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The objections which may be made to a tribunal so constituted, ignorance, incapacity, local interests, favor and affection, prejudice, and sometimes malice, to say nothing of jobbing and cupidity, are so obvious, that we need not dwell on the weakest part of the system; and would therefore rather rest our arguments on the general defects of the jurisdiction, as exercised in London by regular and permanent Commissioners, and leave the deduction à fortiori to our readers, than appear to cast an invidious obloquy on country practitioners. In one point of view, however, it is essential to draw attention to this defect. When it is proposed to lighten the business of the Court of Chancery by transferring to the jurisdiction of the Commissioners certain matters which obviously should belong to them (in the first instance), as the removal of assignees, the allowance or recal of the certificate, and other similar subjects, the proposal is immediately met by the question, "Could you trust these things to country Commissioners? As now constituted, certainly not! These country Commissions therefore are the great obstacle to reform, and yet it happens most strangely that the Chancery Commissioners blinking the more serious evil, propose their remedy (valeat quantum !!) for London only. It is difficult to imagine the train of reasoning which could have led to such a conclusion; for the Chancery Commissioners must have known that the majority of petitions in the nature of appeal come from the country and not from London, and that taking both together, the appeals, properly so called, do not constitute one-twentieth part of the petitions annually presented. The mass of petitions are not from the judgments of the Commissioners; but are to enable the Commissioners to execute, or calling upon the Lord Chancellor to execute, various powers, which, from the notorious imperfection of the lower tribunal have been withheld from its jurisdiction, in the first instance, or have been entirely reserved for higher judgment; as in the case of an equitable mortgage, of which the Commissioners can take no account till the matter has been referred to them by the Court the removal of assignees the allowance or recall of the certificate, and many other points which might be safely entrusted to regularly constituted tribunals; but are prudently with
harm in all this as far as clients are concerned, for the young gentleman will not get much business unless he deserves it, and his early blunders are generally corrected by his leaders; but it is otherwise when he is uno flatu called to the bar and promoted to the Bench (though it be only the Bench of the Quarter Sessions), or entrusted with the compli
cated interests of trade, as a Commissioner of Bankrupt. The remedy for this evil is obviously with the Inns of Court; but whether they will consent to a sacrifice of their revenues to the interests and honour of their profession, is a question which, at present, we will not venture to moot.
held from the doubtful competence of Commissioners of Bankrupt. Create a better Court of first instance, and the difficulty vanishes; the Court of Chancery will be relieved from a mass of business, which is supposed to impede its progress; and the commercial interests will practically enjoy a cheap and expeditious jurisdiction, the festinum remedium, which the theory of the law allows to be necessary in bankruptcy.
Having, as we hope, proved the expediency of establishing permanent Courts for transacting the business of bankruptcy and insolvency, at the least; the question of expense remains to be considered. We shall not at present take into consideration the saving which we have proposed by the abolition of commissions as now issued; that saving, if effected must be gradual; but, taking the amount of fees now paid to Commissioners throughout England, leave it to the reader to determine whether that, sum, together with the salaries of the existing Commissioners of the Insolvent Debtors Court, would not be sufficient to support an adequate number of provincial Tribunals. There are in London 70 Commissioners of Bankrupt, whose average receipts (the last year not included) are 3001. per annum, or 21,000l. for the whole-the number of country is nearly equal to the number of London commissions; but the expense is much greater, from the increased number of adjournments, and from the quorum Commissioners taking 2 and 31. for each sitting instead of 17.-Thus a meeting which costs 3. in London for Commissioner's fees, must cost 41. and may cost (if there be three barristers) 97. in the country. We must, therefore, be much within the mark, if, for the sake of round numbers, we calculate the fees to country Commissioners at 29,000l. making in the whole for fees only 50,000l. a year, (u) an enormous sum,
(u) Mr. Montagu, in his Digest, No. 4, makes this expense only 42,000l. ; but calculating the number of London and country Commissions as equal, he makes the cost of each in fees 21,000l. not adverting to the then double (and now sometimes treble) fee of the Quorum Commissioners, nor to the notorious number of adjournments. In other respects, however, he exceeds our estimate, making the annual cost of Commissions no less than 221,000l. without. including the solicitor's bills (except for fees) for the conduct of the Commissions, or the necessary suits, petitions, or actions, arising out of them. His estimate is as follows:
enough to pay 25 regular Judges, at the rate of 20001. a year. (v) Nor is this by any means the only sum which would be available for the support of a better system. By the appointment of an accountant general into whose hands all monies, now deposited with private bankers, should be paid, an immense sum would be annually saved in interest for the direct benefit of the estates, the risk of failures would be avoided, and unclaimed dividends (w) and undivided residues, instead of going into the pockets of individuals, would be applicable to the public purposes of the Court.
Thus we should have a sum amply sufficient, not only for the support of the new Courts; but also for compensation to those who are necessarily displaced from established offices: subject to these lives, and the provision of an adequate fund for future pensions (it is bad policy to retain superannuated Judges), a gradual saving may be made, in the general expenses of bankruptcy.
The last point to which we shall at present advert, and it is certainly one of considerable practical importance, and of some difficulty, is PATRONAGE; for while one party will not fail to deprecate the abolition of so many established offices, another will be equally violent in vociferation against the establishment of new places. Against the one it may be urged, that the amount to be disposed of under a new system will be greater than under the old, (a) though the number of persons among whom it is to be distributed will be less.. Those who dread the increased influence of government must remember that the disposal of offices of considerable magnitude is subject to, and in a great measure controuled by, public opinion; while the patronage of petty places is free from such check-but if it were not so, we should still contend that no object of obvious utility ought to be opposed on this ground; it is of the idle sinecurist, not of the working officer, that the country should be jealous; with the one, place is the price of subserviency-with the other, it is the reward of labour. Therefore, though the influence of the Crown might be increased by the general extension of our judicial establishments, and the
() We consider 1500l. to be the minimum for which a barrister properly qualified would leave his practice, or hope of practice, at the bar.
(w) 6 G. 4, § 110, is all but useless for want of a clause similar to $120. Since this article was written, we perceive that Mr. Alderman Wood has moved for a return of unclaimed dividends entered at the Bankrupt Office. Though we dislike piece-meal legislation generally, in this instance we should
recommend a short bill to amend the abovementioned section; because the amount of this fund may determine a main question as to pensions, compensations, and salaries.
(r) See the Report of the Committee of the House of Commons in 1817, from which it appears, that the Chancellor had declined increasing his patronage by appropriating to himself (as the Committee think he ought have done) the appointment of Commnissioners in the country.
patronage of the Lord Chancellor would be swelled in amount, though reduced as to the number of persons among whom it must be distributed, by the proposed establishments of permanent judges in Bankruptcy; we shall deem these as minor considerations, when compared with the benefits which the people will derive from an improved administration of the law in those branches which more immediately concern their daily interests.
Since these observations were written his Honour the Master of the Rolls has brought in a Bill to carry into effect some of the Propositions of the Chancery Commissioners: we were not surprised to perceive that those relating to bankrupty had been totally omitted, for they had scarcely been printed when it was as generally understood in the profession at large that they were abandoned, as it was obvious to those intimately acquainted with the subject, that, if adopted, they would prove inefficient. There is, however, one clause which virtually affects the Bankrupt Law; it is to be enacted
"That when and so often as it may appear expedient, in respect of the weight and pressure of the business depending in the High Court of Chancery, it shall and may be lawful for the Lord High Chancellor, upon any application made to him for a writ of habeas corpus, to award and grant such writ, and to order that the same be made returnable before any one of the Justices either of the Court of King's Bench or the Court of Common Pleas at Westminster, or before any one of the Barons of the Court of Exchequer at Westminster; and the justice or baron before whom such writ shall be so made returnable shall proceed thereon in the same manner, and any order made thereon shall have the same force and effect as if such writ had, in the first instance, been granted by such justice or baron."
Now it is well known that scarcely any writs of habeas corpus are brought before the Lord Chancellor, except in cases of bankruptcy, and that for the causes which the following case will exemplify.
"IN THE MATTER OF ROBERTS, A BANKRUPT.
"Mr. Horne said, he had a case of Habeas Corpus to bring before his Lordship, in the above matter, which was accompanied by a petition. The Habeas Corpus had not been moved for to bring up the bankrupt, but for the purpose of bringing up a young man of the name of White, à salesman at Manchester, who had been committed by the Commissioners for not satisfactorily answering certain questions put to him respecting the property and conduct of the bankrupt.
"Mr. Rose objected to Mr. Horne's bringing on the petition, which prayed nothing more or less than that the bankrupt should be discharged. The petition complained of the conduct of the commissioners, and he thought it ought not to be brought on till the commissioners had been served with a copy.
"Mr. Horne said, he would not then open the petition, as his learned friend had objected to it, but he would confine himself to the commitment. The learned counsel then went through the whole of the examination, and
submitted that the answers given by Mr. White were perfectly satisfactory, and that he ought to be discharged.
"Mr. Rose, in support of the commitment, said, he should not think of going at length into the case, as his lordship must already be almost fatigued with hearing these matters. He, however, contended, that, upon the whole, the examination was very unsatisfactory, and that the answers were given for the purpose of deluding the commissioners, and protecting the bankrupt.
"The Lord Chancellor observed, that more writs of Habeas Corpus had come before this Court within the last week, than were brought before it during the whole three and twenty years that he practised at the bar. This was the state of things after the legislature had passed an act for the purpose of enabling every judge of the land to hear these matters.
"Mr. Horne having replied,
"The Lord Chancellor said, that, perhaps it was the natural tendency of his mind to discharge all persons committed in bankruptcy, which might have been the cause of misleading him in many cases; but, though he avowed it was his inclination to do so wherever he could, still, it did not appear to him that he could at present discharge this person. He should, however, state, that he thought it would be better for the commissioners to ask a few more questions of Mr. White, as he certainly should have done so, had he been one of them, and he should wish to be informed of what passed before the commissioners as soon as the examination should be closed.
"It was then arranged that the petition respecting the discharge of the bankrupt should stand over till the result of the further examination was known."
We shall have occasion, at no distant period, to advert at some length to the many disputed points which arise, as to commitments by Commissioners of Bankrupts; we shall at present content ourselves by referring our readers to an able publication on this subject, by Mr. Beames, in which all the cases and authorities are diligently collected; we do not, it is true, absolutely agree with this gentleman in the result of his reasoning; which, though it may be correct as to the present state of the law, appears to go too far in vindication of the established, but mischievous, fiction,
Nemo tenetur prodere seipsum.
The Lord Chancellor confesses the tendency of his mind to discharge all persons committed in bankruptcy: can his Lordship then be surprised, this tendency being notorious, that all prisoners bring their writs of Habeas Corpus before him, in preference to any other judge, and that more especially as he is well aware that, while a common law judge must confine himself to the consideration of the warrant only, he, on the other hand, may wander over the whole mass of proceedings in search of irregularities on which to found a discharge.
We have often heard his Lordship complain, that this branch