420
sit
He
-place
Bankruptcy may
exercise jurisdiction in
and
may
Chambers
As
if
the
difference between
Court and Chambers
was the size
of
locality of
the poor!
whole dam of opinions
On the whole
that the statement does not show
any right
Art
the part of the Const
to sit at Chambers in Ber
I think further
Bankruptcy.
further that
in the
absence of any statutory authority
there
would not be
any implied power for the Court to sit in Chambers
inasmuch
as it is an incident of
ordinary Court of Justice that
proceedings
must take place in
its
place in public.
544 Edward Orsealley
October 27
18 80.
# The Daily Press.
HONGKONG, OCTOBER 26TH, 1880.
THE BLOCK IN THE SUPREME COURT.
rives the Chief Justice power to frame rules and orders, find the following enactment, "Provided always that if any case shall arise which shall not have been expressly provided for by such General Orders, but for which provision has been made in the General Orders framed in pursuance of the Bankruptcy Act of 1861, the Chief Justice may in his discretion apply to such cases any of the General Orders so framed as last aforesaid." Now, the collection of General Rules and Orders, drawn up
Yesterday, after sentencing some prisoners in
believe by the late Mr. Ball, when Acting Chief
Criminal Sessions. Mr. Justice Snowden said-
Justice, and having the force of an Ordinance as
wish to make a public statement with reference
having been sanctioned by the Legislative Council.
to the state of business in this court; therefore
does not contain any order regulating the
I will read some remarks I have put on paper:
hearing of bankruptcy matters in Court or Chambers.
The publication of notices at the door of the
I therefore referred to the English Act of
Supreme Court on the evenings of Friday and
1861, and I found the sec. 51 of that Act,
Saturday without the direction of the Chief
which was not adopted into our Bankruptcy Ordinance.
Justice or myself that matters now pending in
provides as follows:-"The Commissioners may
the Bankruptcy and Probate Jurisdictions would
sit at Chambers for the despatch of such part of
be heard by the Court on Saturday and Monday
the business of their Courts as can without detriment
(to-day) and the fact that these matters remain
to the public advantage arising from the
undisposed of to the inconvenience of the parties
discussion of questions in open Court be heard
concerned, render it desirable that a public statement
in Chambers; and when sitting in Chambers they
should be made from the Bench with reference
shall have like power and jurisdiction as when
to the authority the Court has to select
sitting in Court." On turning to the rules and
the place for hearing--with reference to which,
forms of the English Act it will be found that rule
as is now notorious, serious difficulties obstructing
17 provides for the business to be disposed of by
the progress of public business have arisen.
The Chief Justice having requested me to investigate
the subject, I have done so with much
care and now proceed to state publicly my
opinion as to practice and procedure in these
matters as laid down by positive enactments.
The Chief Justice has acted from the first on the
ground that the presiding Judge in Bankruptcy
and Probate has authority to sit in Chambers
instead of in open Court, and to exercise jurisdiction
as fully as in Court in uncontested business,
considering such a mode of hearing is generally
desirable, and often absolutely necessary
while contested business might more properly be
disposed of in open Court. I am informed that it has
been the practice of successive judges to exercise
this discretion from the date of the Bankruptcy
Ordinance 1864. The Bankruptcy Ordinance contains
no special directions as to where the Supreme
Court in Bankruptcy shall hold its sittings,
although the English Act (the Bankruptcy Act
1861) from which it is principally borrowed
makes provision in this respect; but the general
orders under the Bankruptcy Ordinance, No. 2,
provides as follows: The place of sitting of the
Supreme Court exercising jurisdiction in Bankruptcy
shall be the place at which the Supreme Court
now holds or may hold its sitting for the
general business of the Court." The Supreme
Court was reconstructed in 1873 and the Reconstruction
Ordinance, section 31, enacts that "the
Supreme Court shall hold its sittings in the present
building, or in such other place as the Governor
shall from time to time appoint." The Court,
i.e., the Judges, may therefore sit in any
part of the building for the despatch of business.
Then by sect. 2 of the same Ordinance it is enacted
that the word "Court" shall mean the Supreme
Court and shall mean the Chief Justice and the
Puisne Judge sitting together or separately in
Court or in Chambers. If then the Supreme
Court may sit in Chambers in its highest jurisdiction
by two Judges or by one, and as Order 2
which I have just quoted from the General
Rules under Bankruptcy Ordinance makes the
place for holding sittings in Bankruptcy the same
as that used by the Supreme Court, it follows
that one judge may sit in Chambers in Bankruptcy
also. It has been, I am told, the constant
practice of the Chief Justice to hear administrative
as distinguished from contested bankruptcy
matters in Chambers except when it has been
convenient to take them in open Court. Speaking
for myself, I have more usually taken bankruptcy
matters in open Court, although I have often taken
such business in Chambers. I was under the impression
that in the absence of express direction in
our Bankruptcy Ordinance it was the more correct
practice; when, however, this question arose in
its present aspect, I referred to the fountain head
and found that in the contemplation of the law
as applicable to proceedings under our Bankruptcy
Ordinance the hearing should be in Chambers
although entirely subject to the discretion of the
presiding Judge in this respect. On looking at
the Bankruptcy Ordinance section 7, which
meaning. A petition for an adjudication in bankruptcy
filed upon apparently good legal grounds,
but with a malicious motive, heard in open Court
and published far and wide by the press, might do
irreparable damage to the most solvent firm, before
the debtor could get the petition dismissed on its
430
Dec.
420
sit
He
-place
Bankruptcy may
excrcise jurisdiction in
and
mray
Chambers
A s
if
the
difference betiseen
Court and Chambers
was the size
op
locality of
the poors!
whole dam of opinners
On the whole
that the statement does not shor
any right
Art
the part of the Const
to sit at Chambers in Ber
I think further
Bankruptcy.
further that
in the
absence of any statutory authondy
there
would not be
any implied power for the Court to sit in Chambers
asmuch
as it is an incident of
ordinary Court of Justice that
proceedings
must take place in
its
place in public.
544 Edward Orsealley
October 27
18 8o.
#
The Daily Press.
HONGKONG, OCTOBER 26TH, 1880.
THE BLOCK IN THE SUPREME COURT.
rives the Chief Justice power to frame rules aal orders, find the following enactment, "Provided always that if any case shall arise which shall not have been expressly provided for by such General Orders, but for which provision has been made in the General: Orders framed in pursuance of the Bankruptoy! Act of 1861, the Chief Justice may in his dis- oration apply to such cases any of the General Orders so framed as last aforesaid." Now, the col. lection of General Rules and Orders, drawn up I Yesterday, after sentencing some prisoners in
believe by the late Mr. Ball, when Acting Chief Criminal Sessions. Mr. Justice Snowden said- Justice, and having the force of an Ordinance as wish to roake a public statement with reference having been sanctioned by the Legislative Conn- to the state of business in this court; therefore cil. does not contain any order regulating the I will read some remarks I have put o paper: hearing of bankruptcy matters in Court or Cham- The publication of notices at the door of the hers. I therefore referred to the English Act of Eupreme Court on the evenings of Friday and, 1961, and I found the sot. 51 of that Act., which Saturday without the direction of the Chief was not adopted into our Bankrutey Ordinance. Justice or myself that matters now pending in provides as follows:-"The Commissioners may the Bankruptcy and Probate Jurisdictions would sit at Chambers for the despatch of such part of be heard by the Court on Saturday and Monday the basiness of their Courts as oan without da. (to-day) and the fact that these matters remain triment to the public advantage arising from the undisposed of to the incons-nience of the parties discussion of questions in open Court be heard concerned, render it desirable that a public state-in Chambers; and whan sitting in Chambers they ✔ment should be made from the Bench with re- shall have like power and jurisdiction as when ference to the authority the Court has to select sitting in Court." On turning to the rules and or the place for hearing--with reference to which, fars of the English Act it will be found that rule
as is now notorious, serious difficulties obstruct-17 provides for the business to be disposed of by the Commissioners in Chambers. The rule directs
ing the progress of public business have arisen. The Chief Justice having requested me to inves- that the following matters may, unless the Court tigate the subject, I have done so with much shall in any case otherrise direct or allow, be care and now proceed to state publicly my heard and determined by the Commissioner in opinion as to practice and procedure in these Chambers. Then follows a list of twenty-one matters as laid down by positive enactments.
The Chief Justice has acted from the first on the matters which may be thus dealt with, and which are to be, ie, should be heard in Chambers as a ground that the presiding Judge iu Bankruptcy general rule. I need not enumerate all, but and Probate has authority to sit in Chambers amongst them are to be found, trader-debtor sum. instead of in open Court, and to exercise juris-mons, judgment debtor summons, petitions for dietion as fully as in Court in uncontested busi-adjudication in bankruptcy on the application ness, considering such a mode of hearing is gene of a creditor, application for leave to commence, rally desirable, and often absolutely necessary prosecute, or defend any action or suit, etc. Then while contested business might more property be follows the proviso, That if in any of the afore- disposed of in open Court. Iaminformed that it has sail matters the contending parties shall all desire been the practice of successive judges to exercise that any question be heard and decided in open this discretion from the date of the Bankruptcy Court, or the Coramissinuer shall be of opinion Ordinance 186 The Bankruptcy Ordinance cou- that any matter before him ought to be so heard tains no special directions as to where the Supreme and decided, it shall be adjourned for that Court in Bankruptcy shall hold its sittings, purpose. Rule 18 gives a list of eight matters although the Fuglish Act (the Bankruptoy Act which the Registrar may hear and dispose of 1861) from which it is principally horrowed of in Chambers unless the Court otherwise makes provision in this respect; but the general direct or allow. Now by the English Act of 1861 orders under the Bankruptcy Ordinance, No. 2, there was no Judge appointed in Bankruptoy, provides as follows: The place of sitting of the and by the interpretation clause, sec. 229, the Supreme Court exercising jurisdiction in Bank word "Court" is declared to wean the various raphey shall be the place at which the Supreme Courts having jurisdiction in Bankruptcy Court now holds or may hold its sitting for the and "Court of Bankruptcy" is declared to mean general business of the Court." The Supreme Her Majesty's Court of Bankruptcy and the Com Court was reconstructed in 1873 and the Recon-missioners thereof, who were in fact the judges. struction Ordinance, section 31. enacts that "the There can be no doubt that the judge sitting in Supreme Court shall hold its sittings in the present bankruptcy in this Colony has to discharge the building, or in such other place as the Governor Anties of a Commissioner, and also those of the shail from time to time appoint." The Court, ie Registrar of the English Bankruptcy Courts in in this case the Judges, may therefore sit in auy some cases; there being no registrar in bank. part of the building for the despatch of business.
Then by sart. 2 of the same Odinauce it is cuneted ruptcy in this Colony. The Registrar of the that the word "Court" shall mean the Supreme Supreme Court is constituted by the Bank- Court and shall mean the Chief Justice and the ruptcy Ordinance ex-officio Oftcial Assignee, an officer whose duties conflict with those Puisne Judge sitting together or separately in of the Registrar in England. I may here ob Court or in Chambers. If then the Supreme serve that one of the duties which the Registrar Court may sit in Chambers in its highest juris- of the Act of 1861 is directed to perform in diction by two Judges or by one, and as Chambers, is to give the requisite directions for Order 2 which I har just quoted from the Gene-notices and advertisone s, a duty which the ral Rules under Bankrupt Ordinance makes the Court has thought it necesary to take upon it. place for holding si in Bankruptcy the suif in this Colony, is abundantly clear that sameas that used by the Supreme Court, it follows the Commissioners were directed to take the that one judge may sit in Chambers in Bank-matters mentioned in Rule 17 is Chambers, sub- raptey also. It has been, I am told, the constant joor to their discretion to take them in open practice of the Chief Justice to hear adininistra Court, aud that the same procedure applies to tive as distinguished from contested bankruptcy the Judge in Bankruptcy in this Colony. This matters in Cambers except when it has been course of procedure has been acted upou more or convenient to take them in open Court. Speaking less by every snocessive Judge since 1861, as for myself, I have more usually taken bankruptcy I am informed, and this amounts to an adop matters in open Court, although I have often taken tion of Rule 17 of the Bankruptcy Aot of 1861. sucb business in Chambers. I was under the im- A little consideration will show how important pression that in the absence of express direction in it is that a Judge in Bankruptcy should exercise our Bankruptcy Ordinanceit was the more correct this discretion with the greatest care. I will practice; when, however, this question arose in mention only a few instances to illustrate my its present aspect. I referred to the fountain houd and found that in the contempation of the law as applicable to proceedings under our Bank ruptcy Ordinance the hearing should be in Cham- bors although entirely subject to the discretion of the prestling Judge in this respect. On looking at the Bankruptcy Ordinance section 7, which
meaning. A petition for an adjudication in bank- but with a malicious motive, heard in open Court ruptcy filed upon apparently good legal grounds, and published far and wide by the press, might do irreparable damage to the most solvent firm, before the debtor could get the petition dismissed on its
430
Dec.
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