The Sun.
London, England, 1832-03-13 00:00:00

CELLOR ON THE EXTENT OF THE NEW BANKRUPTCY

COURTS' JURISDICTION.

The LORD CHANCELLOR, on entering the Court, was
followed by his Honour the Vice-Chancellor, that they
might dispose in judgment of certain questions which were
sometime since argued before them both, arising out of the
new Bankrupt iket, and affecting the jurisdiction of his
Lordship's Court, his Honour's Court, and the new Bank-
ruptcy Court. O❑ taking their seats—
The. VICE-CHANCELLOR, began—There were (said his
Honour) several applications made in different matters in-
volving questions arising out of the Bankrupt Act which
was lately passed, argued before my Lord Chancellor and
myself- The first was in
EXT'A RTE BENSON IN THE MATTER OF DILWORTH.
It seems that in that case the VICE CHANCELLOR had
dismissed a petition, with costs, and that then an appeal
was presented to the LORI) CHANCELLOR, which c une
on to be heard on the 19th of August last, when it was
ordered to stand over generally. It remained over till the
12th of January, 1832. It this case it was insisted he•
fore us, by Sir EDWARD SUGDEN, for the respondents,
that the LORD CHANCELLOR was bound to hear that case,
am: that he only could hear it. Mr. BOOTH, on the other
side, insisted that the Court below had at least a concur-
rent jurisdiction, and that the petitioners had a right to
exercise their option, as to which Court they would
petition.

N BIPARTE THE LANCASTER CANAL COMPANY IN
THE MATTER OF DILWORTH.
It appeared that the petitioner prayed a sale of securities
and for leave to prove for a balance beyond what the secu-
ties might produce, and that the Vice-Chancellor granted
the prayer of the petition. Upon looking at
the petition of appeal which which was handed up to me
while the Master was in pi ogress, 1 observed that my
Lord Lyndhurst had affirmed the order, but not upon a
ground taken before myself: and the present petition to
the Lord Chancellor was presented for a rehearing of the
order made by Lord Lyndhurst. In that case also, Sir
Edward Sugden insisted that the petition ought to be
heard before the Lord Ch incellor, and that he alone could
hear it. There was another—
EXPARTE LANGSTON IN THE MATTER OF HARDY.
Where it appeared the Lord Chancellor had made
an order, referring certain matters to Commis-
sioners, and who had made a report. A petition
was presented in December last, praying that that
Report might be confirmed, and it seemed that the
petition was called on and marked as part heard before
the 11th of January, in the presence of Counsel on
both sides. It was stated that Mr. Jacob had appeared as
Counsel for the respondents, and that in his presence an
order was made adjourning the hearing of the petition ;
at the same time it did not appear that that sufferance on
his part could be taken as legitimately amounting to a
consent that the matter could be beard before the Lord
Chancellor, unless by the course of the Court it ought to
be so heard. I understood there are other petitions which
stand before my Lord Chancellor in this situation.
IN TILE MATTER OF JOINER, A BANKRUPT, ET PARTE

ELSEE, AND OTHERS.
A petition of appeal was presented from an order
made by the Vice-Chancellor, afterwards a petition of
cross-appeal was presented by the assignees, complain-
ing of a particular part of the order, which was not
brought before the notice of the Appellate Court, by the
original petition of appeal. Both the petition of appeal,
and the supplemental petition, were presented by
those who presented the original petition, which
petition prayed that his Lordship would make part
of the order asked for by the petition to the Court
below, but which was r,fuse,l by the Vice-Chancellor,
and which is made, therefore, a subject of appeal--asking,
however, for that order upon new facts—facts for the first
time brought forward by the supplemental petition. It
also appeared that in the same matter there had been a
petition presented, which prayed only consequential direc-
tions upon a portion of the order made by the Vice-Chan-
cellor, against which no p tition has been presented either
by the original or the cross appellants. Now, that is the
situation in which the matter stands, with respect
to which the questions now for decision have been
raised. The Act of the Ist and 2d of William IV., upon
which the questions have arisen in its preamble recites the
Act of the 6th of George IV. " That it is expedient to
provide
means of administering and distributing the effects
of bankrupts, and of determining the questions which,
from time to time arise, touching the same, other than are
provided by the said Act." And then, "to the end that
the rights as well of the bankrupts themselves as of their
creditors may be enforced with as little delay, expense,
and uncertainty as possible, be it enacted, that
it shall be lawful for his Majesty to create a
Court," and so on. Now its observance there that the
very intent which the Legislature declares itself to have
in view, is consolidated with that very sentence, which
enacts, that it shall be lawful for his Majesty to
create a second Court. Then it enacts that the
Ju'lges, or ten of them shall form a Court of Rrview,
and shall also have power to hear, determine, order, and
allow all such matters in bankruptcy as now usually are
or lawfully may be brought, by petition or otherwise, be-
tore the Lord Chancellor ; whether such matters may have
arisen before the Vice. Chancellor or elsewhere, except as

hereinafter mentioned. `Then by the thitd section it is
enacted, that all such matters to be determined in the said
Court of Review shall be brought on by way of petition,
motion, or special cage ; subject to an appeal to the Lord
Chancellor, on matters of law and equity, or on refusal
or admission of evidence only; such appeal to be in a
special case, and in no other mode whatsoever, except the
Lord Chancellor otherwise direct. Then it is provided
that the determination of the Judge, in the settlement

Of- the ease, shall be final ; and that all appeals to
the Lord Chancellor, by virtue of dm said Act, shall

be heard by the Lord Chancellor only, and not by any
other Judge of the High Court of Chancery. Now it
does appear to nib that it is sufficiently to be collected
from the enactment in the Ist section, coupled with what
is to be found in the 2d and Sd sec ions, that prima
facie the jurisdiction of the Lord Chancellor in matters of
bankruptcy is taken away—taken away except so far
as you can collect from the face of the Act itself,

that his Lordship's jurisdiction mot of necessity be pre-
served. It was said that where there has been an existing,

and which may be called a concurrent jurisdiction with the
one that is created by the enactment, that that cannot
be taken away by express words; and in support of this
proposition, the case of Agard v. Cavendish, in Saville's

Report, p. 15;4.
His HONOUR read the particulars of this case, and then
proceeded—
Whatever may be tke authority of that case, k seems
that a more liberal view of the law has been taken, since
in the case of " Kates v. Knight," and " Kates v. M !-
fish," in 3d Term Reports, page 442.
His Hoxoua stated the particulars of that case.
Therefore I conceive that this case, which is a subse-
quent case, and one that received a great deal of conside-
ration, does take away the authority which might other-
wise be due to Agard and Cavendish ; and that
which is now to be considered is, whether the
intention of the Legislature does sufficiently appear upon
the statute, where there are positive words, and no ne-
gative words. Now, in the present case, the Legislature
has declared the intent of all its enactments in the

Act. It v has stated the great intention to be
that the rights as well of bankrupts themselves as of their
creditors, may be enforced with as little delay and uncer-
tainty as possible—evidently implying that the jurisdic-
tion which existed down to the time of passing this Act

was a jurisdiction which was attended with more
expense and more delay and uncertainty than it was
thought convenient should be allowed to exist; and there-
fore to the intent that the law in this particular depart-
.

ment should be exercised with as little delay,
and as little expense, and as little uncertainty
as possible the new jurisdiction is constituted. Now it
does appear to me there would be an inconsistency in
saying that generally—that generally a jurisdiction
of the Lord Chancellor was intended by the Legis-
lature to remain after this new jurisdiction was created
and so clearly pointed out. I cannot but therefore think
that prima facie the jurisdiction of the Lord Chancellor
is taken away. But then it is not taken away further
than as you can judge from the words of the Act it is
taken away ; and when I find that this sitting on
the power of the Lord Chancellor Aet. presevs
the appelate jurisdiction from the new jurisdiction, it ap-

pears to me there would be a gross inconsistency in saying,
that with respect to matters which have received the
authority of the Lord Chancellor, they should be sub-
mitted to the viewing powers of the inferior Court. It
does appear to me, that inasmuch as there is this appellate
jurisdiction presented to the Lord Chancellor—that inas-
much as throughout the Act there is the originating power
reserved in the Lord Chancellor] as to the issuing of every
commission that in all cases where the Chancellor has decided
a point in bankruptcy, it is not competent fur the Court of
Review to call in question that decision. Well,
then, the next point will be, if that be a case of ex-
emption with respect to the decisions that
have been made by the Lord Chancellor what is
to be said about those decisions which have been
made by the Vice-Chancellor. Now, by the Act of Par-
liament constituting the office of Vice-Chancellor, the
Vice-Chancellor has power by express words, to determine
not only all matters which by the general course of the
Court the Vice-Chancellor might determ'ne, but all those
which by virtue of any subsequent Act might be com-
mitted to the Lord Chancellor. The words are full and dis-

tinct upon this point. (His Honour referred to the express
words of the Act. ) I apprehend, therefore, here is an express
Legislative enactment which puts on an equal footing the
order of the Vice-Chancellor made in bankruptcy with
an order made by the Lord Chancellor, except so
far as the Lord Chancellor shall interfere to
reverse an order made by the Vice-Chancellor
upon appeal. And it does appear to me that having re-
gard to the Vice-Chancellor's Act, the same exemption
from the operation of the Court of Review upon the
orders of the Lord Chancellor in a bankruptcy must
he extended to the orders of the Vice- Chancellor
in bankruptcy. The sum, therefore, of the opinion
which I humbly offer to his Lordship is, that in all
cases where the Lord Chancellor has made an order,
that order is irrevocable, except by his Lordship's
authority ; and that in aq cases it is irrevocable
where the order is made by the Vice-Chancellor except
by the Lord Chancellor's authority ; but that in all other
matters—in all matters where neither the Lord Chancellor's
nor the Vice-Chancellor's order has interfered the Court
of Review was intended to have jurisdiction. It appears
to me, therefore, in applying those general observa-
tions to the particular cases now under considera-
tion, the course that ought to be pursued is this—
that in ex-parte Benson, in the matter of Dilworth,
where the appeal has been presented to the Lord Chan-
cellor, the appeal should be retained by his Lordship.
That in the, case of ex-parte the Lancaster Canal
Company, in the matter of Dilworth, where my
Lord Lyndhurst affirmed the order of the Vice-
Chancellor, though upon a different ground and an ap-
peal is presented to reverse that order, that the appeal
should be heard by the Vice-Chancellor. That in ex-parte
Langstown in the matter of Hardy, where the Lord
Chancellor made on order referring certain matters to
Commissioners to report upon the proceedings taken for
the purpose of confirming that report, or opposing that re-
port, should be removed to the Court below, because I
apprehend that that case stands precisely in the
grcerhmoauan:
cpndeeslt—l petition
grounds—grounds
on:: appeal,
same situation as an original petition would.
Then with respect to those petitions that relate
to the matter of Joiner's bankruptcy, that the ori-
ginalmid the cross petition of appeal
should remain to be judged upon by his Lordship, but
that the supplementary petitions of appeal, upon new
nrhdebsayrndot
the
iew broughtorthigei original
o u rtpetition forwardof eoeffov
appeal,
pwp:
aaeln, Vid
ce-
Chancellor,
shalleo-t
by his Lordship; it being altogether a case precisely
the same as if there had been no appeal or cross
appeal, but that those facts for the first time had
by this petition been brought forward. Then with re-
spect to the last petition—that of Elsee—it appears to me
that inasmuch as it merely brings forward consequential
directions arising upon some other proceeding an.l is a
part of the original order, from which no appeal has been
presented, that that should be heard by the Court of Re-
view. That is my humble opinion.
The Loon CHANCELLOR said have considered this,
both at the argument and since, with great care, and have
bad the benefit of his Honour's assistance, who has attended
to all the questions with great attention and great pins ;
and I agree in the conclusion to which he has come on all
the points. It is not necessary, in affirming the juris-
diction of this Court, in respect of the appeals or re-
hearings of this Court, in matters disposed of either
by the Vice-Chancellor or this Court—it is not necessary
in affirming that, to disaffirm the decision of the Court
of Review. I agree, therefore, with his Honour, the Vice-
Chancellor, that that Court has not the jurisdiction nor
the power to overrule, nor to treat in any way with
matters that have been disposed of by the Chancel-
lor er the Vice-Chancellor. The words of the second sec-
tion are certainly extremely large, and would, taken strictly
and by themselves, include every thing, and give juris-
diction fo the Court of Review, in every possible way;
but that section is controled by the other words of
the Act, and the clear meaning of the Legislature.
With respect to the jurisdiction of the Court of Review
perspectively—that is to say, in matters arising hence-
forth under the fiat—l entirely agree with) his Honour,
in considering that the jurisdiction of this Court is
transferred to the Court of Review ; and that the
decision of the Court can subsequently only be con-
troled by an appeal in the way pointed out.
I have had much more doubt on the other point,
to which his Honour has addressed himself; but on the
whole I COME to the conclusion to which he has done.
In adopting the recommendation of his Honour, in which
I entirely concur, it is not necessary in dealing with the
first two cases to do more than to am the jurisdic-
tion of this Court. In ex-parte Langston in the
matter of Hardy, for the reasons stated by his Honour,
tlhaemC Court r Po
ifnliloenv itehwa t;
tlhteh
if
nu
kr tahl eps
or t
har ot che eisdHi n should
Honour
ur
has
taken
to
the sound distinction in the matter of Joiner, and on the
whole, I adopt The Sordc:Toia-Grlmahat. then supposed, that with re-
commendation.and entirely contour in his Honour's re-
gard to such matters as the Court had decided it
had jurisdiction in, they would find their way again into
his Lordship's paper.
His Loausuir directed that they should.

VICE•CHANCERY COURT-(THIS DAY.)

The VICE-CHANCELLOR did not take his seat this morn—
ing rill nearly eleven o'clock, having to sit with the Lolls—
CrioNcELLoit and give judgment in several bankrupt
petitions with respect to the jurisdiction of the Court in
B nkruptcy. On MI Honour taking his seat he observed
that he thought it would be a convenience to the bar if he

did not sit on Friday, as he saw by the votes of the House
of Lords the heavy appeal of De Beavoir v. Rhodes, was
appointed for hearing on that day, and as most of the
leading Counsel at the bar were engaged in it, little or no
pt ogres.; would be made in his Court, and from the state of
the present cause paper there was no necessity for pressing
on the I usiness. His Honour will proceed with motions
on Saturday.
The Court was occupied the whole morning with the
further arguments in the part heard case of Manfield v.
Keys.