that length
must give his directions, or, if there was
any doubt on the subject, a short enact-
ment would do it in a moment, that the
parties should proceed before the Court
upon the same evidence on which they
proceeded in the Court below, and then
they would have all they required. The
hon. and learned Gentleman opposite
seemed to forget, that the Commissioners
had the power of examining witnesses
viva voce.
Their depositions were taken
down in writing from the mouth of the
witnesses, from questions put to them;
if it were known by the parties that the
case would be tried by the Court above,
upon the same evidence as that taken be-
fore the Commissioners, they would arm
themselves with their witnesses before the
Commissioners they would take the
greatest pains to have the latter properly
brought before the Court below, and there
would not then be so many appeals
from their decision. Did all this render
this Act of Parliament necessary? What
was the nature of the present tribunal? It
was established in the reign of Queen
Elizabeth; it was amended by Lord
Hardwicke; it was improved again by
Lord Thurlow, and his great successor;
no part of it was attempted to be sub-
verted by Sir Samuel Romilly; and these
alterations were proposed under the au-
spices of a Judge of whom he wished to
speak with all possible public and private
respect; but who, for all that, had not been
at the head of that jurisdiction yet barely
twelve months. Under this jurisdiction,
questions were, in the first instance, mooted
before Commissioners selected by the
Lord Chancellor, who was responsible if
they were not properly qualified; for, he
might change all, or any of them, at a
moment's notice. The examination of the
witness was viva voce, he was confronted
with the person to whom he was opposed,
and, in the event of a party appealing
from the decision of the Commissioners, he
had his option of going either before the
Lord Chancellor or Vice-Chancellor. He
had shewn that this jurisdiction might be
relieved from all the inconveniences of
affidavit evidence-if affidavit evidence
was generally inconvenient, which he was
sure no lawyer in that House would say
-without being prepared to go this length.
He had shewn, that delay did not exist, and
that affidavits, if affidavits were to be used,
would necessarily be brought within a rea-

If

then the Lord Chancellor | sonable compass and a reasonably short space
of time. He had shewn that every pressing
case might be, and was, heard immediately,
and that every case which was not press-
ing might be heard within the space of two
months after the petition was filed. This
was the actual state of the case. Another
objection was made to the present system,
namely, that the Commissioners did not
attend to their duty-that they had to
attend to several commissions at the
same moment. If it was as the learned
Serjeant, or one of his hon. and learned
friends told them--if a Commissioner were
so to misconduct himself as to be busying
himself with a newspaper when he ought to
administer justice, could it possibly be
supposed that a Judge who so miscon-
ducted himself would not be instantly
removed by the Lord Chancellor, who had
at any time the power of taking up his
pen and striking him out of the list?
there was any real cause of complaint-if
it really were a mischief that the Commis-
sioners at public meetings at Basinghall-
Street, which place was now substituted
for Guildhall, should attend to several
meetings at the same time-why did not
the Lord Chancellor prevent it? Why
did he not-as he might-issue an order
that only one commission should be at-
tended to at a time, and that a given
portion of time should be allowed for each
commission? He had the power, and, if
it was required of him, he ought to ex-
ercise it. Why had no Lord Chancellor
done so? Because it was not requisite to
be done: if it were requisite, the number
of appeals would be somewhat greater
than he had mentioned: he had stated
what proportion the appeals bore to the
decisions; and could any one suppose that,
if the business were so improperly trans-
acted, the number of appeals would not
be considerably increased? In point of
fact, however, the business at public
Meetings was generally of such a nature
that, without any inconvenience,
or three Commissions might go on at
the same time; because, if it should
turn out that the matter was one re-
quiring grave deliberation and discussion, it
was adjourned to a private meeting. He was
not going round about to avoid mentioning
the evils of this subject. He was shewing
that it was not inconsistent with the due
administration of bankruptcy that consider-
ing the nature of the business transacted
at Basinghall-street, three or four public

two'

' that one Commission is so complicated 'that it is difficult to do anything else: at the same time, when a large failure takes place, it is the practice to devote the meeting to it exclusively.' Then it

6

'the business to be done under Commis'sion A as well as B?' Under A it may happen that there may be nothing to be 'done; and, in that case, I may as well attend to another: it hardly ever happens that three Commissions at the same time have the same quantity of business.' He had now shewn, from the evidence of Mr. Roots, than whom a more experienced Commissioner did not exist, that more than one Commission could be attended to at once, and this shewed why the Lord Chancellor had not interfered. Before he left this part of the subject, he would shortly address himself to the number of meetings held under Commissions. Observations had been made on the temptations to which these gentlemen were exposed, to neglect a proper performance of their duty, and to increase the number of meetings, on account of the profits arising from them. It happened fortunately that they had the means of ascertaining the average number of meetings held under Commissions in London, and the result of that average at once precluded the possibility of the justice of any such observation. The number of London Commissions opened in the course of a year, taking an average of twelve years, was 650. The average income of the London Commissioners, derived from fees at meetings alone, might be safely taken at 26,000l. a-year; that sum divided among fourteen lists came to exactly 401. a Commission upon 650 Commissions, and 401. a Commission would give, as near as possible, thirteen meetings under every Commission; that was the average under London Commissions of a considerable number of years. Of those thirteen meet

meetings might be held at the same time; if this was not the case, and if this were an evil, whose fault was it? Why, it was the fault of the Lord Chancellor; and if any Commissioner should not think it worth his while to remain in a commission, inis your opinion that you can attend to respect of which he should be so occupied and so restricted, the numbers might, if necessary, be diminished and so reduced as to make these offices worth the attention of a sufficient number of competent individuals. He did not mean to defend the practice of taking several commissions at the same time; but if there was any practical mischief in it, it was for the Lord Chancellor to correct it. He would, while on the subject, trouble the House with the evidence given before the Chancery Commission by his learned friend Mr. Roots, known by most of them as a very experienced and judicious Commissioner of Bankrupts, who had been a Commissioner in the year 1825--when that gentleman gave the evidence to which he was about to refer-upwards of twenty years, and who had practised in the bankruptcy business in the Court of Chancery for a period now extending over a quarter of a century. He was asked, Would it not be a very material improve'ment to have the Commissioners distri'buted in such a manner as to ensure 'their attention?' His answer was, I do not think that, in general, such an ' arrangement could be made, so as to be productive of benefit, for one reason, among others, as I have already stated, 'that there is not enough business in each 'Commission to employ the whole of the 'Commissioners, and therefore one Com'missioner might sit for an hour and have nothing at all to do.' He meant to shew, before he sat down, that the new Judges to be appointed under this Bill would, during three-fourths of the year, have nothing whatever to do. The former gentleman stated, in answer to a question put to him, 'I doubt whether any very materialings, some were public and some private. benefit would arise from that, if the • Commissioners take care not to hold too 'many meetings together.' Then you 'think no improvement would result from that?' 'No; because it is but seldom that any Commission in itself requires so 'much exclusive attention, unless in an 'extraordinary case-the failure of a very large house, for instance, in the course of which you have most difficult matters 'to inquire into. But it is very seldom

Among the public meetings were included mere matters of course, the execution of the assignment, for instance, and other matters of that description, which were inevitable under all Commissions; therefore he was taking it at a fair calculation, when he said, that the average number of private meetings under every London Commission, did not exceed six, or at the utmost seven. Could the House consider this as a very large proportion, when the

great and important mercantile interests | know, that most eminent lawyers from the involved in the administration of London cominon-law Bar, who had come to preside Commissions were taken into considera- in the Courts of equity, and who, of course, tion? Could any man living say, that an were most competent to deliver an opinion, average of six or seven private meetings said, that highly as they valued Trial by under each London Commission was more Jury, invaluable as it was in this country than was proper? He really was surprised in some cases, yet in the majority of merand astonished when he received this cantile questions it was not the most satisinformation from authentic sources, to factory tribunal, because the verdict of a find that it was possible to transact such Jury was liable to be influenced by a important business with so small a number powerful advocate. He would not endeaof private meetings. What became, vour to deprecate Trial by Jury, but in such then, of the taxation and oppression of cases as these it was not necessary to private meetings? What of the argument extend the number of issues. The Bill, in with respect to those extraordinary cases the first place, established a Court in of twenty or thirty meetings under one Bankruptcy, to consist of four Judges, Commission? He had shewn to the who were to form a Court of Review, and House, that the average number of meet- were always to sit in public, "except as ings was six or seven; and considering otherwise directed by this Act," there being what this business was, and considering no such direction in any part of the Bill. that the whole expense of these meetings If this Bill should ever find its way into was so very small, was there any occasion Committee, there was no doubt that this for legislation on this point? There were part must be amended. All the jurisdicno practical grievances which could not tion in bankruptcy that was now exercised be remedied by an order of the Lord Chan- by the Lord Chancellor or the Vice-Chancellor; the expense was much less than it cellor, was given to these Judges. There had been stated to be; but it was again might be cases in which issues might be stated, as an objection, that in many directed most advantageously to the interinstances enormous masses of affidavits est of all parties concerned. At present, were thrown away, because the Court, country cases were tried at the nearest when it came to hear the case, declared assizes, and the witnesses being resident itself incompetent to decide it, and directed on the spot, of course the parties were not an issue to be tried; this, the hon. and put to any very great expense in bringing learned Gentlemen on the other side them before the Court; but under this new declared to be a case of frequent occur- Bill, on every petition in bankruptcy, rence. He would tell those hon. and whether it was in a country case or a town learned Gentlemen, and one in particular, case, the issue was to be tried by one of that this was a subject of which he could the Judges of this Court, in his own Court know nothing, never having practised in here, and nowhere else. Supposing this the Court. Out of 600 petitions set down part of the Bill were to remain in its prefor hearing in the course of a year, not sent state, he would beg to ask those hon. more than ten on the average were sent to and learned Gentlemen who talked of the a Jury. Really, anybody who had heard expense of the present system, whether the hon. member for Winchelsea, would they did not think the expense would be suppose that this enormous expense was increased to an enormous extent? This incurred in almost every case. In fact, was clearly a lapsus; but he could shew issues were only directed at all in those five hundred other points for the purpose cases where the Court, in endeavouring to of bringing under the consideration of the satisfy itself on conflicting evidence, thought House, the manner in which this Bill, by that justice might be better administered which the whole commercial law of the by that means, and where it did happen country was to be altered, had been brought that the questions to be investigated were forward, and on which Bill he was driven, of such a nature as to require the examina- at that late hour of the night, and at the tion of witnesses in open Court. It was very expiration of the Session, to address also said by the hon. and learned Gentle- the House. In addition to the Judges of man, that many questions ought to be sent this Court, there were to be three clerks to a Jury which were not now so disposed and a secretary appointed; and all costs of. He did not know on what ground this of suit between party and party in this argument might be founded, but he did | Court of Review were to be taxed by one

of the Masters in Chancery. So that this | Bill deprived of all knowledge and experiCourt was not even to tax the bills of its ence. He might be wrong, certainly, in own practitioners, but they were to be the view he took of some parts of this Bill, submitted to the revision of another Court. but so he understood them. The Bill then The mode of preventing both delay and went on to say, that the country Commislitigation was this. Commissioners were sioners should be selected by a Master in to be divided into two subdivision Courts Chancery, who was to exercise his discre- of course three in each, for the purpose tion as to fit and proper persons. It was of taking examinations, and questions not to be forgotten that this Bill gave the which were referred from a single Com- power of committal to country Commismission were to go to these Courts, unless sioners, that was to say, to country the Commissioners should think fit to attornies; and was it to be endured, that direct otherwise. What this otherwise the whole commercial law of the country was to be, nobody knew. These subdivi- was to be exercised in this way, by indision Courts might sit in public or private, viduals selected in this manner? The Bill as occasion might require; and the Act then proceeded to the enactment of a new directed that it should be lawful for one or oath to be taken by Commissioners in the more of these Commissioners to exercise country, and afterwards to a long and all the duties vested in the Commissioners laborious provision with respect to the of Bankrupts, provided always that the manner of proceeding, in case the banksingle Commissioner should have the rupt should dispute the adjudication. power to commit any bankrupt or other That if any trader adjudged bankrupt person examined before him, unless as 'shall be minded to dispute such adjudidirected by the Bill. Now, at present,cation, and shall present a petition praythree Commissioners had the power ofing the reversal thereof to the said Court committing a bankrupt. The Act, with a laudable anxiety for the liberty of the subject, provided that that should be the

case.

But the effect of this Bill would be, that one Commissioner could exercise that important duty which was now vested in three. This was most objectionable. The proceeding before Commissioners of Bankrupts at the present time, was well known and understood by the House. The Commission was in common use, and contained words to which successive times had applied a meaning; but this Act struck away the Commission, and produced something in the nature of a fiat, which no one could understand from the provisions of this Bill. It was enacted, that in every case in which the Lord Chancellor had power to issue a Commission under the Great Seal, it should be lawful for him so to do, and also for the Master of the Rolls, the ViceChancellor, and each Master in Chancery, and so on-in short, the effect of this provision was, to alter a power which, from the reign of Queen Elizabeth down to the present time, had been committed to the Lord Chancellor alone. At present, if there was the slightest doubt on the docket paper-the paper on which the Commission issues respecting the owing of the debt, and so on-it was submitted to the Lord Chancellor, but in future it was to be submitted not only to him but to those Judges whom the very principle of this

Third

VOL. VIII. {s}

of Review, such petition to be presented within two calendar months from the date of such adjudication, if such trader shall be then residing within the United Kingdom, or within three calendar months from the date aforesaid, if then residing in any other part of Europe, or within one year from the date aforesaid, if then residing elsewhere, &c.' A commission of bankruptcy was an ex parte proceeding, and a man might be made a bankrupt without having any previous notification of it. According to this Bill, although at the time of his being made a bankrupt he might be at the extremity of Russia in Europe-still he was to have no redress, if the adjudication was an improper one, unless he proceeded within the space of three months. A commission of bankruptcy might be taken out against a man the moment after he had sailed for India: he might be totally unaware even of the probability of such a thing occurring; the Commission might have been sued out under the most vexatious circumstances; yet, according to the provision of the Bill, if the adjudged bankrupt did not, within the space of twelve months-which, in most instances, would be impossibleinstitute proceedings in England to dispute the adjudication, he would be declared a bankrupt for ever. These considerations convinced him (Mr. Knight) of the necessity of considering the provisions of this U

'

6

said Court shall proceed with such lastmentioned examination, and finally, and without any appeal, except upon matter of law or equity, or of the refusal or the admission of evidence, shall determine upon such proof of debts. Provided always, that in case, before the said Commissioner, or Subdivision Court, both parties, the assignees or the major part of them, of whom one to be the official assignee, and the creditor, consent to have the validity of any debt in dispute tried by a Jury, an issue shall be prepared under the direction of the said Commis

Bill fully and minutely, and of the impropriety of proceeding with so important a subject at this hour of the morning. The next clause related to the power of the Lord Chancellor to annul the fiat. It provided That it shall be lawful for the Lord Chancellor, upon the reversal of any adjudication of bankruptcy, or for such other cause as he shall think fit, to order that any fiat issued by virtue of 'this Act shall be rescinded or annulled; and such order shall have all the force and effect of a writ of supersedeas of a Commission, according to the existing laws and practice in bankruptcy.' Thissioner or Subdivision Court, and sent for involved a direct contradiction to the pre- 'trial before the Chief Judge, or one or ceding provisions of the Bill-a contradic- more of the other Judges; and if one tion which it was perfectly impossible for party only apply for such issue, the said him to reconcile. At this time, however, Commissioner or Subdivision Court shall it would be vain and idle to dwell upon it.' decide whether or not such trial shall be Then, by the 23rd clause, an alteration had, subject to an appeal, as to such was proposed, for which a good reason decision, to the Court of Review.' Under might be given; but which, as at present this clause, every creditor would be informed, he was totally unable to under- driven to the necessity of either having stand the necessity of. The clause pro- his case tried before a Jury, or of having vided-That it shall be lawful for any it decided in the first instance by the • Commissioner, who shall make any ad- Subdivision Court, without any appeal. 'judication of bankruptcy, to appoint two The House would judge of the propriety of or more public meetings, instead of the such an enactment. By the next clause three meetings directed by the said it was provided-That if such Commis

6

mine any point of law or matter of equity, or decide on the refusal or ad'mission of evidence, in the case of any disputed debt, such matter may be brought under review of the Court of Review, by the party who thinks himself

' recited Act, for the bankrupt to surrendersioner, or Subdivision Court, shall deter⚫ and conform, the last of which said 'meetings shall be on the 42nd day by the said Act limited for such surrender.' Under the existing system three meetings of creditors were held. At the second, the assignees were chosen; and at the third, the bankrupt's accounts were inves-aggrieved; and the proof of the debt tigated. If there were to be but two to be but two meetings held, and no assignees chosen at that time, how were the bankrupt's accounts to be investigated? This was a point of importance, and deserving of infinitely more attention than at this time of the night it was possible to bestow upon it. The appointment of the official assignees belonged to a distinct head of observation, which he would pass by, and the next provision could, in his opinion, lead only to delay and expense. By the 34th clause it was enacted-That any one of the said six Commissioners may adjourn the examination of any bankrupt, or other person, to be taken either before Subdivision Court, or the Court of Review, or, if need be, before both Courts in succession, and may likewise adjourn ⚫ the examination of a proof of debt, to be heard before a Subdivision Court, which

a

shall be suspended until such appeal shall be disposed of, and a sum not ex'ceeding any expected dividend or divi'dends on the debt in dispute, in such proof, may be set apart in the hands of the said Accountant-General until such 'decision be made.' If there was any one proposition more generally acknowledged and acted upon than another in bank ruptcy, it was, that the Accountant General received no money. Sums were lodged in the Bank under his name, but he actually received none. That was a principle which the Bill would invade. By the next clause it was provided' That if the Court of Review shall determine in

any appeal touching any decision in matter of law, upon the whole merits of any proof of debt, then the order of the said Court shall finally determine the question as to the said proof, unless an