Ex parte LUCAS.-In the matter of OLDHAM. In IN 1829 Oldham agreed to lease certain premises to execute. and The rupt, and the and to take a lease, lease it seems the Court have not con assignees agree jurisdiction to enforce specific performance In this case the to interfere. This was a petition by the assignees of Oldham, pray- Court refused ing that the assignees of Edge might be ordered to execute the lease. Mr. Swanston having read the petition, Sir George 1st. Whether the assignees agreed to accept the 2d. Whether there be jurisdiction over the assig- 3d. Whether, if there be, this Court will enforce Assuming the fact that the assignees agreed to accept the lease, the question is as to the power of this Court to enforce specific performance; a power which it is in the discretion of courts of equity to exercise or not. But this discretion is not arbitrary, being guided by the circumstance whether or not damages would be an adequate compensation; and the only qualification of the rule is, that parties coming to equity for specific performance must themselves do equity; so that if there be any circumstances of fraud the Court may refuse to Formerly, when bankruptcy petitions were heard before the Lord Chancellor, the Court, on all occasions where it was practicable, shifted cases over from its jurisdiction in bankruptcy, to its more enlarged jurisdiction as a court of equity. The distinction between equity and bankruptcy consisted in this, that in bankruptcy, 1st. The evidence was on affidavits; 2d. There was no appeal ; 3d. There was less deliberation than in equity. [Sir George Rose:-In the proposed lease the assignees would be personally liable, and not merely as assignees ; what jurisdiction then have we over them? Erskine, C.J.: If assignees take a lease under ordinary circumstances, they are only liable while they keep it: they may assign, and get rid of that liability. (b) If they were compelled in this case to sign the lease, and become personally liable, assignees would never adopt agreements for leases, however beneficial.] In fact they have adopted this lease, and the liabilities (a) See ex parte Edwards, charge themselves. 1 Atk. 100. (b) If assignees accept a lease, for the purpose, as it seems, of discharging the bankrupt, they may, it has been determined, assign it to a beggar, and dis Onslow v. Corrie, 2 Madd. 330. See some observations by Sir S. Romilly as to the act called his act. The part which is in italics is an inference from the case, which, as it may not be correct, is in italics. consequent thereto are the result of such adoption, which was in their own election. In ex parte Fector, Buck, 429, Lord Eldon ordered the assignees to repay a deposit to a purchaser, even after the commission had been superseded. In ex parte Gould, 1 Gl. & J. 231, the Court compelled a purchaser of part of the bankrupt's property to complete his purchase. In that case the Court exercised jurisdiction for specific performance as fully as any court of equity could do. There the party was a purchaser ; here the parties are assignees, which makes a much stronger case for the interference of the Court. In ex parte Tomkins, Sugd. V. & P., App. xi., Lord Eldon decreed specific performance against the assignees, they having appointed puffers to bid for a mortgaged estate sold under the order of the commissioners, and two lots being knocked down to them. [The CHIEF JUDGE:-That case goes no further than this, that assignees are bound to indemnify the estate from the consequences of their acts.] As to their personal liability on actions by landlords for rent on leases which they have elected to take, the smallness or total want of assets would be no answer; they must personally pay the rent, if there be no assets. 1833. Ex parte In the matter In the very important case of ex parte Cowan, 3 B. & Ald. 123, the Judges defined their opinion of what was the jurisdiction of the Lord Chancellor in bankruptcy. Lord Tenterden says, "A petition in bankruptcy is festinum remedium, and it contributes not less to the saving of expence than the saving of time. The proceeding under the commission operates by way of sudden seizure of property belonging or supposed to belong to a bankrupt. A process so speedy and summary requires to be controlled by a speedy and summary course of relief." And again, "We think of OLDHAM, 1833. Ex parte 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. |