bearing date the 5th day of December, 1832, established the new Court of Bankruptcy, and constituted the same to be a Court of Record, with all the rights, incidents, and privileges to the same, the judges and commissioners thereof, as given and granted by the said act of Parliament. SECTION 3. Commissioners and Subdivision Courts. Commissioners.] By letters patent, bearing date the 5th December, 1832, his Majesty, in pursuance of the statute, (1 & 2 Will. 4, c. 56), appointed the following persons to be, and they now are, the Commissioners of the Court of Bankruptcy, viz. :— Sir Charles Frederick Williams. John Herman Merivale, Esquire. Joshua Evans, Esquire. John Samuel Martin Fonblanque, Esquire. Edward Holroyd, Esquire. By 1 & 2 Will. 4, c. 56, s. 7, in every bankruptcy prosecuted in the said Court of Bankruptcy, it shall and may be lawful for any one or more of the said six commissioners, to have, perform, and execute all the powers, duties, and authorities by any act or acts of Parliament now in force vested in commissioners of bankrupt, in all respects as if they or any one or more of them were in every instance especially authorized and appointed for the purpose by a separate commission under the great seal of the United Kingdom of Great Britain and Ireland: provided always, that no single commissioner shall have power to commit any bankrupt or other person examined before him otherwise than to the care and custody of a messenger or other officer of the said court; to be by him detained in his custody, and brought up before a Subdivision Court, or the Court of Review, within three days after such commitment, for which purpose one of such courts shall be forthwith assembled, and to which court such examination shall be adjourned; and by 5 & 6 Will. 4, c. 29, s. 25, the said Court of Review and the said several Subdivision Courts respectively shall henceforth be, and shall be deemed and taken from and after the passing of the said first-recited act (1 & 2 Will. 4, c. 56) to have been, Courts of Record, and shall and may have and exercise all such powers of commitment as were vested in commissioners of bankrupt acting as such at the time of the passing of the said first-recited act, and shall and may have, use, and exercise all the powers, rights, privileges, and incidents of a Court of Record, as fully to all intents and purposes as the same are used, exercised, and enjoyed by any of his Majesty's courts of law at Westminster; and all orders here tofore pronounced and all acts done by the said Court of Review and Subdivision Courts respectively shall be deemed and taken to have been pronounced and done by the said courts respectively as Courts of Record; and every judge or commissioner appointed or to be appointed by virtue of the said first-recited act, sitting alone and acting in execution of the duties imposed upon him as such judge or commissioner, shall have, use, exercise, and enjoy all the powers, rights, privileges, and exemptions of a Court of Record: provided always, that nothing herein contained shall be deemed or taken to authorize or empower any such judge or commissioner sitting alone to impose any fine or commit for a contempt of court, but every contempt of any such judge or commissioner sitting alone and acting as aforesaid shall be cognizable by the said Court of Review, to which the same may be referred by any such judge or commissioner as aforesaid; and the said Court of Review shall have full power to deal with the same as a contempt of the said Court of Review; provided also, that nothing herein contained shall be deemed or taken to diminish or affect the power by the said first-recited act (1 & 2 Will. 4, c. 56) given to any such judge or commissioner of committing any person examined before him to any messenger or other officer of the Court of Bankruptcy; and by the 1 & 2 Will. 4, c. 56, s. 6, all references or adjournments by a single commissioner to a Subdivision Court, by virtue of this act, shall be to the Subdivision Court to which he belongs, unless the said commissioner, in case of the sickness of some one or more of the commissioners of such Subdivision Court, or other sufficient cause, shall think fit otherwise to direct. By s. 30, any one of the said six commissioners, if he think fit, may adjourn the examination of any bankrupt or other person to be taken either before a Subdivision Court or the Court of Review, and may likewise adjourn the examination of a proof of debt to be heard before a Subdivision Court; and by s. 21, in all cases in which power is by this act given to any one of the said commissioners to act, such power shall and may in like manner be exercised by the said chief judge, or by any one of the said other judges, as occasion may require; and where any such judge so acting would, in case he were a commissioner, make any reference or adjournment to a Subdivision Court, such reference or adjournment shall be made by such judge to the Court of Review instead of a Subdivision Court; and by 5 & 6 Will. 4, c. 29, s. 24, any commissioner of the Court of Bankruptcy has power to administer oaths on affidavit, (see p. 8, ante), and by 1 & 2 Will. 4, c. 56, s. 39, all power, jurisdiction, and authority of the commissioners named in any commission of bankrupt depending in the Court of Commissioners of Bankrupts in the city of London, shall cease and determine, and every such commission shall thereupon be removed into the said Court of Bankruptcy, and all further proceedings thereon shall be thenceforth prosecuted and carried on in like manner as if they had been originally commenced therein by virtue of a fiat under the hand of the Lord Chancellor, issued pursuant to this act, save as may be otherwise directed by this act: and by General Order, January 12, 1832, all commissions of bankrupt heretofore issued and directed to the first and second list of Commissioners of Bankrupt shall, when removed into the Court of Bankruptcy, be prosecuted before Charles Frederick Williams, Esq. All commissions directed to the 3rd and 4th lists shall, in like manner, be prosecuted before John Herman Merivale, Esq. All commissions directed to the 5th and 6th lists shall, in like manner, be prosecuted before John Samuel Martin Fonblanque, Esq. All commissions directed to the 7th and 8th lists shall, in like manner, be prosecuted before Joshua Evans, Esq. All commissions directed to the 9th and 10th lists shall, in like manner, be prosecuted before Edward Holroyd, Esq. All commissions directed to the 11th list shall, in like manner, be prosecuted before Charles Frederick Williams, Esq., and Joshua Evans, Esq., or one of them. All commissions directed to the 12th list shall, in like manner, be prosecuted before John Herman Merivale, Esq., and Edward Holroyd, Esq., or one of them. And all commissions directed to the 13th and 14th lists shall, in like manner, be prosecuted before Robert George Cecil Fane, Esq.: provided, that in the absence of any commissioner, any other commissioner may sit for him. Where an existing commission had been transferred to one of the commissioners of the Court of Bankruptcy, and a fiat was subsequently issued against the bankrupt, directed to another commissioner, the Court of Review, upon a certificate of the latter commissioner that it would be beneficial to the estate, ordered that the commission should be transferred to the commissioner to whom the fiat was directed (d). By General Order, January 12, 1832, the commissioners shall sit daily, (Sundays, and holidays to be hereafter named, only excepted), at ten o'clock, at the Court of Commissioners of Bankrupts in Basinghall-street. By virtue of the said act of Parliament, each commissioner now has a court to which are attached one of the deputy registrars, an usher, and one of the messengers. The following is a list of the commissioners, and the officers of their respective courts, viz. Sir Chas. Fredk. Williams, Commissioner. John Wright, Messenger. James Cooper, Usher. John Herman Merivale, Esq., Commissioner. John Campbell, Dep. Registrar. Thomas Hamber, Messenger. Benjamin Checketts, Usher. Joshua Evans, Esq., Commissioner. (d) In the matter of Knox, 1 Dea. & C. 317. John Samuel Martin Fonblanque, Esq., Commissioner. Thomas Edward Stubbs, Messenger. Usher. Robert George Cecil Fane, Esq., Commissioner. William Henry Whitehead, Dep. Registrar. John Cutten, Messenger. J. D. Austin, Usher. Edward Holroyd, Esq., Commissioner. William S. Ayrton, Dep. Registrar. William Edwards, Usher. The above enactments apply to the commissioners of the Court of Bankruptcy only, and not to country commissioners. By 1 & 2 Will. 4, c. 56, s. 14, the judges who go the several circuits in England and Wales may be directed by the Lord Chancellor from time to time to return to him the names of such number as he shall think fit to require of barristers, solicitors, and attornies, practising in the counties to the said circuit belonging, and upon such persons being returned, and approved by the Lord Chancellor, the fiat or fiats aforesaid not directed to the Court of Bankruptcy, shall be directed to some one or more of such persons in rotation to act as commissioners of bankrupt, according to the districts or places for which such persons shall be so returned, and to no other person than such as shall be included in such return: provided always, that it shall be lawful for the Lord Chancellor at any time to remove any person from the lists to be so returned, for such cause as to him shall seem fit. Pursuant to this enactment, commissioners have been appointed for a great number of places in the different circuits, (a list of which is given in the appendix, post), to whom fiats which are to be prosecuted elsewhere than in the Court of Bankruptcy are in future to be directed; unless a special order be obtained on affidavit directing the fiat to go to any other list (e); and when the bankrupt does not reside at one of the places to which the commissioners have so been appointed, the solicitor bespeaking the fiat, must I certify what is the distance from the nearest of one of such places to the residence of the bankrupt. Where the list of commissioners of the place to which the fiat is to be directed, does not afford a sufficient number who are not creditors of the bankrupt, the Court cannot make up the requisite number from another list, but will order the fiat to be directed to a list of commissioners of another place, none of whom are creditors (f). This renders unnecessary such of the General Orders as relate to the nominating country commissioners by the solicitor; but with this exception, all the enactments, orders, and decisions, that have heretofore applied to commissioners of bankrupt generally, will still apply (e) General Order, 9th June, 1837. Foster, 3 Mon. & A. 32. to country commissioners. A country fiat is where the bankrupt resides above forty miles from London. By stat. 6 Geo. 4, c. 16, s. 135, all powers by the said act given to or duties directed to be performed by the commissioners (as hereafter detailed in the course of this work) may be exercised or performed by the major part of the commissioners. By 6 Geo. 4, c. 16, s. 23, at every meeting under any commission to be executed in the country wherein any one or more of the commissioners named be a barrister or barristers, such barrister or barristers, or as many of them as shall be willing to attend, not exceeding three at each meeting, shall be the acting commissioner or commissioners, and shall be entitled to his or their summonses and fees accordingly, in priority to any of the other commissioners in the said commission named; and the court will interfere upon the petition of a quorum commissioner named in a fiat who has not been summoned, and will hold the solicitor answerable for the fees of previous meetings and the costs of the application (g); and though in the opinion of the solicitor such quorum commissioner was disqualified from acting (h), but a barrister cannot petition to have his name inserted in a fiat (i). If the quorum commissioners are unable to attend a meeting under the fiat, the Court of Review cannot authorize the other commissioners to act in their absence; but if not opened, the Court will annul the fiat, and order a new one to issue directed to other commissioners (j); or if the fiat has been opened, will order the meeting to be adjourned (k). The Court refused to discharge a solicitor who had been named a commissioner in a country fiat, and to substitute another, to enable the former to act as solicitor to the fiat (1). The jurisdiction of commissioners of bankrupt is equitable as well as legal (m). The positive directions of the statute must be strictly pursued; but where a discretion is vested in the commissioners it is not subject to control: therefore neither the Court of King's Bench by mandamus, nor the Lord Chancellor by his order, will interfere to compel the commissioners to certify the bankrupt's conformity under the statute (n). And where the certificate of conformity is sent back to the commissioners to let in other creditors, the whole is again open to the uncontrolled exercise of their discretion (0). The commissioners must decide upon evidence given directly before them, and not upon affidavits merely stating the substance of evidence given in another court (p), or the like; and should proceed on the commission or fiat submitted to them, without refer (g) Er p. Douglas, 2 Mon. & A. 218; 4 Dea. & C. 768: Er p. Williams, 2 Mon. & A. 616; 4 Dea. 596. (h) Ex p. Scott, 3 Dea. 93; 3 Mon. & A. 424. (i) Ex p. Ward, 2 Mon. & A. 219: as corrected by Ex p. Williams, 3 Mon. & A. 154. (j) In re Sutton, 2 Dea. 43: In re Barthrup, 2 Dea. 96; 3 Mon. & A. 29. (k) Exp. James, Mon. 454: as corrected by Ex p. Williams, 3 Mon. & A. 454. (1) Er p. Brinton, 3 Dea. 36; 3 Mon. & A. 395. (m) Bromley v. Goodere, 1 Atk. 77. (0) Er p. King, 15 Ves. 126. |