The Sun.
London, England, 1861-07-19 00:00:00

THE SUN, LONDON, FRIDAY EVENING, JULY 19, 1861.

/ he would have little or nothing to do, and that it would not
1 be right to saddle the community with the expense attaching
to his office, if adequate duties were not to be performed.
The hon. and learned gentleman said that an appeal before
the Lords Justices cost somewhere about £5O in each case,
and the delay caused by these appeals was frequently of
very long duration before final judgment was given ;
whereas by the proposed arrangement for the appointment
of a chief judge, the expense and delay would be very
greatly lessened. The hon. and learned gentleman further
contended that as the abolition of the Insolvent Court
would largely increase the business of the Court of Bank-
ruptcy, the consequence would be that a large increase
would most certainly take place in appeals tobe tried by the
chief judge. In the year 1859-60 the number of cases before
the Insolvent Debtors Court was 2,700, and the number
before the Court of Bankruptcy amounted to I,336—facts
which showed the great increase of business that would
take place in the latter court. The manner in which the
business before the chief judge was to be conducted was so
inexpensive and so convenient, that judgment could be ob-
tained in a way that could not but be satisfactory to all par-
ties concerned. Under the 67th clause of the bill, the chief
judge had the power of sending a question of fact to be tried
by a jury, which would be a great improvement on the pre-
sent system, under which equity judges decided such a
question. The alteration could not but give satisfaction to
the parties in the case, as it would greatly facilitate the
judgment at which the judge would arrive. The chief
judge would also have the power of sending the question
of fact arising out of a case of bankruptcy before the
judges of assize. The new judge would also have the
power to determine questions on deeds of arrangement.
This would be a most important duty of the chief judge.
No material alterations had been made by the Lords in
the clauses respecting private arrangements, but they had
struck out from the bill that judge and that tribunal
by whom, and by whom alone, these novel powers as
to private arrangements could be exercised. The bill
consequently in this respect was rendered inopera-
tive. Again, the bill professed to treat as misdemeanours
and to punish certain acts of the bankrupt or insolvent,
such as concealment of property and refusing to give
full information. This new jurisdiction, which was one
of no slight importance, the measure, when it left the
Commons, enacted should be exercised by the chief judge;
but the Lords had refused their sanction to the appoint-
ment of that judge. He believed that among lawyers
there was almost perfect unanimity of opinion as to the
wisdom and necessity of the provision regarding the chief
judge. The mercantile community, too, were most de-
sirous that this portion of the bill should be restored.
There had been presented to the house within the last few
days a petition bearing 200 signatures of bankers and emi-
nent merchants in the City of London, regretting the
alterations made by the Lords, and praying that a chief
judge should be appointed to preside over the Court of
Bankruptcy, with appellate power. He might remark that
the amount of appellate business under the bill would be
very large, as each of the sixty county courts would be-
come, according to the proposed arrangement, courts of
bankruptcy. This was another reason why the chief judge
ought to be appointed. If the bill were not restored to the
form in which it went up to the Lords, it would not work
well or give satisfaction. He concluded by moving that
the house disagree with the Lords' amendment respecting
the chief judge.
Mr. BOVILL denied that there was any unanimity
among the lawyers on his side of the house, with regard to
the expediency of appointing a chief judge, but the most
eminent of the law lords in the other house, with the ex-
ception of the late Lord Chancellor, supported the proposi-
tion made, he believed by Lord St. Leonards, when the bill
was before a select committee, for expunging the chief
judge clause. There was an equal amount of unanimity in
the mercantile committee over which Lord Overetone
presided. The petitioners from Manchester and Liverpool
thought the appointment of a chief judge would entail un-
necessary expense without any adequate results. In peti-
tions from Belfast, Bristol, Wolverhampton, Coventry and
other large towns, not one of them objected to the striking
out of the clause relating to the judge. There was therefore
as great a unanimity amoug commercial men on this point
as there was in the House of Lords. What was the origin of
the proposal to introduce a judge ? It arose out of a propo .al
to:abolish the six commissioners, but now it was proposed to
preserve tho commissioners and have a judge too. (Hear,
hear.) This was very properly considered too expensive.
The arguments of the Attorney-General were addressed to
the House of Lords in 1831. Four judges were then ap-
pointed to perform what was alleged to be the overwhelm-
ing duties. But for sheer want of business these judges were
abolished and pensioned off. (Hear.) The Legislature then
selected as a court of appeal the Lords Justices. Now, was
any one bold enough to say that that was not a satisfactory
tribunal ? He would venture to say no one would complain
of that court. And what was their amount of business ?
Why, 15 days in the year. (Hear.) If they were to have
new judges, send thorn to the common law courts, where
there was an arrear of business, and where justice could not
be done owing to delay. (Hear, hear.) What judge, how-
ever learned, could give an opinion entitled to more re-
spect than a judge in bankruptcy (Mr. Holroyd, for in-
stance, who had devoted 30 years to that department, of
jurisprudence), and the other five commissioners, who
were men of great ability and experience. (Hear, hear.)
If the judge proposed to be appointed should differ in
opinion from the
„vommissioners, an appeal would then be
made to the Lords JustiCes. Why not do this in the first
instance ? Why pay £5,000 a year to a judge whose opi-
nion can be of no use if it coincides with that of the com-
missioners, and which if it be in opposition would be referred
to the Lords Justices ? (Hear, hear.) He (Mr. Bevil])
thought the conjoint opinion of the Commissioners of
Bankruptcy was superior to the opinion of any one judge,
however distinguished. As there was ample time for con-
sidering this matter, and as the bill must come before
Parliament when the consolidation of tb.e law will be taken
into consideration, he :saw no reason at present for incur-
ring this unnecessary expense. The criminal cases arising
out of bankruptcy were tried' before the judges at the
Central Criminal Court, therefore there was no reason on
that ground for the appointment of this new judge. He
ventured to say that upon all these grounds there was no
necessity for the appointment of this new judge. The
House of Lords were opposed to the appointment, and the
petitions from Liverpool and Manchester also showed that
such an appointment was wholly uncalled for.
Mr. COLLIER said he had considered this question of
the appointment of a new judge of the Court of Bank.
ruptcy, and he had arrived at the conclusion that such an
appointment was perfectly necessary. Without a compe-
tent judge, he believed that the proposed change in the
bankruptcy law would lead to chaos and uncertainty. If it
had not been that they had appointed an eminent judge in
the Court of Divorce, he believed that the difficulties which
surrounded the change which had taken place in the law
of divorce would not have been overcome. The case in
the present instance would in all probability be the same,
for, in his opinion, the success of the proposed change in
the bankruptcy law would mainly depend upon the ap-
pointment of the new judge. No doubt that judge would
not be taken from the bar, but one of the pre-
sent judges would be selected to fill the appoint-
ment in question. This would be sure to give general
satisfaction, as its- would lead to a settlement of
difficulties which would necessarily arise, in the first in-
stance, in consequence of the proposed changes of the bank-
ruptcy law. He denied that the commissioners were the pro-
per persons to carry out the provisions of this bill, for their
present decisions were not accepted in Westminster Hall.
The hon. and learned gentleman then referred to the pro-
visions of the bill in reference to the power to be placed in
the hands of the new judge, and contended that those powers
were necessary to carry out uniformity of practice in pro-
ceedings in bankruptcy. Trial by jury was introduced for
the first time into bankruptcy, and he considered that this
provision of the bill was a most salutary one, and would
greatly facilitate the judgment of the chief judge in any case
in which he sent a fact to be tried by a jury. He contended
that there would be sufficient business to justify the ap-
pointment of the judge, who would not only be the judge of
appeal in bankruptcy, but he would also have a vast deal of
original business to dispose of. He believed the chief judge
would, instead of having very little to do, have quite as
much business on his hands as any judge in Westminster
Hall. In furtherance of the administration of justice, he
hoped the house would adhere to its original determination,
and restore the clause sanctioning the appointment of chief
judge at the moderate expenditure of £5,000 a year.
Mr. MALINS contended that it was essentially necessary
the chief judge should be retained, and he further expressed
hisopinion that the bill without the chief judge clause would
be worse than worthless. The argument advanced against
the appointment on the ground of reckless expense, was al-
together unfounded. The commissioners were not to be re-
appointed as vacancies arose. The chief commissioner was
82 years of age. The second commissioner was 75 years
old. In the natural course of things they could not much
longer retain their offices. A saving of £4,000 per annum
would thereby be effected, while the salary proposed to be
given to the chief judge was only £5,000 a year, leaving the
small difference of £l,OOO a year on the score of additional ex-
penditnre. He entirely differed from the principle laid down
by the hon. and learned member for Guildford, that they
would do well in retaining the present commissioners to
work the bankruptcy system, which they now worked badly
and which they would continue to work badly, if the pre-
sent court or the present machinery were retained. Unless
this bill created a court of great authority on the law of
debtor or creditor, most of this session had been wasted.
He thought the commissioners should be allowed to drop
off gradually, and that a judg3 of eminence should be ap-
pointed. If this were not done it were better to withdraw
the bill altogether. (Hear.) The clauses [objected to had
received the almost unanimous assent of the House of Com-
mons, and it was surprising to him that objections should
now be raised against them by the hon. members who had
to do.
at least silently acquiesced in them when under the conside-
ftahlalat.cuiun
rtiation of the house. (Hear.) The hon. and learned gen-
udi ise under the
than
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ss)e
tthoughthut alterationsappeals
email (Mr. Bovill) said the chief judge would have nothing
tuhlidn gb
e can b
referredemore
to
abun-
dance of business for the new judge.
the Vice-Chancellor's Court, or that of the Master of the
Rolls, where the business was at present overwhelming.
The best way was to appoint an efficient judge, who would
give Ilia exclusive 410 luadivicled Mtellti9A WOW NORM
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