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Scotland are not the same will surprise some of our readers; and may, in some instances, involve serious loss to a creditor on this side of the Tweed. The difference of principle here noticed arises, doubtless, from the law of Scotland looking at the debt of a partnership as, in its nature one of joint and several liability; whereas the law of England looks at such debt as in its nature one of joint liability only.
Section 47.—By this section, the bankrupt is entitled to the surplus remaining after payment of his creditors, and of the costs, charges, and expenses of the bankruptcy. This is quite right so far as it goes; and experience has disclosed that there is reason to believe that large sums of money as unclaimed dividends remain in the hands of trustees are never accounted for. Therefore this section should have proceeded to enact, that, in every case of bankruptcy, liquidation and composition, all sums in the hands of trustees after a certain period, and before their discharge, should be paid over to some public official, who would, on application to a court of justice, be liable to pay any unpaid dividends, and, after a certain date, to pay any balance in his hands towards the reduction of the national debt.
Section 49.—The discharge of the bankrupt is a point upon which much argument has been expended. By the present law, it may be given by the Court when the bankruptcy is closed, or at any time during its continuance with the assent of the creditors by a special resolution; but it cannot be given unless a dividend of 1os. in the pound has been, or might have been paid out of the property of the bankrupt, or unless the creditors declare that by circumstances for which the bankrupt is not responsible, the assets of the bankrupt have not yielded ios. in the pound. The bankrupt is also to be deprived of his discharge if he has made default in giving up his property for behoof of his creditors, or if a prosecution has been commenced against
him under the “Debtor's Act, 1869.” Amongst the proposals which have been made under this head, are: (1), that no discharge should be granted, unless by special recommendation of the creditors, until a dividend of 155. in the pound has been paid ; and (2), that no discharge whatever should be granted until all the debts are paid in full. It is certainly desirable that all should be impressed with the importance of satisfying their creditors' demands in full, and that as many obstacles as possible should be interposed in the way of allowing the law of bankruptcy to be made the means of dishonest men being released from their just debts, and of dissipating the property at their disposal, or within their reach, and leaving little or nothing for division amongst their creditors. There is nothing unreasonable in either of these proposals. Which of them should be adopted by the Legislature is more suited for determination by mercantile men than by lawyers. To raise the necessary dividend to the utmost extent possible as an essential condition for a discharge, is clearly in the interests of the general community. Turning to the Statistics of the Comptroller for 1876, Table 8th, it appears that, out of 554 estates closed in bankruptcy during the year, 82 yielded no receipts whatever, 192 with liabilities to the amount of £340,437, yielded £52,846 in gross receipts, and, after paying the sums necessary for carrying on business, and paying secured or preferential creditors in full, gave £17,403 as the balance for division amongst the general body of creditors, who, in consequence of the costs of realisation and distribution amounting to 96 per cent., or £16,705, of the assets, received no dividend whatever-and 278, with liabilities to the amount of £325,314, yielded, after paying for carrying on business, completing contracts, and secured or preferential creditors, as assets for division amongst the general body of creditors, the sum of £259,023, and after paying costs of realisation and distribution, had a balance of £194,439 available for division amongst the general body of creditors. These results are startling enough; but, as
regards one-sixth, no blame can be cast on the administration of the law of bankruptcy, and as regards nearly onefourth, the important fact is, that the costs of administration appear to be out of all proportion to the work done, and may well raise doubts in the minds of creditors how far any law of administration in bankruptcy can do them much good. Another fact disclosed by the 8th Table is that of those 278 estates paying a dividend, 247 did not yield ros. in the pound, and only 31 paid the dividend indicated by the Legislature as a conditional minimum for the discharge of the bankrupt. Again, of these 278 estates, 60 paid a dividend not exceeding is., 66 not exceeding 2s. 6d., 66 not exceeding 5s., and 38 not exceeding 75. 6d. With such figures, there is no difficulty in arriving at the conclusion that the estates administered under the law of bankruptcy are not favourable specimens of a satisfactory condition of commercial morality. The payment of higher dividends must be sought for in other measures than in the administration of the law of bankruptcy. Reckless speculation must be abandoned or severely punished; extravagant personal expenditure must be diminished, or a public stigma cast upon it; and the advantages of the public law of bankruptcy should be chiefly, if not exclusively, conferred upon those who have been overtaken by misfortune or unavoidable calamity.
Section 59.-The law of bankruptcy is administered by the London Bankruptcy Court for the metropolitan district, and, unless the proceedings are removed, by the District County Courts for the provinces. The judge who is to preside over the London Bankruptcy Court is a judge of the High Court of Justice, section 61; but he and the County Court judges have power to delegate their authority to the registrars of their respective courts. This power of delegation ought to be abolished. Where judicial work is to be done, it ought to be so by a judge, and none else. This delegation is a fruitful source of expense, in consequence of
the dissatisfaction of litigants, and the necessary multiplication of appeals. The extension of the jurisdiction of the County Courts to bankruptcy is well fitted to bring about a speedy administration of justice, and the chief amendment which requires to be made on this branch of the law is that the appeal from the County Court judge should not be, as now, to the Chief Judge in Bankruptcy, but to the Lords Justices of Appeal. This is an alteration proposed by the committee lately appointed to consider the working of the Bankruptcy Act, 1869, and would not impose much heavier burdens on the Lords Justices than the bankruptcy appeals impose upon them under the present system. The appeals to the Chief Justice in 1874 were 107.
Of these 22 were with- . drawn, and 21 were appealed from the Chief Judge. Consequently the probable extra number of appeals to be heard by the Lords Justices under the proposed new system would be 64. But further, a still more radical change is desirable in the administration of bankruptcy. What the County Courts are able to do for the provinces, the Metropolitan County Courts can do for the metropolis. The administration of the law of bankruptcy involves nothing peculiarly abstruse or recondite. The whole of it, so far as any special State supervision is concerned, ought to be reduced to the simple enforcement of the duties falling upon trustees in realizing the estates of the bankrupt, and dividing the proceeds amongst the creditors according to their several legal rights and priorities, and keeping statistics as to the results in bankruptcy proceedings. Any other organized State system is a mistake and blunder, and leads to useless, protracted, and expensive legal proceedings. Where the trustee does not act justly towards a creditor, or any other person having, or claiming to have, a right against the bankrupt estate, an appeal should be made, in all cases, to the ordinary Courts of Justice. In consequence of the peculiar facilities once afforded to creditors by the Court of Chancery in windingup estates, there seems to be some delusion in the minds of
a great many people that the Court of Chancery is the division of the High Court of Justice to which bankruptcy proceedings most appropriately belong. This is a great mistake; but, in this instance, as in most cases, after the cause or reason of a thing has long ceased, men act as if the old cause was still in existence. To what would these considerations necessarily lead ? Nothing more nor less than that the Chief Court in Bankruptcy should be abolished; that the County Courts should have jurisdiction in all cases within their jurisdiction; and that the High Court of Justice should have jurisdiction in all bankruptcy cases which did not fall within the jurisdiction of the Judges of the County Court. The Comptroller's General Report for 1876 shows that the adjudication in bankruptcy in the London County Court were 294, and in the County Court 682. Of the former, III were non-traders, and 183 traders : and of the latter, 129 were non-traders, and 553 were traders. These figures are worthy of consideration, both as regards the character of the bankrupts and the number of cases which would require to be dealt with if the Chief Court in Bankruptcy were abolished. Another interesting Table (6th) of the Comptroller's General Report shows the bankrupts' liabilities and assets for the year 1876. For the London Bankruptcy Court the liabilities were £1,896,028, and the assets £208,436, or the former were nine times greater than the latter; whereas, in the County Courts, the liabilities were £1,937,495, and the assets £309,917 or the former were only six times the latter. Almost all bankruptcies in Scotland are carried on before the Sheriff Courts, which, as regards bankruptcy, have as extensive jurisdiction as the County Courts in England, and as regards Civil Courts, a much more extensive jurisdiction; and there does not appear to be any reason to fear that the ex. tension of the jurisdiction in bankruptcy to the English County Courts, and the abolition of the Chief Court in Bankruptcy, would be followed by any more terrible