The Sun.
London, England, 1860-03-16 00:00:00

eree ea. 1,3 enpioyeci here. e'en enoireous aineedet of saving
and convenience, he had often said, would result, if print-
ing were substituted for the mediaeval barbarism of written
parchments in many cases. (Hoar.) One fourth part of
the existing litigation would be entirely annihilated, if the
contents of deeds and documents could be more readily and
correctly ascertained, as might be the result of using the
printing-press, instead of the present cumbrous and expen-
sive mode of producing them. He proposed, then, that in
accordance with the practice of the great railway and other
companies, the creditors' assignee should render quarterly
accounts of the whole of his receipts and payments, and of
all the circumstances of the estate ; that the quarterly ac-
count should be audited and examined by the official assig-
nee ; that immediate recourse should be lead to the registrar
or judge, if any question arose thereon ; that the account
should be vouched byethe creditor's assignee, and the official
assignee should be charged with the duty of seeing that all
the moneys which had come into the hands of the creditors'
assignee were faithfully paid over into the bank ; and he
then proposed that a printed copy of this account, in the
form of a balance-sheet of the bankrupt's estate, should be
sent to every creditor. It was already provided that, when
the creditors had been ascertained, a printed list of the cre-
ditors should be sent to each creditor ; and within three
months after the bankruptcy each creditor would also get a
printed account of the administration of the estate, with-
out having to employ an attorney, or to travel from his own
home. (Hear, hear.) In this way the creditors' assig-
nee would be kept in check by the official assignee, and
the official assignee, having to discharge a very important
duty, would also be kept in check, and the creditors them-
selves would receive, by these printed balance-sheets, a se-
curity for the faithful management of the estate. As for the
emoluments of the official assignees, they were not to suffer
materially by this change. It appeared from a return that
the average of those emoluments was £1,500 a year in Lon-
don, and £1,200 in the country. He therefore proposed,
under the recommendations of the commission of 1854,
to give to each official assignee, independently of the allow-
ance for clerks and other expenses, a certain annual salary
of £BOO, and give power to the judge to augment that salary,
according to the work done, until it attained the maximum
of £1,500 a year. He had no doubt that the quantity of
business, from the number of cases now disposed of by
trust assignments, which would come into the court, would
be so considerable that every official assignee might safely
reckon on this income of £1,500 a year, because his duties
would be sufficiently onerous to justify that remuneration.
Power would, however, be given to the creditors, in case
the estate should appear to them to be one that could better
be administered in a more simple and economical form, to
come to a decision for that purpose. Wherever an estate had
been ascertained not to exceed the value of £l,OOO, a cer •
tain majority of the creditors might, if they thought it right
to do so, transfer the administration of it to the County
Court ; though, if he succeeded in reducing as much as he
hoped, the fees in the Court of Bankruptcy, the power
would, he thought, seldom be exercised. But he proposed
that all the very small estates, not exceeding £3OO in their
assets, would at once be relegated, if the creditors desired, to
the County Court, since th registrar and treasurer, the
County Court officers, could amply perform all the func-
tions that would otherwise have to be discharged by the
official assignee and registrar of the Bankruptcy Court.
One great alteration of the law which he proposed was
this : In the law of bankruptcy, at present, there was
a strange mixture of the civil and the criminal
law. There was a criminal jurisdiction of the most sin-
gular kind. It treated the bankrupt as a criminal with-
out any accurately defined offence, and with no-
thing more than a description of moral misconduct, extra-
vagance, recklessness, or great want of prudence, all these
being subjects of the most indefinite and elastic kind, on
which no two men could be found to agree. (Hear, hear.)
The administration of this penal la,w was therefore marked
by the most painful uncertainty, inconsistency, and contra-
diction. The classification of certificates, as granted by the
Commissioners in London, showed a remarkable variety in
their determinations. Mr. Commissioner Evans, out of
479 applications for certificates during five years, only
granted 17 first-class certificates, or but lin 28. In the
same time, Mr. Commissioner Fonblanque, out of 453 ap-
plications, granted 31 first-class, or 1 in 14, while Mr. Com-
missioner Earle, out of 628 applications, granted 161 first-
class, or lin less than 4 cases. (Hear.) Now, what an in.
consistency appeared in this I Of the other two Commis-
sioners in London, the one granted a first-class certificate
once in every 10 cases, and tho other once in 11. If he con-
trasted the proceedings of the courts in the country with
the decisions of the judges of appeal in bankruptcy upon
them, he found still more painful contradictions. The whole
system of the classification of certificates, which was a doc-
trinaire principle introduced into the bill of 1849, was in-
' jurious in another point of view. It led to immense litiga-
tion and discussion when the bankrupt applied for his cer-
tificate. Then occurred those long examinations which
were reported in the daily papers, and hence those appeals
afterwards to the court above, with those continual reversals
of first decisions which had been observed so much. He
thought it was impossible to draw the linebetween impunity
for the debtor and criminal punishment by the criminal
law. Let the criminal laws in regard to any fraudulent
contracting of debt be made as stringent and severe as
you pleased, but let there not be something sat up be-
tween the two, which was neither law nor certain justice,
but which was a singular discretionary power, applied
• in a very indefinite manner, which reminded one of the old
' reproach that the bankrupt's conduct was measured and
determined according to the size of the commissioner's
' foot. (Hear, hear, and a laugh.) He proposed, therefore,
to lay down very strict rules with regard to fraudulent con-
duct in trade, and to leave those rules to be applied by a
court of criminal jurisdiction, but to give to the commis-
sioner where the bankrupt was prosecuted the power of
' suspending the discharge of the bankrupt, making the sus-
pension of the discharge co-existent with the amount of
the punishment inflicted on the bankrupt in respect of his
offence. He would not advert to some minor provisions of
the bill and alterations of the present system. It was rather
in deference to the opinions of others that he had introduced
a series of clauses which might be called the death clauses,
providing that where the debtor, having committed an act
of bankruptcy, died without having been made a bankrupt,
the creditors, after his death, should have the same power
of administering his estate in bankruptcy which they would
have had if he had remained alive. These clauses were
originally devised before the great change that was recently
' made in the ad ministration of the estates of deceased debtors
in the Court of Chancery. The alterations which had been
made in the operation of that tribunal in this respect would,
in a great measure, answer the same purpose as these
clauses in the bill which he now proposed. He believed_
the estate of a deceased debtor might now be administered
in the Court of Chancery in the simplest and most expedi-
tious way, and at an amount of cost very little exceeding 5
per cent. of the amount of the estate. In fact, one of the
eminent judges in the Court of Chancery had once said
that he would lay a Wager that any estate could now be ad-
ministered in Chancery at a less cost than it could possibly
be done out of court by the agency of private hands ; and he
(the At torneyeGeneral) believed that there was a great deal
of foundation for that statement. He did not then him-
self consider that these death clauses would practically
be of much utility. That was a matter, however, which
he would leave to the investigation of the house in
committee, as well as other points for the improvement
of the bill. He treeted they would be able to estab-
lish by this
means a simple, uniform, expeditious and come-
mical system. He would ask the house to take the second
reading of the bill, on which he did not expect a very long
discussion, some day before Easter, in order that the com-
mittee upon it, in which a great deal of laborious attention
to details would be requisite, might be fixed as soon after
Easter as possible, or else the bill would be in danger of not
passing at all, unless it got into the upper house by the be-
ginning of June. It might occur to some hon. gentlemen, as
a great omission in the bill, compared with former measures,
that it did not advert to the winding up of joint-stock com-
panies. That matter had been left out here because it formed
the subject of a very comprehensive measure, which was in-
tended to accompany this bill, and which had already
passed the House of Lords and come down to that house;
and he' intended to move the second reading of it upon an
early dav in the next week. He now moved for leave to
bring infAlle bill. (Cheers.)
Sir F, KELLY congratulated the b_eeese upon this long-
desired measure, which had at length been brought forward.
It would not become him to enter at length upon the consi-
deration of the bill, but he would just call the attention of
the house and of his hon. and learned friend, to a few
points which seemed to deserve attention. It was with great
satisfaction he heard that it was intended to sweep away the
whole present system of courts of bankruptcy—(hear)—but
whilst expressing his entire concurrence in the abolition of
the metropolitan court, he would remind his hon. and learned
friend of the great difficulty there was in carrying a some-
what analogous measure for the abolition of the Ecclesias-
tical Court and in the establishment of a Probate Court,
for which, indeed, they were mainly indebted to the Attor-
ney-General. (Cheers.) For four successive years the
measure was before Parliament in one shape or another,
and he now warned the Government against attempting to
pass any bill whic'a would bind the new court of justice to
administer a separate branch of the law without intro-
ducing into it the system of common law procedure.
He urged the expediency, not to say the necessity, that
existed that the new court should have the power of exam-
ining viva coos, of examining in open court, of trial by jury
when such a course was desirable, and of formal reports of
the proceedings of the court, so that the country might be
satisfied the tribunal possessed the double jurisdiction of a
court of equity and of common law. With these he doubted
not but the scheme of the Government would, with suit •
able machinery, he valuable and effective—and be in a great
commercial country a most desirable improvement in our
mercantile laws. The bill would destroy all distinctions
between trader and non-trader, and one of:his (Sir F.
Kelly's) great wishes on this subject was, that the estates
of insolvent persons might ho administered to the satisfac-
tion of creditors, in many, perhaps, in most cases, without
resort to the Court of Bankruptcy at all. His hon. and
learned friend did not, he presumed, intend to abolish the
office of official assignee, hut to confer upon him an impor-
tant position in all cases, if he rightly understood, whether
in voluntary liquidation or in bankruptcy. Ho believed he
rightly expressed the meaning of the Attorney-General.
The ATTORNEY-GENERAL explained. The official
assignee would represent the estate until the creditors' as
signer was appointed; then he would give way to the cre
ditors' assignee in receiving and auditing the creditors'
accounts.
Sir F. KELLY observed that the more he considered the
cases either where the estate was to be managed, or where
there had been bankruptcy, not a transfer to voluntary
liquidation or where there was no bankruptcy at all, but
where the creditors at a meeting resolved upon liquida-
tion, and where the Court of Bankruptcy would not, ex-
cept in case of necessity, be called in at all, the more he
became convinced of the absolute necessity there was of
da flatrodni g env eer yw
afacility
ttoo
hweianrdinthgatupt2ovoolouontaaryyealirquiit-
used to be
to £45,000) paid out of debtors,' estates, paid
as pensions persona who had held certain office
35 years ago, was about to be transferred to the Conso-
lidated Fund ; for there was no more justice or equity
in taking such money out of the pockets of creditors than
' there was in burdening it upon the estate of any private
gentleman. (Hear.) This had been a most flagrant abuse.,
and its proposed abolition was highly creditable to the Go-
vernment. He believed this would be the beginning of a system of economy which every man interested in the mer-
cantile affairs of the country would hail with Very great
satisfaction. He could not very distinctly understand from
what his hon. and learned friend the Attorney-General
said, what connection there was between this bill and the
proposed winding-up bill for joint-stock companies. This
latter was no doubt a question of great difficulty and com-
plication, but he would venture to remind the house and
his hon. and learned friend that there was the greatest dan-
ger lest there might be any inconsistency in the provisions
of the two measures—for great inconsistencies were fatal
blots in legislation. It was essential that both measures
shonld be substantially the same, and that they should work
together in entire harmony one with the other. The hon.
and learned gentlemen concluded by again expressing his
satisfaction et the measure, to which he hoped to be able to
give an earnest and a hearty support. (Cheers.)
Mr. E. JAMES said that the'preparation of this measure
had no doubt required the most wlweariod industry, as well
as great courage in its intrOtteti". 'The subject was so
liZt'wreclet.ll9 Og which had taken place on tho sub.,
NO xritnco,te, that tty, ElnliAistroti9 p i 4.9 41,w of