Wednesday, July 30, 2014

A Critique of Murray Rothbard on the Origins and Legal Basis of Fractional Reserve Banking

A very good post is available here on a blog called “Economicreflections”:
“The Legal Nature of the Relationship between Banker and Customer in Old English Law,” Economicreflections, 30 July, 2014.
The author goes into detail on the legal issues of mutuum and bailment, and the lack of evidence for Rothbard’s views.

The author makes a crucial point here about the early cases in the 19th century cited by Rothbard, but largely misunderstood by him:
“Why, then, do the first cases cited in support of the proposition that a banker’s obligation to his customer is a debt (and has nothing to do with bailment) all date from the 19th century? A first, simple, explanation is that it is very difficult to find case law in support of a proposition that is universally accepted and regarded as self-evident. If that is the case, no-one bothers to challenge it and the courts have no occasion to rule on it. I would contend that this was the case of the proposition according to which a banker’s obligation to his customer is a debt and does not result from a bailment. Indeed, a closer analysis of the three 19th century cases that seem to have definitely resolved this matter reveals that, at best, there was only an indirect link between that proposition and what was at issue in those cases.”
“The Legal Nature of the Relationship between Banker and Customer in Old English Law,” Economicreflections, 30 July, 2014.
Some of the major 19th century cases are listed here:
(1) Carr v. Carr (1811);

(2) Devaynes v. Noble (1816);

(3) Sims v. Bond (1833);

(4) Parker v. Merchant (1843);

(5) Foley v. Hill and Others (1848).
I have discussed Carr v. Carr here, and Foley v. Hill here.

The author has a good discussion of Carr v. Carr (1811), Devaynes v. Noble (1816), and Foley v. Hill (1848).

The author also points out that the distinction between mutuum and bailment (depositum regulare) was already known and described as part of English law by the 13th century English legal writer Bracton (in volume 2 of De Legibus et Consuetudinibus Angliae).

One can add that Ranulf de Glanvill’s Tractatus de Legibus et Consuetudinibus Regni Angliae (c. 1188) also describes contracts of English law in language and concepts taken from Roman law:
“Debt* may arise either upon a Lending (mutuum), or a Sale (venditio), or a Borrowing (commodatum), or a Letting out (locatio), or a Deposit (depositum), or from some other just cause inducing a Debt.

A Debt of the first description arises, when one person entrusts another with any such thing as consists in Number, or Weight, or Measure. When one person so entrusts another, if he should receive back more than he lent, he commits Usury;” (Glanville 1900: 199–200).

* Glanvill seems to be using the word “debt” here in a broader legal sense of “obligation,” not just its narrow sense – LK.
So Glanville already in the 12th century also knows the mutuum and bailment contracts.

One minor quibble concerns the legal contract discussed by the author here:
“For example, if I knock on your door to borrow a cup of sugar for the cake I’m baking, I undertake to return to you a cup of sugar but, obviously, not the sugar itself that was lent (which will end up in my cake!). If I also borrow the cup containing the sugar, this will be a bailment, provided I undertake to return to you the very same cup.”
“The Legal Nature of the Relationship between Banker and Customer in Old English Law,” Economicreflections, 30 July, 2014.
I would suggest that if the cup is still the property of the person who lent it, this is better understood as what the Romans called commodatum (or a gratuitous “loan for use”), not bailment.

BIBLIOGRAPHY
Glanville, Ranulf de. 1900. A Translation of Glanville (trans. John Beames). J. Byrne & Co., Washington, D.C.

Tuesday, July 29, 2014

Foley versus Hill and the History of Fractional Reserve Banking

The British court case Foley versus Hill is another case relevant to the history of fractional reserve banking.

Here is the relevant record:
“FOLEY V. HILL and Others.

[#399]
1844: March 1, 14, 15.
In the case of a legal demand, a Court of Equity acts in obedience, and not merely by analogy, to the Statute of Limitations.
A banking firm, who, on opening an account with a customer, had agreed to allow him interest at 3 per cent on the balances which should from time to time be standing to his credit, set up the Statute of Limitations as a defence to a bill filed against them, by the customer, for an account. The account, as it stood in the bankers’ book, showed a considerable balance due to the Plaintiff, but there being no item in it, or evidence of any transaction connected with it, of a date within six years prior to the filing of the bill, nor any suggestion in the bill, that the bankers were bound, by the agreement or otherwise, to have actually entered the interest as it became due to the credit of the customer in the account, or that they had omitted so to do with a fraudulent intent, the defence was allowed to prevail.
An account between a banker and his customer, consisting of three items only and interest, held not to be a proper subject for a bill in equity.

The Defendants in the year 1829 carried on the business of bankers at Stourbridge, under the firm of Hill & Co. In the year 1834, the Defendant, Hill, retired from the business, which was thenceforth carried on by the other two Defendants under the firm of Bate and Robins.

The bill, which was filed on the 27th of January 1838, stated that, in the month of April 1829, the Plaintiff opened an account with Messrs. Hill and Co., and on the same day paid the sum of 6117l. 10s. into the bank, for which they sent him a receipt inclosed in a letter, in which they agreed to allow him interest at 3 per cent, per annum upon the balances from time to time in their hands. That at the time when that account was opened the Plaintiff and one Sir Edward Scott, who was his partner in working some collieries, kept a joint account at the same bank, which account was distinct from the Plaintiff’s private account, and related exclusively to the transactions of the colliery; and that between the month of April 1829 and the month of August 1834, when the joint account was closed, the agent of the collieries drew cheques half yearly against the joint account in favour of the Plaintiff in respect of his share of the profits of the colliery; and that the amounts of such cheques were on those occasions, carried to the credit of the Plaintiff’s private account. The bill further stated that during the same period Messrs. Hill and Co. paid various sums on account of the Plaintiff, which were placed to the debit of his private account; and that they had, in pursuance of their agreement, from time to time entered in their books, to the credit of the plaintiff on his private account interest, at 3 per cent upon the balance from time to time due to him. The bill then charged that the private account was still open and unsettled, and that it consisted of numerous items on each side, and could not be fairly adjusted except under the decree of a court of equity; and, after suggesting that the Defendants intended to rely on the Statute of Limitations, it contained various charges to the effect that the Defendants had, by correspondence between themselves and otherwise, recognized the private account as an open account, and the balance due thereon to the Plaintiff as a subsisting debt; but it contained no express charge that it was the duty of the bankers under the agreement to have regularly entered interest to the credit of the private account, or that if they had omitted to do so it was with a fraudulent intent.

The Defendants by their answer admitted the agreement to allow 3 per cent, on the balances from time to time in their hands on the Plaintiff’s private account; but they stated (and so it appeared from their books) that the only items of which that account consisted were the original deposit of 6117l. 10s. on the credit side, and two sums of 1700l. and 2000l. on the debit side, both being payments made in the year 1830; and that, though previously to and down to the 35th of December 1831, interest at 3 per cent on the balances from time to time due to the Plaintiff had been calculated and placed in the interest column of his private account in their books; the amount of Such interest had never been actually entered to the credit of such account, and that since the 25th of December 1831 no interest had ever been even calculated.

With respect to the cheques drawn upon the joint account, and the amount of which were alleged by the bill to have been placed to the Plaintiff’s credit in his private account, the Defendants, in a passage of their answer, which was read by the Plaintiff as evidence, stated that those cheques had always been paid to the agent who presented them, either in cash, or, when so required by him, by bills Upon the London correspondents of the bank, payable to the Plaintiff or to his London banker’s and that the amounts of such cheques were placed to the debit of the joint account; but that none of them had ever been entered in the private account, such transactions being, as the Defendants insisted, distinct, and independent transactions having no connection with the private account.

The Defendants admitted that the private account had never been balanced or settled with the Plaintiff; but they submitted whether, under the circumstances above stated, such account still remained open and unsettled, and they claimed the benefit of the stat 21 Jac. 1. c. 16., insisting that they had never, within six years before the filing of the bill, promised to pay the Plaintiff balance of such account, or to come to any account with him in respect thereof.

The only evidence adduced on the part of the Plaintiff of an express acknowledgment by the Defendants of the subsistence of the private account within the six years, consisted of two letters, written by one of the Defendants to another, but which the Lord Chancellor, as will be seen from his judgment, did not consider to amount to such acknowledgment.

On the hearing of the cause before the Vice-Chancellor of England, his Honor made the usual decree for an account, from which decree the Defendants appealed.

The appeal now coming on to be heard,

Mr. Stuart and Mr. G. Russell, for the Plaintiff, argued that the relation between a banker and his customer was not simply that of a debtor and creditor, but a confidential relation, which imposed on the former an obligation to keep the account according to the agreement made between the parties when the account was opened; and that the Defendants being in this case under an express engagement to allow interest at 3 per cent, on the balances from time to time in their hands, it was their duty to have entered such interest regularly to the credit of the Plaintiff’s account, which would have ousted the plea of the statute; and that to allow them, under such circumstances, to avail themselves of the statutes, would be to enable them to take advantage of their own wrong. That, they said, was the ground on which the Vice-Chancellor had expressly rested his decision; and they relied on the doctrine laid down by Sir Anthony Hart in Sterndale v. Hankinson, (a) ‘that pleas of the statute were allowed in Courts of Equity by analogy only, and to prevent stale demands; and that where the circumstances of a case were such as to make it against conscience to apply the rule founded on that analogy, the Court would not enforce it.’

Independently, however, of this point, they contended that the bill transactions which had arisen out of some of the cheques drawn in favour of the Plaintiff against the joint account, and several of which were admitted to have taken place within the six years, were private dealings between the Plaintiff and the bank, and ought to have been entered as such in his private account.

Mr. Bethell and Mr. K. Parker, for the Defendants, as to the relation between a banker and his customer, cited Devalues v. Noble ;(a) and, as to pleas of the statute in Courts of Equity, Hovenden v. Lord Annesley ;(b) and they insisted that, after leaving out of the case the transactions connected with the joint account, which they contended were wholly independent of the private account, the latter was no longer a proper subject for a suit in equity; as all that was required was a computation of what was due for principal and interest on the sum of 6117l. 10s., after deducting the two sums of 1700l. and 2000l, Dinwiddic v. Bailey ;(c) King v. Rossett.(d)

Mr. Stuart, in reply.

THE LORD CHANCELLOR.—The Defendants in this case car¬ried on the business of bankers at Stourbridge, under the firm of Hill and Co. The Plaintiff Foley deposited with them, in the year 1829, the sum of 6117l. 10s., and received from them the usual receipt; and in a note inclosing the receipt, they engaged to allow him 3 per cent, interest on the balances, which should from time exist in his favour on the account. Foley subsequently drew two cheques, at different times, for 1700l. and 2000l. upon this account. The latter of these cheques was drawn in July 1830. The Defendants en¬tered these payments, according to the usual custom, in a ledger, and also calculated interest on the balances up to December 1831. From that time there has been no payment in respect of the account; no entry in the books, no acknowledgment of debt. The Defendants, under these circumstances, set up the Statute of Limitations. And the question is, whether that is a valid de¬fence to the suit.

It is quite clear, that a banker is not to be considered a trustee for his customer in the legal sense of the term. Money advanced by a customer to a banker is a loan, and constitutes a debt. If it were necessary to refer to authorities in support of this propo¬sition, I might refer to Sims v. Bond,(a)in the Queen’s Bench, where it was laid down, that sums paid to the credit of a custo¬mer with his banker, though usually called deposits, are in truth loans to the banker. And that is in accordance with the doctrine of Sir Grant in Devaynes v. Noble. He says, ‘There is a fallacy in likening the dealings of a banker to the case of a deposit, to which, in legal effect, they have no sort of resemblance: money paid into a banker’s, becomes immediately a part of his general assets; and he is merely a debtor for the amount.’ And he lays down the same doctrine in Carr v. Carr.(b) Here, there was a loan by Foley to the defendants, to be repaid with interest at 3 per cent.: that was the simple transaction between them, and if this were a case at law, a plea of the Statute would be a sufficient answer, unless there were some special circumstances to take the case out of the Statute; and the only question therefore is, whe¬ther that defence is to have the same effect in a court of equity.

Now, the doctrine on that point is clearly and satisfactorily stated by Lord Redesdale in the case referred to at the bar, of Hovenden v. Lord Annesley.{c) He says, ‘it is a mistake in point of language to say, that Courts of Equity act merely by analogy to the statute; they act in obedience to it—that is, as as [sic] he afterwards explains himself, ‘upon all legal titles and le¬gal demands’—(and this, it will be observed, is a legal demand.) ‘I think,’ he adds, ‘the statute must be taken virtually to in¬clude courts of equity: for when the legislature, by statute, limi¬ted the proceedings at law, in certain cases, and provided no ex¬press limitations for proceedings in equity, it must be taken to have contemplated that equity followed the law; and, therefore, it must be taken to have virtually enacted in the same cases a limitation for courts of equity also.’ If, therefore, the Statute would in this case be a good defence at law, (I am now on the general question without reference to any specialty,) it constitutes a sufficient answer here: and the only remaining question is, whether there are any special circumstances to take the present case out of the statute.

[His Lordship then adverted to the letters above referred to, and to the transactions connected with the joint or colliery account; and, after stating his opinion, that neither the one nor the other amounted to an acknowledgment that the debt was due or the account open, he proceeded as follows:—]

It is further said, however, that it was the duty of the Defendants, as bankers, or by reason of the mode in which they usually conducted their business, to have entered the interest half-yearly in their books, on the balance remaining due: that if such entries had been regularly made, the case would have been taken out of the statute; and that having neglected to do this, they ought not to be allowed to profit from their neglect by setting up the Statute of Limitations as a defence founded on their own omission. But no such question is raised by the bill, no such equity is insisted upon or suggested. The bill is confined entirely to the statement of subsequent transactions for the purpose of taking the case out of the statute.

But, assuming it to have been the duty of the bankers to keep the account between them and the Plaintiff, and that the neglect of this duty had been made matter of complaint in the bill, what is there to shew that it was their duty to keep the account in any particular form? In the account produced, the interest is calculated upon the balance of the principal money due after the last payment, and for a year from that time. The balance remaining afterwards unchanged, the subsequent interest would be a matter of easy calculation whenever it might be necessary to make it for any purpose.

If it is meant to be said, that the Defendants ceased to enter the interest for a fraudulent purpose, that should have been made matter of charge in the Plaintiff’s bill; but there is no such suggestion, the only facts relied upon to meet the defence on the statute being, as I have already stated, the subsequent transactions between the parties.

I think, therefore, the Statute of Limitations is a sufficient defence, as the record is at present constituted.

But there is another point which is of great importance to the practice of the Court. This bill is filed for an account: that is the sole object of it. Now the account consists of three items only; one on one side and two on the other. I am of opinion that such an account as that is not a proper subject for a bill in this Court: it is a case for an action for money had and received. A party has no right to come here upon a simple transaction of this kind, when justice may be administered in a more simple way and at less expense in a court of law. When this objection was made before the Vice-Chancellor, he stated that two actions would have been necessary in a court of law, because one partner had left the firm; but that was a misapprehension: for it appears that Hill was a partner up to the date of the last transaction; and if that fact had been present to the mind of the Vice-Chancellor, he would, probably, on principle, have come to the same conclusion upon the last point that I have.

The bill, therefore ought to be dismissed, and, on the last ground, with costs.
(Phillips 1848: 398–407).
As we can see, the primary issue in this case appears to have been the relevance of the “statute of limitations” to the defence of the defendants in the case.

With respect to the nature of the banking contract between client and banker, the important passage is here:
“It is quite clear, that a banker is not to be considered a trustee for his customer in the legal sense of the term. Money advanced by a customer to a banker is a loan, and constitutes a debt. If it were necessary to refer to authorities in support of this propo¬sition, I might refer to Sims v. Bond,(a)in the Queen’s Bench, where it was laid down, that sums paid to the credit of a custo¬mer with his banker, though usually called deposits, are in truth loans to the banker. And that is in accordance with the doctrine of Sir Grant in Devaynes v. Noble. He says, ‘There is a fallacy in likening the dealings of a banker to the case of a deposit, to which, in legal effect, they have no sort of resemblance: money paid into a banker’s, becomes immediately a part of his general assets; and he is merely a debtor for the amount.’ And he lays down the same doctrine in Carr v. Carr.(b)
This merely confirms what had been accepted in the Carr versus Carr case, and even in that case there is no evidence that the judge in the case did anything but recognise what had been accepted legal and business practice.

BIBLIOGRAPHY
Phillips, Thomas Jodrell. 1848. Reports of Cases Argued and Determined in the High Court of Chancery during the Time of Lord Chancellor Lyndhurst: With a Few during the Time of Lord Chancellor Cottenham. Vol. I. 1841–1847. Banks, Gould and Co. New York.