The Sun.
London, England, 1832-02-20 00:00:00

COURT OF CHANCERY, Fn. IR.

lURISDICTION IN BANKRUPTCY,

The argument of the question which has arisen as
to the power possessed by the Court of Review to
hear and decide upon cases which before the passing
of the late statute had been appealed to the Lord
Chancellor, was brought on to-day in pursuance of
his Lordship's order for that purpose. The Vice-
Chancellor, at his Lordship's request, was present.
Mr. SOLICITOR-GENERAL addressed the Court is
the matter of Harding, in which the question as to
the jurisdiction has arisen. The statute law in
bankruptcy was contained in the Act of the 6th
year of the late King's reign, and in the various
decisions which had been from time to time pro-
nounced in the Courts of Law and Equity on the
cases brought before them. In all respects in which
the statute he had referred to remained unrepealed,
and so far as no new statue controulled the decisions
made, that statute and those cases formed still the
law of the land relating to bankruptcy. The clues.
tion DOW before the Court was, whether the cases
in bankruptcy which at the time the statute of the
Ist and 2,1 of the present King were pending fell
within the provisions of the latter Act, and were
to be transferred at once to the jurisdiction created
by that Act. In examining this question, he
proposed to limit himself to the very letter of
the stature, and the case which he was instructed to
support. In the first place, it was clear that tire sta-
ture of the Ist and 2d of William IV. did not repeal,
nor did it mean to repeal, the 6th of George IV.
He did not, therefore, suppose that it could be con-
tended that the jurisdiction conferred by the last
mentioned Act was annihilated. It could trot be said
either that the new statute contained provisions so
far inconsistent with those of the former Act that it
was impossible for them both to exist toget her, and
therefore that the provisions of the former Act were
by implication to be extinguished. The preamble
of the ne,v Act recited that of the 6th George IV.,
and stated that it was expedient to provide means of
administering the effects of bankrup a, and of deter-
mining questions touching the same, " other" than
are provided by the said Act. The question which
arose upon this was, whether the word " other"
meant in addition to the existing tribunals, or in
substitution for them. So far as the preamble at-
, forded a key, it could not be argued that it was in-
tended thereby to repeal the 6th George IV. The
new Act also enabled his Majesty to establish a
C ,urt of B inkruptcy, but the ancient jurisdiction
was riot put an end to. If it was to be contended
that such jusisdiciion was by such a clause put an
end to, as well might it he said that the jurisdiction
of the Courts of King's Bench and Common Pleas
were put an end to in all cases where the validity
of commissions of bankrupt were to be tried, and
where he believed many such questions would
still be very often tried. The second section of

the Act, enacted that the Judges in Bankruptcy,
or any three of them, should form a Court of Review,
which should have superintendence and controul in
all matters of b inkruptcy, and should also have
power, jurisdiction, and authority to hear and deter-
mine, order, and allow, all such matters in bank-
ruptcy as usually were, or lawfully might be, brought
by petition or otherwise before the Laird Chan-
cellor, whether such matters should have arisen in

the said Court of Bankruptcy or elsewhere. This
clause, however, he contended, did not give an ex-
clusive controul to the Court of Review. The new
Curt was constituted to aid the old, not to take
away its juri,dic,ion. The petition in the present
case had never been in the Court of Bankruptcy.

It was a proceeding under the old law, and there
was nothing in the new Act to take away the juris-
diction of this Court from matters pending in it he-
file the passing of this Act. This petition had been
presented to his Lordship, an order for hearing it
had been obtained, and it had been partly heard.
This could not, therefore, be a case for the interfe-
rence of the Court of Review,—it was not a matter
" in the Court of Bankruptcy,"—his client had not
petitioned or moved the Court of Review ; and
unless he had applied to that Court, what right had
the Judees to take to them-elves a petition presented
to this Court ? The Act did not extinguish exist-
ing proceedings, and there must be some Judge to
decide upon them. The new Judges could not and
would not hear it, because it was nut addressed to
them. The petition would be extinguished if it
were riot heard in this Court. No other tribunal
could decide it.

Sir E. SuGDEs proceeded to argue on the same
side. The question was, he admitted, one of diffi-
culty, and more particularly as the late statute, con-
stituting the Court of Review, contained no provi-
' ions to meet those cases of a similar description
with the present which had arisen under it. He
held it to be perfectly clear—too clear to make it
necessary for him to address any argument upon the j
point—that no established jurisdiction could be re-
moved without either an express enactment, or by
such an imperative provision in a new law, as ren-
dered it inconsistent with former statutes, and there-
fore impossible for the old jurisdiction to continue.
There was nothing in the Act to provide for this
case. Could it be said that there was anything in
it to take away this petition from his Lordship's
paper ? There was not even an implication that
his Lordship's power was to he taken away. In sec-
tion 39 of the new statute, where the power of the
old Commissioners was determined, it was done by
express enactments. The same remark applied to
the section which took away the jurisdiction of the
Vice-Chancellor. So that wherever the Act ap-
peared designed to take away jurisdiction, it did so
expressly, and not by implication ; and it would be
most unfortunate for the suitors, and for the public
generally, if the laws were framed upon any less
accurate and intelligible principles. According
to the known rule in construing statutes, the
word "elsewhere" most apply to inferior Courts, and
could riot comprehend a superior Curt. He con-
ceived the true construction of the Act to be, that
where a matter was originally before the Lord Chan-
cellor, he had power to conclude it. Lr this case
there had been a decision by Lord Lyndhurst, which
was afterwards brought for rehearing before the
Lord Chancellor, who, if he should have it discussed
before him, would have to decide on the law, the
facts, and the evidence. It' the Court of ILvie%v,
on the contrary, should be thought to have the
power of deal,ng with the case, and should be per-.
mitred to rehear the petition, and if they should
think fit to reverse the decision which Lord Lynd-
hurst had pronounced, the rights of the parties
would be most unjustly limited, for from their de-
cision it could only be appealed to the present Lord
Chancellor in matters of law or equity, or refusal of
evidence. The Lord Chancellor would therefore be
bound hand and foot in the exercise of his appellate
jurisdiction. If the former deeisioti of Lord Lynd-
hurst should prove to be right, and they wrong, the
Lord Chancellor could still be powerless. Such a
mischievous stare of things could never have been
intended by the Legislature, and could not be
etiffered to remain. The expense of furnishing
the four Judges of the Court of Review, with a
copy of the petition amounted, where the petition
was long, as in heavy cases it often was, to almost a
denial of jestice. The delivery of briefs to Counsel
in this Court, and the being afterwards deprived of
their assistance in consequence of the petition being
transferred to the new Judges, Was an expense fit,„
of a very serious amount, and might besides occasion
an inconvenience for which there was no prospect of
compensation or relief.
Mr. MONTAGU followed on the same side.
The LORD CHANCELLOR inquired if there was any
Counsel instructed on the other side ?
Sir E. SUGDEN said, notice had been given to the
Opposite party, hut he did not ktrow that any one
was instructed to appear. He rather believed it was
meant to leave the matter to the decision of the Court.
Mr. JACOB afterwards appeared to oppose the ap-
plication, and argued shortly in favour of the right of
he Court of Review to dispose of all the existing
petitions in ternkruptcy generally.
An argument to the same effect was then addressed
to the Court in the bankruptcy of " Dilworth cr-