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in their character of Commissioners, and not as barristers (a).
If the Commissioners refuse to execute the order of reference made by the Court of Review, I am not aware that I have any jurisdiction to compel them; although it is not to be doubted that such authority must reside somewhere(b). The Commissioners have suggested, that it is contrary to public policy (c) to call upon them to execute these Orders; but, with the greatest respect for the Commissioners, I must beg to differ entirely from them on this point, and his Honour the Chief Judge is of the same opinion with myself.
upon the petition of Michael Bousfield, whereby we were directed to inquire and state to his Honour, whether at the time of the bankruptcy of the said Thomas Eastman there was any joint estate of the said Thomas Eastman and Duncan Hunter in the said petition named, and of what it consisted : and by which we were authorized to state to his Honour any special circumstances which in the course of our inquiries and in our judgment we should think necessary for his Honour's information in this matter; we have proceeded to make inquiries and do humbly certify, that we have been attended by the solicitors for the several parties interested, and having examined witnesses upon oath, and perused certain documents laid before us touching the matters referred to us, do find,” &c., " And we humbly certify to your Lordship that we are of opinion that there was not at the time of the bankruptcy of the said Thomas Eastman, and that there is not now, any joint estate of the said Thomas Eastman and Duncan Hunter, unless the proof of the debt of 4611. 12s. 6d., so made under the said commission of Robert Rainey as aforesaid, can be considered to be joint estate.
(6) Quære, does not such authority reside in the Court of Queen's Bench, which has the power to issue a mandamus to any person, or inferior Court, requiring them to do some particular thing therein specified, which appertains to their office and duty, and which is consonant to right and justice ? See 3 Bla. Com. ch. 7. p. 110.-E. E.D.
(c) See Mr. Fonblanque's statement, ubi suprà.
Ex parte STEWARD.
A memorandum of the Lord Chancellor's opinion was entered in the Secretary's book as follows:
“ Upon the application of Mr. Koe, stating that a Commissioner of Bankruptcy declined to execute an Order made by the Chief Judge of the Court of Review,
“ The Lord Chancellor gave it as his decided opinion, that the reference ought to be executed by the Commissioner; that the reference is made to them, not as barristers, but as Commissioners appointed to act in the same way, in all cases, as the Commissioners appointed in Lord Eldon's time acted under such references. His Lordship considered that they were bound to act as required, but that he had no power to oblige them. In confirmation of his opinion, his Lordship referred to the references and forms of the former Orders, and the returns of the Commissioners."
On the case being mentioned this day to the Court of Review,
11844. Feb. 20.
VICE-CHANCELLOR KNIGHT BRUCE, C. J. made the following observations :
Soon after my appointment to be a member of this Court, a question was suggested as to its jurisdiction to direct references to the Commissioners; and I learned with surprise, that references had been directed by the Court of Review to Mr. Ayrton, one of the Registrars of the Court, instead of the Commissioners. I thought, as I still think, that the Orders of reference ought to have been directed to the Commissioners, and not to Mr. Ayrton ; not because I doubt the entire competency of that gentleman to perform such duties, for I believe him to be in all respects fully competent,--an opinion that is augmented and strengthened by daily experience of his
ability and learning; but because I think the matter properly within the cognizance of the Commissioners, and not within the scope of the office of Registrar; nor, however willing he might be to undertake it, does it form any part of the duties of the Registrar. I acted accordingly. The London Commissioners however, it appears, entertained a different opinion, and while some executed Orders of reference made by me, and some did not, all of them agreed in theory. Some public inconvenience was felt in consequence. At last, this petition in the matter of Blake brought the question before me, in the shape of a complaint against one of the Commissioners for not having executed an Order of reference. Having considered the case, and referred to the late act (a), as well as to the act of the 1 & 2 Will. 4. c. 56., I felt that, even if disposed, I had no power to enforce the execution of Orders of reference by the Commissioners. I also did not see, the law standing as it now does, that the Lord Chancellor had any such power; yet feeling the importance of the question to the public, and to the Commissioners themselves,as if they were wrong, their refusal to act might cause a forfeiture of their office (without the interference of parliament) by the ordinary course of law, by information, or scire facias (b), or otherwise,--and thinking of the subject with the most perfect respect for their offices, I took the liberty of requesting the Lord Chancellor to hear the petition, instead of myself, by reason of the much greater weight of his opinion. A few days ago his Lordship stated his opinion, which is entered in the Secretary's book, and which I will now read. (His Honour then read the above memorandum (c) from the Secretary's book.)
(u) 5 & 6 Vict. c. 122.
(6) The authorities referred to in 5 Com. Dig. tit. “Officer," (K. 2.) (K. 3.) (K. 11.) (K. 13.) seem to be in perfect accordance with this part of his Honour's judgment.-E. E. D.
(c) Soe ante, p. 411.
Ex parte SAMUEL RIDLEY and others. In the matter of EDWARD KNIGHT.
Nov. 6. This was a petition of various creditors of the bank- Where the
Commissioners, rupt, for the payment of their respective dividends.
at a meeting to
audit the acThe fiat issued on the 9th June 1840.
counts of the On the 2nd December 1840 a first dividend of 8s. in assignees and
declare a divithe pound was declared, the amount of which had been dend, found a
certain sum to duly paid to each of the petitioners.
be in the hands
of the assignees, On the 2nd June 1842, at a meeting of the Commis- and declared a
dividend acsioners for the purpose of auditing the accounts of the cordingly;
semble that each assignees and declaring a further dividend, the accounts of the assignees
is liable for the of the assignees were audited, and the Commissioners payment of the then found a balance of 4091. 3s. in the hands of the though the prin
dividend, alassignees to be divided, which sum was sufficient to pay that purpose
cipal fund for the creditors who had that day proved their debts the had been re
ceived by and amount of the former dividend, and also a further divi- was then in the
hands of only dend of ls. 13d. in the pound upon their several debts ; one of the as
signees. and the Commissioners then declared a final dividend If an assig.
nee objects to of ls. 13d. in the pound.
be so charged
with money in In September 1842 the petitioner Ridley applied to the hands of
his co-assignee, Mr. Mackey, one of the assignees, for the payment of he should state this dividend; but neither he, nor any of the petitioners, the Commis
his objection to
sioner at the had yet been paid it.
audit, and not On the 12th October 1842 a circular letter was sent lie by, until a
petition is preby the solicitors of the assignees to the several creditors sented for ine
payment of the resident in or near London, who had proved under the dividend. fiat, to the following effect:
" Wardrobe Place, Doctors' Commons, 12th Oct. 1842.
“ Re Wright, a bankrupt. “ Sir.-We beg to inform you, that a final dividend of ls. 1 d. in the pound was declared under this estate
on the 15th June last, which still remains in the hands
" Newbon and Evans."
On the 14th October 1842, the petitioner, Samuel Ridley, accordingly applied to Mackey for the dividend due to him, but without effect; and on the 23rd October 1842, Mackey sent to the petitioner Ridley the following letter :
“ Mr. Mackey presents his compliments, and is sorry that a severe illness during the last week has prevented his attending to the dividend matter, In re Wright; but he begs to assure Mr. Ridley, that his dividend, as well as the others unpaid, will be remitted in a day or two, as soon as Mr. M. is able to look through the papers.
“ Saturday evening, October 23rd, 1842.”
The petition alleged, that Ridley had since frequently applied to Mackey for payment of his dividend, as well as to Harding the other assignee, without being able to obtain the payment of it.
On the 28th April 1843, the Commissioner in London, to whom the fiat had been transferred under the 5 & 6 Vict. c. 122., held a sitting in this matter for the purpose of auditing the accounts of the assignees; when Mackey was examined before the Commissioner, and at his request the Commissioner adjourned that sitting, for the purpose of enabling Mackey to make out and render an account of the monies in his hands in respect