The Legal Observer, DIGEST, AND JOURNAL OF JURISPRUDENCE. SATURDAY, JULY 3, 1847. "Quod magis ad NOS Pertinet, et nescire malum est, agitamus." HORAT. ALTERATIONS IN THE JURIS-nishes another illustration of the absence of DICTION IN BANKRUPTCY AND consideration, and want of practical know INSOLVENCY. ledge, evinced by those who have unfortunately had sufficient influence to induce the legislature to adopt so many ill-advised THE bill proceeding through parliament, measures. The jurisdiction of the Court to abolish the Court of Review and alter of Bankruptcy, under the 8 & 9 Vict. c. the jurisdiction in bankruptcy and insol- 127, was in a great degree superseded by vency, has undergone several changes of the County Courts Act, (9 & 10 Vict. c. greater or less importance since its intro- 95,) which in effect confined it to cases in duction to the House of Lords. We have which judgment may still be obtained in now before us a copy printed by order of the superior courts, for a sum not exceedthe House of Commons on the 25th of ing 201. In those cases, under the present June, after the bill had come from the bill, the jurisdiction is divided between the House of Peers. The fourth section is Court for the Relief of Insolvent Debtors altered and remodelled in various particu- and the County Courts, in the same manner lars. The mistake noticed in our last num- as the jurisdiction in insolvency. One re ber, (ante, p. 187,) of transferring the juris- sult produced by this arrangement is some diction in bankruptcy in cases where a fiat what anomalous. The judges of the County issues on the petition of the trader, under Courts are entrusted with a power-which the 7 & 8 Vict. c. 96, s. 41, has been cor- the judges of the superior courts are exrected, by confining the transfer of jurisdic- pressly deprived of,-to give effect to the tion to so much of the recited acts as re- judgments of the superior courts by comlates to "matters of insolvency." On the mittal. The judges of the superior courts other hand, a provision has been introduced may be called upon to discharge a debtor into this section transferring the jurisdic- who has been arrested upon a judgment tion and authority of the Commissioners of obtained in one of the superior courts for the Court of Bankruptcy under the Small a debt not exceeding 20%, but they have Debts Act, (8 & 9 Vict. c. 127,) to the no power to order such a debtor to be deCourt for the Relief of Insolvent Debtors tained in custody. The judges of the and the judges of the County Courts; and it is provided that the provisional assignee of the Insolvent Court, and the Clerk of the County Court, shall be and act as the official assignee of the estate and effects of the insolvent. The transfer of jurisdiction under the Small Debts Act seems to have been an afterthought, and the manner in which it is sought to be carried out in this bill furVOL. XXXIV. No. 1,008. County Courts, however, have authority under this bill, conjointly with the 8 & 9 Vict. c. 127, to commit a debtor, against whom judgment has been signed in one of the superior courts for a debt under 20%., for any period not exceeding forty days. An easy method of evading the penal consequences, and defeating the operation, of the 8 & 9 Vict. c. 127, is, we presume, unintentionally suggested by the provisions L 210 Alterations in the Jurisdiction in Bankruptcy and Insolvency. of the new bill. The 8 & 9 Vict. c. 127, sioner of the said court for the relief of insolv- "That from the time this act shall commence and take effect, the Court for the Relief of Insolvent Debtors in England, and the commissioners thereof, and the judges of the county courts aforesaid, shall have jurisdiction in all matters of insolvency and debt under the aforesaid act, in manner following; (that is to say,) the said court for the relief of insolvent debtors, and the commissioners thereof, in all cases in which the insolvent, in cases of insolvency, or the defendant, in the case of any summons issued under the aforesaid act for the better securing the payment of small debts, shall have resided for six calendar months next immedi If this clause stood, without any further provision, the difficulty suggested as to summonses issued against judgment debtors, under the 8 & 9 Vict. c. 127, would exist with respect to insolvent debtors. An insolvent who did not reside in one place for six months next preceding the date of his petition, would not have a locus standi as an insolvent petitioner in any court. This appears to have been foreseen, and is attempted to be provided for, though we will not take upon us to say effectually, as regards insolvent debtors, by the 7th section, which is in these words: "Provided always, That if any such insolvent shall not have so resided for six months in any one place as aforesaid, then the jurisdiction either in the court for relief of insolvent debtors aforesaid in matters of insolvency shal be vested in London, or in such one of the said county courts as the said court for the relief of insolvent debtors shall from time to time order." There is no similar provision, nor any ately preceding the time of filing his petition, other provision, as to the jurisdiction under or of the suing out of any such summons afore- the Small Debts Act, and, as already said within the counties of Middlesex or Hert- stated, the consequence will be, if the bill ford, or within such parts of the counties of passes in its present form, that a judgment Kent, Surrey, Sussex, and Essex as do not ex- debtor under 201., who accidentally or inceed the distance of 20 miles from the General tentionally changes his place of domicile Post-office, to which district the jurisdiction of the said court and the commissioners thereof so as not to reside at any time for six under the aforesaid acts is hereby restricted, months in any district, will be altogether and the judges of the county courts aforesaid, exempted from the operation of the act, in all cases wherein the insolvent or defendant Why a fraudulent or contumacious debtor, shall have resided elsewhere, and shall have re- shifting his place of residence, should be sided for six calendar months next immediately placed in a more favourable position, and preceding the time of filing his petition, or the not subjected to the punishment that awaits suing out of any summons within the district of the judge of the court to which such insolvent one who is not of a migratory habit, those shall prefer his petition, or to which any plain- who have framed the bill can best explain! tiff may apply for any summons as aforesaid, The latest edition of the bill retains the and that every commissioner of the court for clause (numbered 11) authorising the Lord the relief of insolvent debtors, and every judge Chancellor to give directions for sittings of of the county courts aforesaid, shall, from and the Court of Bankruptcy elsewhere than in after the time this act shall commence and take London, although a similar authority is aleffect, have and exercise, in the prosecution of such petitions and summonses filed and issued ready conferred upon that functionary, in in such courts respectively, the like power and nearly the same words, by the 7 & 8 Vict. authority in all respects under the aforesaid c. 96, section 44. It is more remarkable, acts as the commissioners of her Majesty's and much more objectionable, that no proCourt of Bankruptcy and district courts of vision is introduced to avoid the palpable bankruptcy have heretofore had and exercised, absurdity already pointed out, (ante, p. 186,) on the presentation of petitions of the insolvent of calling upon the Commissioners for the debtors, and on such summonses as aforesaid Relief of Insolvent Debtors to administer Ewder such acts, except as hereinafter otherwise provided, and shall each of them, singly, be two distinct, and in some respects, adverse, and form a court for every purpose under this systems of Insolvency Law under the same or the aforesaid acts; and that every commis- roof, and it may be within an hour, the in Illegal Commitment under the Small Debts Act. 211 solvent petitioner being left to select which not exceeding forty days, to the common system he most approves of, and the court gaol, &c. having no voice in the selection. A person named Townley, having recovered a judgment for 197. 19s. in the Sheriffs' Court of London, against Thomas Kinning, summoned him under the section above referred to, before Mr. Bullock, the judge of the court, and it appearing to that learned gentleman that the defendant was in a situation which enabled him to pay the debt and costs by instalments, an order was We are glad to observe, from various articles which have appeared in the daily prints, that this measure begins to attract public as well as professional attention, in some degree proportioned to its importance; and we still indulge the hope, that its glaring defects and omissions may be discovered in sufficient time to prevent the mischievous consequences to be appre- accordingly made, in the usual form, for hended from giving it precipitately and inconsiderately the force of law; and that the whole subject may be allowed to stand over until an opportunity arrives for mature deliberation. ILLEGAL COMMITMENT UNDER THE SMALL DEBTS ACT. payment by instalments of 21. per month, and the defendant having made default in the payment of the first instalment, this same learned judge made an order for he commitment to Whitecross Street prison, for the space of forty days from the time of his arrest. The gaoler's return to the habeas corpus set forth the warrant of commitment by the judge of the sheriff's court, and it was THE Case Exparte Thomas Kinning, urged on behalf of the prisoner, that the brought under the consideration of the commitment was bad, because it did not Court of Queen's Bench, and subsequently appear on the face of the warrant that the of the Court of Common Pleas, by habeas defendant had been summoned previous to corpus, during the last term, affords an- his commitment to show cause why he other remarkable example of the total should not be committed. It was conceded, absence of ordinary foresight exhibited by that if the order for committal was to be those who undertake the duty of framing regarded in the nature of a judicial promodern acts of parliament. ceeding, it was invalid, because it did not The statute 8 & 9 Vict. c. 127, "for appear that the defendant had an opportubetter securing the payment of small nity of being heard aganst it; and the condebts," our readers will recollect, passed tention was, whether the judicial discretion towards the close of the session of 1845, was not completely exercised when the and was generally understood as intended defendant came before the judge on sumto afford a compensation to the smaller mons in the first instance and the latter class of traders, for the protection of which ordered payment of the debt by inthey were suddenly deprived, by the act stalments. of the previous session, abolishing arrrest The Court of Queen's Bench was divided in execution for debts under 20l. The upon the question thus raised; Lord first section of the Small Debts Act pro- Denman and Justice Erle being of opinion vides, that a creditor obtaining judgment that the return was sufficient, whilst Pattein respect of a debt under 201., may sum- son, J, and Coleridge, J., were of an oppomon the debtor before a Commissioner of site opinion. Lord Denman and Justice Bankrupts, or the judge of any Court for Patteson both remarked upon the looseness the Recovery of Small Debts, within the and uncertainty with which the act was jurisdiction of which the debtor may reside, drawn up, and the latter pointedly observed, and on the debtor appearing he may be that the person who framed the statute examined as to his property or means of evidently had forgotten that when a debt payment, and it shall be lawful for such was ordered to be paid by instalments, the commissioner or judge to make an order on period fixed for payment of the last instalthe debtor for the payment of his debt by ment might be at a considerable interval instalments or otherwise, and if he appears after the making of the order, and that to have the means of paying the same by many circumstances might arise in that ininstalments or otherwise, and shall not pay terval which would enable the debtor satisthe same at such times as the commissioner factorily to account for his default. As or judge shall order, then it shall be lawful the Court of Queen's Bench was equally for such commissioner or judge to order divided on the matter, the prisoner was such debtor to be committed for any time, remanded by that court; but the case was 212 Illegal Commitment under Small Debts Act.-House of Commons Costs Taxation Bill, brought immediately afterwards, by habeas | serting legal principles, because their ap corpus, before the Court of Common Pleas, plication might be attended with some inand the judges of that court unanimously convenience. In such cases it is the proagreed with Justices Patteson and Cole- vince of the legislature to find a remedy ridge, that the committal was bad, mainly for the evil. upon the ground disclosed in the judgment of those two learned judges, that the order TAXATION BILL. THIS bill has been amended in the following particulars :— 1. The retrospective provisions are omitted, and it will now operate only on the business of future sessions of parliament. to imprison was a judicial act, involving THE HOUSE OF COMMONS COSTS two questions,-1st, whether the defendant ought to be imprisoned? and 2ndly, if he ought to be imprisoned, whether it should be for forty days or any shorter period? It was not consistent with the general principles of law that questions of such importance, in which the subjects' liberty was concerned, should be determined without affording the party more immediately ininterested an opportunity of being heard. Upon these grounds the return to the habeas corpus was held to be insufficient, and the prisoner was ordered to be discharged from custody. 2. As the bill was originally brought in, a taxation was to take place in every instance. The client, however well satisfied with his solicitor, was compelled to incur the expense of taxing his bill. This has been altered. 3. The authority to the Speaker to appoint a taxing officer remains, with power to the Speaker to prepare a list of charges to be the utmost charges thenceforth to be allowed upon any such taxations in respect of the several matters therein specified. But the following addition has been made : “Provided always, that the said taxing officer may allow all fair and reasonable costs, charges, and expenses, in respect of any matter not included in such list." 4. The power to call for books and papers is also retained. But the power to take a general account has been expunged. Justice Erle, in his judgment, adverted to the importance of the question raised in "Kinning's case," inasmuch as a provision was to be found in the County Courts Act precisely corresponding with the first section of the 8 & 9 Vict. c. 127, and if the committal in "Kinning's case was bad, committals by the order of the judges of the County Courts, would be open to a similar objection. As a majority of six judges to two have determined that the committal in "Kinning's case" was invalid, it follows that when a judge of the County Court orders the payment of a 5. No application to tax can be enterdebt by instalments, and there shall be a tained after verdict, nor after the expira default of payment, the judge will not be tion of six months from the delivery of the authorised to make an order for the im- bill of costs. But the Speaker is em prisonment of the defendant, until he is powered, after the expiration of the six again summoned to show cause why he months, if he shall think fit, on receiving a should not be imprisoned, and as we have report of special circumstances from the already seen, the summons in such case taxing officer, to direct a bill to be taxed. will not be effectual, unless it has been 6. An appeal from the taxing officer is personally served on the defendant. There given by memorial to the Speaker within is no doubt that the effect of this decision 21 days after the taxing officer's report; and will be, to diminish the efficacy of the the Speaker may refer the report back to cheap and summary method of adjudication the taxing officer. No other appeal is in respect of small debts contemplated by allowed. the late acts of parliament. We cordially 7. The report of the taxing officer, with concur, however, in the sentiment so well the Speaker's certificate thereon, is to be expressed by Justice Coleridge, in Ken- conclusive as to amount, and to have in any ning's case, that a deliberate and careful action the effect of a warrant to confess investigation must always necessarily be judgment, unless the party charged shall attended with some expense, and that the have pleaded that he is not liable, in which courts ought not to be deterred from as-case the certificate is to be conclusive as to the amount which shall be payable by the See 9 & 10 Vict. c. 95, sections 98 to 101 defendant in case the plaintiff shall recover inclusive. a verdict. Vide Leg. Obs. vol. 33, p. 459. Many of the objectionable provisions in |