The Sun.
London, England, 1849-05-07 00:00:00

BANKRUPT LAW CONSOLIDA-

TION BILL.

(From :11..1 Law Re,:iete.)
This Bill has been amended by the select Committee
to whom it was referred, and we believe has now, in its
amended shape., the concurrence o, the Lord Chancvller,
and will consequently, in all probV),ility, shortly become
14w.

Lord Brougbam found the Chancellor diff,red with
him on several of the I repositions in his original mea-
sure. He found him opposed, Ist, to the title of Judge;
2i, to the proposed Court of Appeal; and :3d, to the very
important chaptt r whereby it was proposed to give to the
Court of Bankruptcy a jurisdicti. n to distribute tt.e es-
tates of deceaeed debtors, whether traders or nen•tr2ders.
It consequently became necessary for his Lordship to
consider whether ho would insist on these matters,
whether he would debate them in Committee of the whole
Hew°, or at once 3 field to the wishes of the Chancellor,
and thereby cnsare the other parts of his measure, as to
which, substantially, the Chancellor and he are agreed;
and, under all the circumstances, we are of opinion his
Lordship has done wisely in adopting the latter course.
The two first points en which the Chancellor was
opposed to Lord Brougham were matters of very little
moment; the first (the title of Judge) cf absolutely none;
end the second (the proposed Court of Appeal) was a
propositior, the propriety and expediency of which, at
least, might very well bo questioned, seeing the conflict
en evidence en the subject, and the very trifling number
of the app-ale from decisions of the commissioners. The
third (the chapter relating
,to the distribution of the
estates of el, cealcd debtors) was a matter of much im-
portance, and, to a considerable extent, supported by the
evidence taken before the Select Committee. But here,
also, as we have already said; we consider bird Brougham
;.o have done well in giving way, more particularly, as
regarding this, it is undirstood his Lordship has obtained
from the Chancellor the, promise of some mode of facili-
tating creditors' suits, retaining the jurisdiction in the
(Jew t of Chancery.
.L )rd Brougham's amended Bill still contains much
that is very desirable, and greatly needed; indeed the
consolidation of the different Statutes relating to Bank-
riiptcy would alone render it a most important measure.
As the 13111 stands, it amends, methodises aud, con oh--
dates those statutes—it provides for the reduction of the
number of London commissioners from six to four,
thereby eft sting a considerable sitelng—it gives to the
Commissioners original jurisdiction in all matters in
'bankruptcy—it abolishes the fiat, and introduces a more
simple mode of procedure—it gives a power to examine
trader debtors on summons—it simplifies the present
Acts of Bankruptcy, and creates aditional ones—it more
effectually protects creditors against fraudulent prefer-
ences and secret transfers, protecting at the same time
all bona fide transactions—it affords increased facilities
for arrangements between debtors and creditors, extend-
ing them to traders, this privilege having heretofore been
confined to non-traders—and it confers a penal jurisdic-
tion for certain specified commercial offences; and, with
respect to others, gives the court power to order pay-
ment of the costs of prosecutions cut of a certain fund.
The-se are the wore important parts of the measure, and
several of them were proposed in a Bill introduced by his
Lordship in March, 1847. By substituting a petition to
the court in lieu of the fiat now issued by the Lord Chen-
_cellor, and giving to the commissioners original jurisdic-
tion in all matters, much use 1 ss delay and unnecessary
expense is got rid of. We have efficient commissioners—
man universally respected, and in every way competent
to the discharge of their duties—men enjoying the con-
fidecce and respect of the commercial community, and
engaged daily in the administration of the Bankrupt
Laws, and daily dealing with and deciding questions of
immense magnitude, and yet constituted as the Bank-
ruptcy Courts at present are, there arc matters trifling in
importance, and, in many cases, of mere form, on which
they have no rower to decide, and as to which the suitor
is compelled to.go to the new substitute for the Court of
Review—namely to the Vice-Chancellor appointed to sit
in Bankruptcy. This, also, was a matter proposed to be
remedied by Lord Brougham's Bill of March, 18 17; but
his Lordship then only accomplished the transfer of the
insolvent jurisdiction to the Insolvent Debtors' Court
and the County Courts, the abolishing of the circuits of
the Insolvent Court Commissioners, and the reduction
of certain of the cemmissionerships in both courts.
.What we have been stating, however, is very absurd.
But the absurdity of it is the least part of the affair—
ihe expense is a serious grievance, as may be shown in a
few words. Take, for instance, the case of an applica-
lien by a mortgage o for have to bid at the sale of the
mortgaged property. This is a matter of mere form,
at:d would be decided by the commissioner, acting in the
bankruptcy-, in five minutes. But the commissioner
has no power to do this; the mortgagee must apply to
the Vice-Chancellor; he must prepare and file his petition;
must make and file an affidavit or uffilavits in support of
it; must serve the assignees; and he must instruct counts( 1.
The matter then comes on fur hearing; it is unopposed;
but the etaignees of the bankrupt's estate must, never-
theless, appear also--must also instruct counsel; and
this farce, and others of a still more ridiculous nature,
are daily b. ing gone through ; and such was latterly,
for the most part, the business of the Court of Review,
and is DOW the sort of bankruptcy husiness transferred
to, and decided on by, his Honour Vice Chancellor
Knight Bruce. The appeal business—the business which
atone ought to come before the Vice-Ctsinczllcr siting
in Bankruptcy—amounts to next to nothing. A return
made to-the house of Lords, for the five years ending
11th November 1847, shows the average number of ap-
peals from all the commissioners (town and country) to
be under fifteen a year.
Another example, of a kind similar to the one
,just
given, is the application by a bankrupt trustee to prove
against his own estate—another, that of an equitable
mortgagee to be be proved such, and to have his account
taken. The commissioners have no power; the bank-
rupt' or mortgagee, must go to the Vice-Chancellor.
And a rather striking illustration of the absurdity of all
this, haKened not long ago. The mortgage was one of
leasehold premises, the rent under 100/. The mortgagee
had to present his petition to the Court of Review, to
support it by affidavit, to instruct counsel, &c., all in the
manner already described. The petition came on to be
heat d—the assignees did not oppose—they instructed
counsel to appear, and consent to any order the court
might think fit to make—and the Chief Judge, being
well advised, made the common order, finding the peti
tioner an equitable mortgagee, and referring the matter
to the commissioner acting in the Bankruptcy to take
the account. A more complete farce cannot be conceived.
But the costs to the parties exceeded 201, and the pro-
perty was subjected to an additional quarter's rent from
the delay consequent on the application; and the real
work—the taking the account—came back after all to
the commissioner. In the same bankruptcy the solicitor
for a legal mortgagee (with which, strange to say, the
commissioner is entrusted with power) made an applica-
tion to the commissioner (Commissioner Goulburn) to
Like his account, and make an order for sale. The
amount was 2,oool.—the account was taken, an order
made directing the sale, and the matter completed, in
less than half an hour, at an expense under :31.!
But the very first proceeding in bankruptcy—the fiat
—is an anomaly. At present, before a petitioning cre-
ditor, or a trader desirous of making himself bankrupt,
and delivering up his estate to be divided among his
creditors can proceed a single step in the Court of Bank-
ruptcy (a court, by the way, instituted for the very pur-
pose of hearing such matters), he must first go the Lord
Chancellor, and obtain what is called a fiat, to enable
him to prosecute his complaint, which is issued as a
matter of course, and altogether unnecessary; and
which, having been reported egainst by the Commis-
sioners of Ingeiry of 1840, ought long ago to have been
abolished. It is useless, and attended with unnecessary
trouble, expellee, and delay, and alter all, if, when the
fiat is obtained, there should, from any accident, happen
to be an error in it—an error of even the most trifling
nature—all the proceedings are stepped. The commis-
sioner has no power to correct it—ho cannot go on.
The petitioning creditor, or trader, must go to the Vice-
Chanctllor—must instruct counsel—obtain an order to
amend his fiat—and mud get that order confirmed by
the Lord Chancellor—and the amendment is only Made
by filing what aro called fresh docket papers (a new
affidavit and petition), the estate being in the meanwhile
endangered and liable to be swept away by judgment
creditors.

It has been said by certain opposers of Lord
Brougham's measure, that the proposal to give the Court
of Bankruptcy a power of imprisonment as a punishment
for certain specified commercial offences, in the manner
done by the Bill, is in effect an abolition of the trial by
jury. This is a great mistake. Chapter 10—the chapter
treating of offences against the law relating to bank-
ruptcy—leaves the punishment of matters deemed felony
and misdemeanour, and also of perjury, exactly where
it now stands (see Articles 314, 315, 316, and 317;; and
although Articles 319 and 320 give to the court a direct
power to punish by imprisonment for certain offences
therein kp:cified, this cannot be said to interfere with
trial by jury.; and those who allege that it does, alto-
gether forget both the present state of the law in this
relwcr, and the imperfections in it which the articles are
intended, and in our opinion are well calculated, to
remedy. This will appear by an examination of these
articles.