Lord Chancellor power to issue a commission to such persons as to him shall seem fit, who are to take the same order and direction, both with the bankrupt's person and estate, as is specified in the former statute; and by Section 135., if there is no Lord Chancellor, then all powers and duties, given to and directed to be performed by him, are in that case to be performed and exercised by the Lord Keeper, or Lords Commissioners, of the Great Seal. To every person (says Sir W. Evans, in his Letter to Sir Samuel Romilly on the Revision of the Bankrupt Laws (1),) who compares the very few provisions in the statute book respecting this extensive jurisdiction, with the numerous cases in the books of reports upon the exercise of it; who compares the terms in which the authority is given, with the extent to which it is carried; —it must be an obvious remark, — that never, upon so narrow a basis, was there erected so large a superstructure of authority, undefined, exclusive, and without appeal. But a considerable part of this authority, as well, indeed, as of the present jurisdiction exercised by courts of equity in a variety of subjects, may be traced (as that learned writer observes) to the principle, that every court is conclusively the judge of its own contempts; and, therefore, when any authority is assumed, and the disobedience of it is treated as matter of contempt, the consequence is, an indirect power of legislation, which no other tribunal is competent to control. This principle, however, which in its nature is so very susceptible of abuse, has been in general applied to beneficial purposes; and the Chancellor's jurisdiction in bankruptcy appears now to have been fully recognised by repeated acts of the legislature, as well as by a long series of judicial decisions. (2) (1) Page 182. (2) Mr. Christian (vol. ii. 212. 226.) refers great part of the Chancellor's jurisdiction in bankruptcy to the mere influence of recommendation and advice, and the indirect control which he possesses over the commissioners, by means of his patronage, and his power of refusing to insert their names in other commissions: this the learned author consequently ed with a lor. It has been remarked by Lord Eldon, in some of those Bankrupt able judgments (1), which form now a complete code in this laws frambranch of our law, that the different statutes relating to view to the bankrupts seem to have been framed, with a view to the ordinary authority with which the Lord Chancellor is entrusted in tion of the jurisdicthe exercise of his ordinary jurisdiction; and that when Chancelthose statutes were silent, as to the mode of compelling obedience to the orders that might be necessary for carrying their provisions into effect, the practice has been to enforce it by the general jurisdiction of the Court of Chancery, without which the objects of a commission of bankrupt could not in many cases be thoroughly attained; and this practice, the same noble and learned Judge has declared it to be his conviction, was perfectly consistent with the intention of the legislature, in giving the jurisdiction it has done to the Chancellor in Bankruptcy. Indeed, it has been laid down in many cases, that an order of the Lord Chancellor in Bankruptcy is analogous, though not equal, to a decree of the Court of Chancery. (2) actions re the bank ruptcy. This summary jurisdiction of the Lord Chancellor is, Confined however, confined strictly to transactions relating to the to transbankruptcy; that is to say, to those arising between the lating to bankrupt, or the assignees, and the creditors who have come in under the commission. The Lord Chancellor, therefore, sitting in Bankruptcy, cannot upon petition adjust any demands that one assignee may set up against another, concerning a private agreement between themselves, and not affecting the rest of the creditors. (3) Neither can he infers to be, and designates, as a recommendatory jurisdiction, as distinguished from the mandatory jurisdiction expressly given by statute. But though this influence night operate in derogation of the power of the commissioners, it does not seem so very clear how it could increase that of the Chancellor, who, before he was enabled by the 13 Eliz. c. 7. to delegate a part of his authority to the commissioners, was clothed with more ample (1) 14 Ves. 451. Ex parte Brad- (2) Flower v. Herbert, 2 Ves. 326. Ex parte Cowan, 3 B. & A. 129. (3) Per Lord Hardwicke in matter of Earl of Litchfield, 1 Atk. 88. But any thing necessary to the question of proof, gives him jurisdiction. Power to send a case or direct an issue. compel the assignees to perform an agreement respecting a distribution of the bankrupt's property under a composition deed. (1) And so in recent cases, where certain parties were ordered to pay costs in Bankruptcy, and some of them paid the whole costs, it was held, that the Chancellor had no jurisdiction in bankruptcy to order contribution from the rest of the parties,—that being a question altogether collateral to the bankruptcy, and the proper subject of an action at law, or a bill in equity for an apportionment. (2) And where the bankrupt had deposited with A. the title-deeds of premises which he had previously mortgaged to R. and Co., and after the bankruptcy it was agreed between R. and Co., A., and the assignees, that the assignees should sell the premises, and apply the proceeds in payment of R. and Co. and A., and the solicitor of the bankrupt claimed a lien, on petition, by deposit of the titledeeds prior to A.,—it was held, that there was no jurisdiction in Bankruptcy to determine the priority of this lien, as it was a question in which the estate of the bankrupt had no interest; it being quite immaterial to the general creditors, whether the surplus produce of the property mortgaged was applied to pay the particular debt of A., or the particular debt of the petitioner: and it was also held in this case, that A. was not precluded from objecting to the jurisdiction, by filing affidavits as to the merits. (3) Any thing, however, that is necessary for the Chancellor to decide, in order to the question of proof of debts under the commission, will give him jurisdiction. (4) The Lord Chancellor has power also, when difficult questions of law are found to be involved in a petition in Bankruptcy, to send a case for the opinion of a court of Law; or if a difficult question of fact occurs, then to direct an issue to try any litigated point between the parties, or (1) Ex parte Barfit, 12 Ves. 15. J. 4. (3) Ex parte Allison, 1 G. & J. 210. (4) Ex parte Rowton, 1 Rose, 19. an action to be brought by one against the other. (1) So he may in a matter of importance direct a bill in Chancery to be filed, in order to ascertain whether a debt is due or not (2); for, though he has no more power on a bill than on a petition, yet, in some cases, it is better that questions of importance requiring solemn discussion should be brought before the Court by way of bill; there being an appeal from his decision in this form of proceeding to the House of Lords: and Lord Hardwicke said, it was sometimes necessary to adopt that mode to settle the demands of creditors. (3) The jurisdiction of the Lord Chancellor in Bankruptcy Jurisdicis both legal and equitable (4); but this arises more from tion both legal and long practice, perhaps, than from any precise authority on equitable. the subject. And his determinations, as it seems, are guided now, not as Lord Hardwicke once said, by way of analogy to the usual and ordinary proceedings of the Court of Chancery (5), but by certain established rules and principles of equity, which have been adopted in proceedings in bankruptcy, and are deduced from the powers that have been from time to time vested in him by the legislature. The whole of the proceedings in Bankruptcy, (observes Lord Eldon, who distinguishes them from the other proceedings of the Court,) begin in transactions upon oath; the trading, the debt, the act of bankruptcy, and the proceedings before the Chancellor, are always originally on affidavit. It is always in the discretion of the Court, (his Lordship adds,) upon an issue, to direct the petitioning creditor, or the bankrupt, or any other party to the petition, to be or not to be examined; and if it requires the jury to have before them, what the Court had (1) Ex parte Cottrell, Cowp.742. Ex parte Gulston, 1 Atk. 159. (2) Clarke v. Capron, 2 Ves. jun. 666. (3) Bromley v. Gooderc, 1 Atk.76. Hankey v. Garratt, 1 Ć. B. L. 2. Curtis v. Ashton, ibid. (4) Ex parte Dewdney, 15 Ves. 496. Ex parte Hanson, 12 Ves. 348. Ex parte Roffey, 19 Ves. 469. Ex parte Hilton, 1 Jac. & W. 470. (5) Ex parte Mathews, 5 Atk. 817. Jurisdic tion over the com ment, and remove as signees. Cannot discharge a summary application. before it, it is usual, in order to elucidate the matter, to direct the parties to be examined. (1) The Chancellor has jurisdiction to control the conduct of the commissioners in all matters, where the legislature missioners, has fixed no certain time for acts to be done by them; he to suspend has, therefore, power to suspend the execution of the asthe assignsignment after assignees have been chosen; and he has also power to remove the persons nominated by the creditors as assignees, even before the assignment is executed. (2) But though an appeal, generally speaking, lies in all matters of Bankruptcy from the determination of the commissioners to the Lord Chancellor by petition (3), yet if the commissioners commit a bankrupt for not answering a bankrupt when com- to their satisfaction, the Lord Chancellor cannot upon a mitted, on summary application, sitting in Bankruptcy, discharge him; but the mode of proceeding must be by habeas corpus, which writ the Chancellor has authority to issue in the vacation time (4); and upon the return to which, the Lord Chancellor, not under the bankrupt law, but as a law officer, will then review the conduct of the commissioners the same as any other Judge. (5) The Chancellor has, also, no authority to compel the commissioners to declare a party a bankrupt; he has only power to order them to proceed in their judgment. (6) And though the Chanbankrupt. cellor may order a bill to be filed for certain purposes in bankruptcy, yet, upon a bill filed by the assignees against a creditor after a dividend, to have the proof of the debt expunged, the Chancellor cannot, in this mode of proceeding, reverse the order of the commissioners; for the proper course to do this is, not by a suit in Chancery, but Nor compel the commis sioners to find the party a Nor re verse the order of the commissioners by bill. (1) Ex parte Heywood, 1 Rose, 45.; and see Ex parte Smith, 19 Ves. 473. (2) Ex parte Shaw, 1 G. &J.127. question; and said, that he remembered a similar case before Lord Chancellor King in Bankruptcy, who, after he had taken some time to consider of it, determined the commitment of the commissioners to be justifiable. Ex parte Lingood, 1 Atk. 242. (6) Ex parte Perrin, Buck. 510. |