The Sun.
London, England, 1857-01-29 00:00:00

AFItALS ON CERTIFICATE&

Before concluding this subject of punishment and this paper,
beg to say a few words with relation to a matter of some
rupurtance, that is the present state of the appellate jurisdie-
don as reg irds bankrupts' certificates. The question of the
amount of punishment to be inflicted by the Court of Bank-
ruptcy generally arises ou questions of granting, suspending,
or refusing the certificate. It has been stated in a very public
manner that an unfortunate difference of opinion exists be •
tween the Lords Justices and the Commissioners of the Court
of Bankruptcy regarding the proper quantum of punishment
to be affixed to different degrees of culpability in bankrupts
applying for their certificates. No doubt it is the fact that ou
appeals the Lords Justices generally alter and modify the
sentence of the Commissioners, almost invariably reducing
the quantum of punishment. But it will be asked, how can it
be said with any propriety that a difference of opinion can
exist between the Commissioners and the Court of Appeal,
seeing it is the duty of the inferior tribunal to bow to the de-
cisions of the Court of Appeal/ It will at once be perceived
that this is a difficult and deliaate question to touch upon ; but
I think I may venture to state, as a general proposition, that
in many of the appeals the Lords Justices have so differed
from the Commissioners ou questions—sometimes of princi-
ple, sometimes of detail—of such a nature that the judgment
of the one or the other must be fundamentally wrong on
questions of common mercantile life and morals. Tho result
appears to be, that, in order to maintain that feeling of re-
spect which ought to accompany every tribunal for the
administration of justice, one of two things ought
to take place—either the whole question of the certificate
must be taken from the Commissioner and transferred to the
Lords Justices, or the appeal on questions of certificate must
be abolished, and the decision left with the Commissioner.
As regards the first plan, it is tolerably certain that the Lords
Justices would never tolerate the wearying labour of deciding,
in the first instance, concerning bankrupts' certificates; even

if their lordships felt inclined to undertake the task, it is
very doubtful whether they could possibly find the time, and
if they could still arises the question whether the public would
endure the expense of taking all the couutry cases to London;
and finally, would their lordships' decision be satisfactory,
seeing that the whole case up to that time had been before
another tribunal. The result appears to me that the appeal on
questions of-oertificate only ought to be abolished. But, in
leaving the decision in the hands of the commissioners alone,
it must be remembered that lawyers are not born with any
peculiar aptitude to judge of commercial matters; and their
legal education and professional pursuits go very little way
towards supplying what, like all other men, they have to
learn upon the subject. Skill and knowledge on such matters
is the slow growth of time and experience. The commissioner
sitting daily, attending daily to commercial matters, sur-
rounded by men iu trade, and by solicitors connected with
1 merchants, may be supposed in time to gain some portion of
experience in commercial matters. But in order to guard
the public against any erroneous, views which the commis.
sioner may take—he being of course liable to infirmity of judg-
ment, exposed to mistakes, and to take the worst possible
view, even subject to caprices, all of which must be guarded
against—the remedy will be to require that on questions of the
last examination, or of certificates, if any of the parties (that
is, the bankrupt, the assignees, or any apposing creditor) shall
require it, two commercial men of the district— members of
the Chamber of Commerce if possible—not connected with
the bankruptcy, but of the same trade as the bankrupt, shall
sit with the Commissioners, having a voice and vote in the
determination of the case. With this guard, the appeal to
the Lords Justices on such questions might be abolished with
safety and advantage to all parties. That something should
be done is clear. The habitual reversal or alteration by the
Court of Appeal o the decisions of the Commissioners—those
frequent collisions of opinion about matters of common com
mercial life- must needs damnify one of the courts. I have
just given judgment in a case which strongly illustrates the
necessity of the assistance of commercial men. For two years
past two partners, woolspiuners, have been before me. Seve-
ral of the principal creditors, and also the assignees, contend
that the bankrupts have not accounted for, and have there-
fore concealed upwards of, 44,0001b5. weight of wool. On the
one hand a skilful accountant examined the bankrupts' books
and stated that he found this deficiency ; on the other hand,
the bankrupts brought forward a no less skilful accountant,
who also examined the same books, and arrived at exactly the
contrary conclusion, stating that the deficiency was or might
be accounted for by waste of various kinds. It appeared to
me that the bankrupts had been guilty of concealment, and I
refused the certificates ; against the decision the bankrupts
have appealed. Now it would have been in the highest de-
gree satisfactory to me to have had the assistance of some
gentlemen connected with woolspinning, who would have
known exactly what questions to put to the witnesses, and
who would have known what weight to allow to their evi-
dence, and who, from themselves inspecting the books, and
bringing their own knowledge to bear on the subject, would
have been able to form a good opinion as to whether the
alleged loss by waste really took place. But an appeal is
one to the Lords Justices. Among the questions which they
will have to decide will be, whether this or that lot of wool
has been fairly workedup and sold, or whether so many ozs.
per pound have or have not been wasted in the manufacture
of this or that particular lot of wool. Can their lordships trace
40,0001 b. weight of wool through a woolspinner's books any
better than the commissioner could? If, therefore, the appeal
is to continue to the Lords Justices, I think their lordships
ought to have associatedwith them on such occasions one or two
mercantile men, in the same manner as I kave suggested for
the commissioner.

Mr. Ihsrmos then read'a paper from the Leeds Chamber
of Commerce, which was to all intents an echo of that read
by Mr. Commissioner Ayrton.

Lord BROUGHAM wished to bring the discussion to a point
upon those matters upon which there seemed to be a general
agreement. So far as he could gather, they wished to throw
the cost of the Court of Bankruptcy upon the Consolidated
Fund, to do away with the offices of messenger and broker
altogether, and, as far as London was concerned, to do away
with the office of registrar. Mr. Ayrton proposed that the
official assignee should be paid by salary, not by fees. As re-
gards that matter he could not go quite so far with him, but
thought it better that that officer should be remunerated par-
tially by salary and partially by fees—that was, by fees up to
a certain amount ; for if they were to pay him by salary alone
he wouldbe found to sleep in the performance of his duty. As
regarded the abolition of the appeal, he (Lord Brougham)
lik wise disagreed with Mr. Ayrton, as he thought it necessary
to secure uniformity in the administration of the law.
Mr. PAGET, of Leicester, supported the views taken in the
papers road to the conference, and remarked that the public
did not appreciate the distinction between the different classes
of certificates in bankruptcy.
Mr. LLOYD said in Birmingham the district court was a
complete byeword from the manner in which the business
there was conducted. He knew of an importantit
case
which
have
had been under adjudication there, and when
registrarwas
to
been heard the parties and concernedtwietrneessoemsmissionerno
were
at-
tendance, but there was neither
there.
Lord BROUGHAM—
Why did you not complain to the Lord
Chancellor
M YD replied that a solicitor in Birmingham had
taken. Lthat course, but got no answer to his letter. Mr.
Lloyd then went on to buggest several improvements in
the bankruptcy
law, the more important of which were
proposal that the holder of a bill of exchange should
first, the
not bo entitled to prove against the estate more than had
been actually paid on the instrument, together with the dis-
count at the rate of that of the Bank at the time the cash
was advanced ; and, secondly, the propriety of giving the
Court of Bankruptcy the power of giving sanction to assign.
monts made out of Court. (Hear, hear.)
Mr. Aximarox argued that the law of bankruptcy should
not be confined to traders in the strict sense of the word,
but should be extended to all debtors, especially to solicitors,
who frequently fell into debt, as they had a great temptation
to do so from the money of their clients passing through their
hands.

Mr. TURNER said he had received a communication from
Mr. Commissioner Skirrow with which he would not now
trouble the conference, but would merely state that it con-
firmed the views of Mr. Commissioner Ayrton.
Mr. WELLS, of Hull, found fault with the test proposed by
Mr. Commissioner Ayrton, namely, of requiring a dividend of
10s. or 15s. from the estate before granting the bankrupt his
certificate, as it might work great injustice. Ho did not
wish to place the power of refusing the certificates in the
hands of the commissioner. He thought the better course
would be to make it compulsory on him to grant it if two•
thirds of the creditors were of opinion that the bankrupt
ought to have it. All questions of insolvency should, he was
of opinion, be adjudicated upon in bankruptcy, and he
agreed with the noble chairman as to the manner in which
the official assignee should be paid. As a solicitor, he had
some experience of the working of the laws of bankruptcy,