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If this plan be not adopted, there should be added to Lord John Russell's bill clauses somewhat similar to the 49th and 51st sections of the government bill, giving the county courts concurrent jurisdiction to adjudicate where the debts do not exceed £300 or £400. With this addition Lord John Russell's bill will probably be satisfactory to the commercial community in towns which do not possess bankruptcy courts at present. Here the inconvenience of attending the present courts is so strongly felt, that no measure will be acceptable which does not at the least give concurrent jurisdiction to the county courts after adjudication in the mode provided by this bill.
The question as to the propriety of retaining, in all cases, the service of the official assignee after the choice of trade assignee, is, as we have before intimated, materially affected by the provisions to which we have just alluded; and we do not see how, independent of other considerations, the present system can be conveniently continued if the creditors are allowed to remove the proceedings into the county court which is most convenient to them.
It is by parties who are concerned in cases which will be removed, that the strongest objections to the compulsory employment of official assignees are felt; and it will be of little use to allow them to transfer the proceedings, if they are compelled to employ an official assignee attached to the district court.
We do not wish, however, to consider the question upon this narrow ground alone.
Mr. Bond instances as one of the greatest evils of the present system—“That so much of the management and control of an insolvent estate is given to officials, and too little to the creditors or their trustees-the trade assignees.” And again he says, " that the official assignee system is an expensive mistake, and the sooner it is put an end to the better.”
Mr. Rayner takes the same ground at p. 15 of the useful reprint of his able articles in the Solicitors' Journal:
The most important question arises with reference to the future position and duties of the official assignee; but we need not discuss
this subject at any great length, as both the bills before parliament provide, in effect, that the creditors may, at their option, continue or determine the official assignee's services at the first meeting. The entire abolition of the office has been advocated ; but in this we cannot concur, as it is most important that there should be an officer of the court ready to step into the possession of the bankrupt's estate the moment after a ljudication. The official assignees are especially fitted to perform this duty, for which it is proposed to pay them £500 a-year, and such of them as are qualified and willing to act efficiently as trade assignees, will doubtless be elected in most cases by the creditors. It has been objected that the salary proposed is too small; but we understand that when the first batch of official assignees was appointed, they had no expectation of receiving more than £500 per annum for their whole duties as now performed, and we feel sure that nothing but their own disqualification or inaptitude for business will interfere to prevent their realizing incomes under the new act, equal to those now received by them.
At the first meeting the creditors are fairly entitled to choose a trustee or assignee, for the winding up and distribution of the estate, which is in reality their own, and we do not think it consistent with any sound principle to deprive them of this right. The bankrupt's property and assets can be more economically realized by such an assignee than by an official of the court, and nothing is easier than to make provisions for securing the estate, and its speedy administration. Under the old system these provisions did not exist, but we have never yet heard it contended that the estate was not more effectually and economically realized by trade assignees under the old law, than by an official assignee under the present system. The only inconvenience to be apprehended under Lord John Russell's bill, is, that it may give rise to a good deal of canvassing or touting, by those who are eligible to be appointed creditors' assignees, which we understand is the case in Scotland, but this may probably be avoided by electing the inspectors first (who would usually be the three largest creditors) and allowing them to choose the assignee. Great care must, however, be taken not to disturb the provisions for securing and speedily administering the estate, as it will furnish the strongest argument to the supporters of the present system, if the bill be in the slightest degree defective in this respect.
It appears to us that the most important aspect of the question is this:-Is it, or is it not, a sound principle of legislation, to insist upon the creditors employing an officer of the court, to get in and distribute assets which are in reality their own, and which they consider can be as effectually and economically realized and divided by a trustee or assignee of their own choosing ? Experience should decide the point. The authors we have quoted think the principle bad, and that it would be just as reasonable
to enact, that the Court of Chancery should appoint a dozen official receivers, and to insist that in every case parties should employ one of them, though they were satisfied that the duties to be discharged could be more efficiently performed by a person appointed by themselves. There is too great a tendency in modern legislation to appoint functionaries to do every thing for every body. Various objections to the above proposed alteration of the law have been propounded, amongst which we would notice those by Mr. Lawrance, who thus speaks on the subject of official assignees :
I consider the retention of these officers indispensable. There was no provision of Lord Brougham's Bankrupt Law Amendment Act, 1831, which was so loudly called for by the then existing state of circumstances, or which has worked so well, as that by which official assignees were appointed. It would be in the highest degree dangerous, by displacing those functionaries, to re-enact all the monstrous iniquities of the system which preceded their appointment. The appointment of creditors' assignee was in those days canvassed for with peculiar avidity, involving as it did the absolute control of the funds, and an indefinite postponement of a dividend.
The early returns made by official assignees show the enormous sums which the creditors' assignees retained, sometimes from cupidity, and sometimes from carelessness as to their appropriation, but in every case the creditors suffered severely from the non-distribution of the funds. 1
The following passage, in the report of the commissioners of 1853, is very significant upon the point we are now considering. “But when,” say the commissioners, “we bear in mind that large defalcations have occurred, and that the checks imposed have been inadequate to prevent them, we think that other and further regulations may be advantageously adopted, partly by extending the existing rules, partly by giving an additional control over the official assignee's receipts, and partly by ensuring a more vigilant application of the tests prescribed.”
The commissioners then advise the adoption of a series of rules for ensuring the safety of the funds in the official assignee's hands, and a more speedy administration of the estate, recom
1 Since the above letter was written, the writer has published his reasons in detail, for retaining the official assignees in all cases, (Vido Solicitors' Journal, p. 391.)
mending, amongst other things, that it be the duty of the creditors' assignee in all cases to examine the official assignee's accounts with his books and the bankrupt's balance sheet, and certify his examination and approval, or objections, to the Court.
It would almost appear from this, that, in the opinion of the commissioners, the official assignee can only be safely employed under the careful supervision of the creditors' assignee, which we think is any thing but a good reason for rendering the employment of the former compulsory. We must admit that a portion of the commissioners' report bears in favour of the maintenance of the office question ; but we must also recollect that the report was founded upon the evidence of witnesses resident in London, and on answers to questions received exclusively (with the exception of the Bradford Chamber of Commerce) from parties in towns, in which the district courts hold sittings, and by whom the inconvenience of the present system is least felt.
Those who advocate the abolition of the office of official assignees, urge that the court need not possess less control over the funds in the hands of a trade assignee than if they were in the possession of an official assignee; and that it is not likely that the individual profit of a paid trade assignee, will induce the creditors to take any course but that which is for their own greatest advantage. We do not, indeed, expect that the official assignee's services will be continued where the proceedings are removed to a county court at a distance, as they cannot conveniently act in such cases; but it will be their own fault if they are not chosen in nearly all other cases, as the interim management of the estate will give them an advantage over all other candidates.
If the present system of official assignees be changed, as proposed, the existing officers should be paid a liberal salary for the duties which they will personally be required to discharge in taking charge of the estate between the adjudication and first meeting, and such expenses as they may incur in obtaining assistance. If they are well qualified to act as creditors' assignees, they may rely upon being employed in the great majority of cases
for which they will be entitled to be paid; and from these two sources we have no doubt they will obtain an average income equal to the amount of their fees at present.
Mr. Lawrance, in the paper we have alluded to, has ably stated all the objections which can be urged against the proposed alteration of the law, but without inducing us to agree with him, or leading us to the conclusion that the provisions of the two bills do not place the subject upon a proper footing ; viz., that of allowing the creditors to elect an assignee of their own choosing at the first meeting, if they think that course more advantageous to their interests, than continuing the services of the official assignee.
Time has been now given by the dissolution for the consideration of the points raised on the reform of the bankruptcy laws. We trust it will be wisely employed to repel the combination of those interested in maintaining the proved abuses of the present system, and to insist on that course being followed by the legislature which is demanded by the declared wants of the commercial public.
ART. XIII. LORD MURRAY.
irreparable loss in the decease of this distinguished person. The Scottish Bench has been deprived of a most able, upright, and indefatigable judge; and the last of the celebrated body of contemporaries is gone which made Edinburgh famous in literature as well as in law. Of these the last whom we had occasion to lament was Lord Moncreiff, one of the greatest judges who ever appeared in any part of the island, and one who, before his elevation to the Bench, held a high rank in the Liberal party — the steady and consistent friend of civil and religious liberty, and the enlightened, because the temperate, supporter of all improvements in our jurisprudence. He had never, like Lord