thereof, and the rents and profits of the estate (s. 30); and even in matters pending at the passing of the Act, the Creditors' Assignees are obliged to deliver over every thing whatsoever in their possession and custody, as such, to the Official Assignee upon his appointment, and at that moment the estate vests jointly in him and them together (s. 33), yet until the appointment of the Creditors' Assignee, he can act alone as fully as both can afterwards act jointly, even so far as selling the estate, if so directed by the Commissioner. (s. 34.)

The sections of the recent statute more particularly referring to the Official Assignees and their duties, are ss. 28 to 37 inclusive, which see, and notes at foot thereof.

The above are the principal points of practice respecting the duties of the Official Assignee, as far as regards the suitors in court. There are many other points which are entirely for his own guidance; and the reader is referred, for greater accuracy, to the Rules themselves, which are published herewith. It would be difficult to enter more minutely into the different subjects comprised in them, without recopying the entire of the 40 Rules.

THE CREDITOR'S ASSIGNEES.

By Rule 39 the Creditor's Assignees are declared not to be in the slightest degree exonerated from any part of their duty as such, and especially from that of exercising a general superintendence over the whole of the proceedings, and of making the estate available for the benefit of the Creditors.

Time and mode of choosing.]-It will be seen, on reference to page 62, supra, that upon the Commissioner "adjudging" the party a Bankrupt, he is to "appoint two or more public sittings for the Bankrupt to surrender," under 6 W. IV. c. 14, s. 38, Ir. By s. 72 of same act, the choice of Assignees shall take place at the first of these sittings. This election of Assignees is sometimes a matter of mutual agreement, and no difficulty occurs about the appointment. At other times there may be a considerable contest. When it is contested, care should be taken to see that no Creditor votes who is not properly qualified. The Statute declares that all Creditors, who have proved debts to the amount of £10 and upwards, shall be entitled to vote, (s. 38 above); and they may vote by proxy, provided the proxy be authorised by letter of Attorney, and the execution of the letter be proved on oath or by affidavit, as the case may be, (see s. 38); and the choice shall be by the major part in value of the Creditors so entitled to vote, (same s.) This choice is subject to the Commissioner's veto, and they must continue voting and electing until he approves.

Their Rights.]-It has been observed above, that the Official is

the sole Assignee until the Creditor's Assignee is chosen. As soon, however, as the Creditor's Assignee, or Assignees, are chosen and appointed, the whole of the property vests in all absolutely, so as to give them the same rights and remedies as if vested in them individually. And where there are two or more, they stand seized or possessed of the property in joint tenancy with a right of survivorship in case of death, and represent the bankrupt in every thing respecting that property with the same rights the bankrupt himself had and even additional rights conferred by the statute, and generally they are bound by the same equities, see 2 V. & B. 309; 13 Ves. 188; 12 Ves. 349; 9 Ves. 100; 2 Vern. 286; 2 Atk. 562; 2 Show. 103; 1 Ves. Sen. 331. Sir M. O'Loghlen, M. R. (citing Anderson v. Maltby, 2 Ves, jun. 254.) observed that the Lord Chancellor had declared that an assignee had all the equity which the creditors had and might impeach transactions unimpeachable by the bankrupt himself, Bust v. Bernard, 4 Ir. Eq. R. 333.

See further Arch. B. L. p. 442; 1 Deac. by De G. 340; 1 Mont. & A. by K. & Miller. p. 312.

Their Duties.-They ought to call meetings upon extraordinary occasions where the creditor's interest call for them, although they are not bound so to do except where they require their sanction, or under the statute, previous to compounding debts, or giving time or accepting security or commencing suits or submitting to arbitration, &c. for all which, and for notice thereof, how and where given, see 6 W. 4 c. 14; s. 102 Ir. infra.

They should make no delay in collecting debts and making sales, and should confer upon all matters and things with the official assignee. It has been shown (p. 75, supra,) that the new rules and orders, (1849) enjoin the same attention to their duties still as had been previously required of them; and from the fixed character of the official assignee, his being always in court, and keeping books and evidence of all transactions respecting the estate, together with his being an officer, entirely under the control of the court, the labours of the Creditor's Assignee must be considerably diminished, especially if a cordial co-operation, one with the other, be determined upon and observed.

They possess, however, a right entirely distinct from that of the Official Assignee, in having the sole control over the solicitor or attorney in the cause, both as to the appointment and removal; from any interference in which department the Official Assignee is strictly forbidden by s. 31 of the recent Act, and see p. 74, supra.

There is no difference in the law and practice between England and this country on the subject of Creditors' Assignees; the reader is referred, and for the reasons given ante p. 71, to Arch. B. L. pp. 436 to 480; 1 Dea. B. L. by De G. pp. 328 to 379; 1 Mont. & Ayr. B. L. pp. 425. Same editions as referred to in p. 70.

312 to

CHAPTER VIII.

DIFFERENCE BETWEEN ENGLISH AND IRISH PRACTICE.

The following notice of a few of the most prominent points of difference in the practical working of the Bankrupt Laws in England and Ireland, will be found useful in consulting or applying any of the reported cases.

The law in both countries can scarcely be said to differ. They may be said, in fact, to be almost assimilated since the passing of the Act of last Session; yet the machinery employed in determining many cases in England, would lead the reader, at first, to a different conclusion.

IN ENGLAND.

The jurisdiction of the Lord Chancellor in matters of Bankruptcy, was originally very extensive, and recognized by repeated Acts of the Legislature, as well as by a long series of judicial decisions: 2 Chr. B. L. 212. 226. The influence of his recommendation and advice to the Commissioners, and the indirect power which he possessed over them by his patronage, and his refusal to insert their names in other Commissions, insensibly conferred upon him an almost unlimited control over their conduct: ibid. The appeal from the decisions of the Commissioners was directly to the Lord Chancellor, who exercised, in that respect, a sort of jurisdiction which the same learned authority above quoted termed a recommendatory, as distinguished from the mandatory jurisdiction conferred by the early statutes, an influence which was naturally supposed, in many cases, to have operated in derogation of that of the Commissioners.

The Bankruptcy Statutes, as remarked by Lord Eldon, 14 Ves. 451, seemed to have been framed with the view to the authority with which the Chancellor was ordinarily entrusted; and where they were silent his practice was to enforce by virtue of his general jurisdiction. In fact, his Orders in Bankruptcy were considered analogous to Decrees in Chancery-Flower v. Herbert, 2 Ves. 326; Ex p. Cowan, 3 B. & A. 129. Nor was he held liable to an action upon a commitment, although irregular: Dicas v. Lord Brougham, 1 Mood. & R. 309. All this equally applied to the Lord Chancellor in Ireland, until 6 Wm. IV., c. 14, Ir.

COURT OF BANKRUPTCY.

A great change was effected in the entire machinery, respecting the decisions on cases in Bankruptcy in England, by the Act 1 & 2 Wm. IV., c. 56, entitled An Act to establish a Court in Bankruptcy, in pursuance of which the crown, instead of the Lord Chancellor as hitherto in the case of Commissioners, was empowered to appoint barristers of specified standing at the bar, one of whom should be the "Chief Judge of the Court of Bankruptcy," three to be other Judges of the same Court, and six to be called Commissioners of the Court. All these together constituted the court above-named, which was by the

Statute (sec. 1) declared to be a Court of Law and Equity; the judges and Commissioners thereof to have all the rights, incidents, and privileges of a Court of Record, as fully as were used, exercised, and enjoyed by any of the Courts of Law or Judges at Westminster.

COURT OF REVIEW.

Under the Statute last cited, (sec. 2) a further change was effected, whereby a great portion of the jurisdiction of the Lord Chancellor was transferred to an entirely new-constituted tribunal, called "the Court of Review," consisting of the above-four judges, viz. one Chief Judge and three others; afterwards, by 5 & 6 Wm. IV., c. 29, s. 21, reduced to three, viz. a Chief Judge and two others; afterwards, by 5 & 6 Vic., c. 122, s. 64, reduced to one, who, however, retained the title of "Chief Judge" of the court, and was to take rank and precedence next after the Judges of Westminster Hall, (sec. 65).

To this court, and, since 5 & 6 Vict., to the Chief Judge alone, lay appeals from the Commissioners, with a further appeal to the Lord Chancellor, on a "special case," certified by the judge, and "on matters of law and equity, or on the refusal or admission of evidence only," (1 & 2 Wm. IV., c. 56, s. 3,) and it was, by the same section, declared that all such appeals should be "heard by the Lord Chancellor only, and not by any other judge of the High Court of Chancery." But this limitation did not preclude from further appeal, for, under sec. 37, the Lord Chancellor, if he should deem the matter before him "to be of sufficient difficulty or importance," or in case both parties before the Court of Review should be desirous of it, the Chancellor, or the Court of Review, might send the matter to the House of Lords, setting forth a special case, approved and certified in the usual manner.

This court was at length abolished by 10 & 11 Vic., c. 102, Eng., and its powers, authorities, &c., transferred to, and vested in, such one of the Vice Chancellors, as, from time to time, the Lord Chancellor should appoint, (sec. 2).

SUBDIVISION COURTS.

Besides the above, there are two other Courts occasionally formed in London, called Subdivision Courts, (1 & 2 Wm. IV., c. 56, s. 5,) each presided over by three of the above Commissioners, to which are referred matters such as the examination of the Bankrupt or other person, and also the proof of debts; for although one or more of the Commissioners in the Court of Bankruptcy were empowered (under s. 7 of the last named act), to execute all the powers, duties, and authorities as distinctly as hitherto they had been entitled, by separate commissions, under the great seal, yet they were restrained, by a subsequent proviso, from committing any Bankrupt or other person examined before them, except to the custody of a messenger or other officer of the court. The person was then to be brought up, within three days, before the Subdivision Court, or the Court

of Review, one of which was obliged to assemble forthwith, if for no other purpose, and then and there resume the examination. The court so assembled was then empowered to impose a fine, or to commit. (s. 7, of same.)

DISTRICT COURTS.

All England is divided into districts for Bankruptcy purposes-the London district and seven Country Districts. The London district with its several courts has been described already. Of the Country Districts, each has a court called a District Court, which are held at the following towns:Manchester, Leeds, Liverpool, Birmingham, Bristol, Exeter, and Newcastle upon Tyne, in each of which two Commissioners preside, excepting the two last, which have but one Commissioner each. By 7 & 8 Vic., c. 96, s. 44, the Lord Chancellor is empowered to alter the place of sitting, in which case the Commissioners and their Registrars are entitled to travelling and other expenses. The boundaries of those districts were considered matters of sufficient importance to be the subject of an order in council, and accordingly, on 2 Nov., 1842, they were defined and set out, and the practice of the District Courts was then directed by the General Orders in Bankruptcy to follow that of the Court of Bankruptcy in London. See Rule 6 of Gen. Orders, 12 Nov., 1842, Eng.

SUMMARY.

This subject has insensibly extended itself. It presents a very complicated system of practice compared with that which prevails in Ireland, the simplicity of which, however, might be attributed, perhaps, to causes which are not in operation in England. The number of decisions on Appeals, appearing upon the books of practice in England, strongly contrasts with the paucity of cases in Ireland. This may be accounted for in two ways. First-The greater quantity of the Business itself in the Bankrupt Courts. And secondly-By the usage of our Courts of Law and Equity, whose practice it is to follow such decisions as are reported in the English books, unless where they distinctly appear erroneous.

The Bankrupt Court in Ireland being in this manner furnished with a great body of decisions, pronounced by competent authorities in England, has seldom to contend with appellate difficulties. Thus the simplicity of the structure in Ireland, may, in many respects be said to be mainly owing to the results of those very complications above exhibited.

The jurisdiction of the old Commissioners, holding under the Great Seal, was involved in difficulty so late as Lord Eldon's time, who observed that "there were many acts of the Commissioners that the Great Seal could not control; the Commissioners having the authority to do them given by the Legislature:" Ex. p. King, 11 Ves. 423. At another period the Chancellor said that "he had no more right to reverse an order of the Commissioners than the Court of King's Bench; Clarke v. Capron, 2 Ves. jun. 666. Since that period, however, the question of jurisdiction has