Popular Law-making: A study of the origin, history, and present tendencies of law-making by statuteStimson, Frederic Jesup
History
Popular Law-making: A study of the origin, history, and present tendencies of law-making by statute
Stimson, Frederic Jesup
Legislation -- United States
In matters of general business the usual lines of legislation have
been the ordinary ones found in English history. That is to say,
statutes of frauds, usury or interest laws, and other familiar
matters. The only tendency one can note is a broad range of
legislation devised in the interest of the debtor--not only liberal
insolvency laws now superseded by the national bankruptcy act, which
is still more liberal than the laws of the States preceding it, but
statutes restricting or delaying foreclosure of mortgages, statutes
exempting a substantial amount of property, implements of trade,
agricultural articles, goods, land, or even money, from the claims of
his creditors. The exemption of tools or implements of trade goes back
to Magna Charta, it will be remembered, but the exemption of other
articles is modern and American. There is probably, however, no
subject which is so apt to be let alone by our legislatures as that of
business law. Upon that subject, at least, they are fairly modest
and inclined to think that the laws of business are known better
by business men. Imprisonment for debt is, of course, absolutely
abolished everywhere, and in most States a woman is not subject to
personal arrest in civil process. The statutes prevailing throughout
the country, which give special preference to claims for wages or even
for material furnished by "material men," have already been noted. It
may be broadly stated that the presumption is that such claims are
everywhere a preferred debt to be paid out of the estate of the
insolvent, living or dead, in preference to all claims except taxes.
The security of mortgages is very generally impaired by legislation
confining the creditor to only one remedy and delaying his possession
under foreclosure. That is to say, in far Western States generally, he
cannot take the land or other security, and at the same time sue the
debtor in an action for debt for the amount due, or the deficiency.
This, of course, makes of a mortgage a simple pledge. Moreover, with
the practice of delaying possession under foreclosure, appointing
receivers in the interest of the debtor, etc., he is in many States
so delayed in getting possession of his security that by the time he
acquires it he will find it burdened with overdue taxes and in a state
of general dilapidation. We have already alluded to the practice in
California of compelling the executor of a mortgage to submit
himself to the jurisdiction of the local public administrator, which
practically results in a sequestration of a considerable portion of
the property. For all these reasons, many conservative lawyers in the
East, at least, would not permit their clients to invest their money
in mortgages in California, Minnesota, Washington, or the other States
indulging in such legislation, and partly for this reason the rate of
interest prevailing in mortgages is very much higher in the far West
than it is in States east of the Missouri River.
Public-domain text, read in full here on John Shaqi.
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