant ought to have the relief; ” and the court Clark v. Rawling, 3 Comstock, 221 and 227, it is held will grant the relief on motion. But a bankrupt's disthat the relief in such cases, formerly obtained by charge does not pay or otherwise satisfy the debt. audita querela, is now obtained by motion, and that The difficulty in applying this practice to the case the party has no other remedy. In Thompson v. of Huber v. Ely is, that Ely ought not to have the

set up

relief asked for, at the hands of any court, for the better served if police officials were fordidden, under reason that he already has in his hands all that the act penalties, to converse with a person under arrest conof congress authorizes him to have, viz. : his bank- | cerning the alleged crime for which he is held. rupt discharge, which is, in and of itself, a perpetual stay of execution of this judgment, and which he can as a legal answer ” to any action or other

Much of this harassing prisoners springs from a

custom that has become too common, of offering proceeding to enforce it; and, therefore, he does not

rewards for the conviction of parties supposed to have need, and ought not have, the “assistance” of this or

committed a felony or misdemeanor, involving injury any other court on such a motion.

It may not be improper to add, that if the plaintiff to person or property. In order to stimulate the in the judgment should institute any executive proceed

police to greater diligence on some extraordinary

but ing to enforce collection of the judgment, such, for occasion, a special inducement may be necessary,

the offer of a reward in most cases is an absolute instance, as issuing execution, or instituting proceedings supplementary to execution, then it would be injury. It demoralizes the officer by causing him to

neglect his general duties and devote his attention to proper for the defendant to make a motion (not for a general stay of all proceedings on the judgment, but)

those particular matters in which he may chance for an order vacating or setting aside such executive

to receive extra compensation, and when the reward proceeding, on the ground that, as against such pro

is contingent upon the conviction of some person,

often leads him to intrude upon the province of the ceeding "he had no other remedy,” and the motion, to that extent, would be granted, with costs, upon prosecuting attorney and court, and, sometimes, upon the theory that the discharge is, itself, a stay of any

that of the prisoner's counsel. The offer of a reward, executive proceeding to enforce collection of the payable in the event of conviction, should be forbidjudgment, and of which the plaintiff is bound to take

den as much as gambling or selling lottery tickets. notice at his peril. But in case the judgment creditor or any other creditor should commence an action

The recent fire in Chicago has taught the American at law or in equity, upon the judgment or upon any people a terrible lesson concerning the danger of buildother debt, cut off by the discharge, the only way in ing wooden cities. While our large towns have many which the bankrupt could avail himself of his dis- elegant and expensive structures, they have very few charge would be to plead it in bar according to the fire-proof ones, the pretended fire-proof buildings provisions of the thirty-fourth section of the act. But

But being for the most part humbugs. We think a little in no case is it proper or right for the bankrupt to legislation concerning the matter, if in the right direcask for, or for any court to grant, a general stay of tion, would do no harm. In places of over ten thouproceeding on judgments or debts, simply because

sand inhabitants, wooden buildings should not be the debtor has obtained a bankrupt's discharge; such allowed to be built; and in thickly built localities, an order, if of force, would prevent the commence

buildings over thirty feet in height should be required ment of an action, and if one should be commenced,

to be perfectly fire-proof. Besides this, the abortions would authorize a motion for its discontinuance, pretending to be mansard roofs, should be kept within while the thirty-fourth section clearly implies that limits, as to style and material. While private taste, such an action may be commenced, and the defend

as a rule, is entitled to exhibit itself as it pleases, it ant plead his discharge in bar of it.

should always be in subordination to public safety.

It is a questionable point whether further precauCURRENT TOPICS.

tions ought not to be taken to insure the responsiThere is prevalent among our people a notion that bility of insurance companies. Although in New the liberty of even the meanest individual is guarded York the statute requires a large deposit from both with exceeding care in this country. Perhaps it is, life and fire companies, yet how many of those who theoretically, but those familiar with the inside work then held fire policies felt on the evening of October ing of our public establishments know that very many 9th that the indemnity against loss was of any great things are done by the officials in charge that are value. To be sure, the fire in Chicago was unprecehardly in accordance with the supposed protecting care dented in modern times; but these unprecedented of the law. It is not uncommon to arrest a suspected events are getting to be very common. As our cities person and lock him up for some days, giving him no are daily growing more combustible, the pavements opportunity for a judicial hearing or access to his being of kindling wood, the sidewalks of tar, and the friends, and, while he is so deprived of justice and buildings fire-proof, and all very largely of pine timfriendly aid, subject him to severe cross-examinations, ber, it would be well to be certain that those who, and endeavor to obtain from him by threats, promises for a consideration, take upon themselves the risk of and false representations, a sort of admission of his all this will be able, beyond all reasonable probability, own or some other's connection with the offensc to make good their promises when the time of need charged. We believe the ends of justice would be

comes.

« AnteriorContinuar »