1833.

Ex parte
LUCAS.

In the matter

of OLDHAM.

the assignees are unquestionably subject to the controul and jurisdiction of the Lord Chancellor sitting in bankruptcy for all acts done by them in their character of assignees by virtue or under colour of the commission."

We now come to the act under which this Court sits. The recital is important, as defining the nature of the evil, and of the remedy intended. The preamble recites, that "it is expedient to provide means for administering and distributing the estate and effects of bankrupts, and of determining the questions which from time to time arise touching the same, other than are provided by the said act, to the end that the rights as well of the bankrupts themselves as of their creditors may be enforced with as little expence, delay, and uncertainty as possible." And the second section enacts that the Court of Review "shall have superintendance and controul in all matter of bankruptcy, and shall also have power, jurisdiction, and authority to hear and determine, order, and allow all such matters in bankruptcy as now usually are or lawfully may be brought by petition or otherwise before the Lord Chancellor, whether such matters may have arisen in the said Court of Bankruptcy or elsewhere, except as is herein otherwise provided; and also to investigate, examine, hear, and determine all such other matters within the jurisdiction of the said Court of Bankruptcy as are by this act, or may be by the said rules and regulations, assigned and referred to the said Court of Review."

It appears, therefore, that the Court is to administer justice in all questions which arise between bankrupt estates, being authorized to do all that the Lord Chancellor might have done on petition, motion, " or otherwise;" that is by bill, provided it be a matter in bankruptcy; and the present case is clearly a matter in bankruptcy. The words of section 2. give the Court

1833.

Ex parte

LUCAS.

power to entertain all matters of bankruptcy, and all other matters which might come before the Lord Chancellor by petition, motion, or otherwise. If the Court decide they have no jurisdiction on this petition, they In the matter will in effect resolve that this act, which was intended to extend the jurisdiction, has confined it.

Sir George Rose:

With every inclination to extend the useful jurisdiction of this Court, I cannot say that we have any further jurisdiction than the Lord Chancellor sitting in bankruptcy had formerly.

As to the agreement in question, I do not say that bankruptcy has destroyed its validity. It may be that it can be enforced in equity; it may be that damages are recoverable at law for its non-performance; it may be that the benefit to be derived under it can be sold under the bankruptcy, as equitable mortgages, &c. are: in short, the assignees may have incurred liability, which may be dealt with in the proper place; but is this Court that place?

In many cases it has been decided that this Court has no power to bind the executors (a) of assignees to contracts. One very strong case occurred before Lord Eldon, where something was required to be done against the executor of an assignee, but Lord Eldon repudiated all jurisdiction over him.

In the case now before the Court, if we order the assignees of Edge to execute the lease tendered by the assignees of Oldham, we deprive the assignees of Edge of the right of disputing the bankruptcy of Oldham, and, while deciding a case of contract, estop them from disputing a bankruptcy.

(a) See Saxton v. Davis, 18 Ves. 80, 1 Rose, 79; ex parte Lane, 1 Alk. 90; ex parte Crowe, 1 Mont. & M. 281.

of OLDHAM.

This contract was with the bankrupt, and can we call on his assignees personally to carry it into execution?

I should feel considerable regret if it should be for a moment supposed that this Court had any jurisdiction in a case like the present.

Mr. Spence and Mr. Richards, for the assignees of Edge, declared that they could not put the case better than Sir George Rose had stated it, and that they adopted his observations as their speech.

The CHIEF JUDGE:-Mr. Swanston will then consider himself at liberty to treat the suggestions of Sir G. Rose as the arguments of Mr. Spence and Mr. Richards, and may reply accordingly.

The Court appear to be about to repudiate a jurisdiction which it has under the express terms of the act, on the ground that such jurisdiction was not formerly exercised. But that point has not been established. The cases only establish a rule, that the Court will not assume jurisdiction over the personal representative of an assignee.

It will be time enough to oppose that rule to the petitioners when one of the assignees of Oldham is dead. Where the Court has not made any order during the life of an assignee it might be difficult to make one for the first time on his representative after his death, but if made during his life there would be no difficulty in enforcing it after his death.

As to the argument, that the assignees of Edge must not be now estopped from disputing the commission against Oldham, it cannot surely be contended that their appearing here as respondents, and having an adverse

order made against them, will have that effect, so as to prevent them from disputing the commission at any other time or place.

I rely upon the cases of ex parte Cowan and ex parte Tomkinson, in addition to which may be cited ex parte Gore, 1 Deacon, B. L. 328. In that case a bankrupt had contracted to purchase a quantity of wool, on an agreement that a deposit of five per cent. was to be made on the amount of the purchase money, and that the remainder was to be paid when he took away the wool; and after the deposit was made, and the bankrupt had taken away part of the wool, the price fell in the market; and the assignees contended, that the seller could have no further claim after the forfeiture of the deposit. The Vice-Chancellor held, that, the bankrupt having taken away part of the goods, the assignees were bound in the terms of the contract to take away the remainder, and he ordered the residue of the wool to be sold, and that the vendor might prove for the difference between the amount of the proceeds and the price which the bankrupt had agreed to give for it.

It cannot be disputed that the Court might compel the assignees to elect whether they would accept or reject the agreement; in this case they have accepted. Cannot the Court order them to do such acts as will complete the acceptance, and render it available?

The terms of the statute make the conclusion I contend for inevitable.

It is a maxim as old as legislation, that "Boni judicices solent ampliare jurisdictionem.”

The Lord Chancellor administered justice in bankruptcy on petitions and bills alone; for, properly speaking, there were no motions allowed in bankruptcy. If the matter were too important for decision on a petition a bill was ordered to be filed.

1833.

Ex parte
LUCAS.
In the matter

of

OLDHAM.

Undoubtedly the intent of the legislature was to transfer to this Court all the means which the Lord Chancellor had of administering justice in bankruptcy, whether on petition or bill.

[Sir George Rose:- Motions (a) were allowed on many occasions, as before the commission was opened,