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Colonial Cases

Anonymous [1861]

bankruptcy, jurisdiction - Supreme Court, jurisdiction - reception of English law

Supreme Court (at New Westminster)

Begbie J., 18 March 1861

Source: British Columbian, 21 March 1861 [1]

[2] An application was made to this court on Friday last for an adjudication in bankruptcy against a trader upon a petition filed by some of his creditors.

N.S. Walker, Esq., instructed by Mr. M.T. Drake, appeared in support of the petition.

His Honor in giving judgment said:- This is the first application which has been made to me to entertain jurisdiction in bankruptcy: a jurisdiction used even in theory among the mercantile community here, based almost, if not quite, upon statute alone; and here unfurnished by any of teh machinery by which the jurisdiction contemplated by the statutes is practically put in operation. As to the general jurisdiction in bankruptcy I have no doubt but that it belongs to and is vested in this court. I conceive that all the powers which for the convenience of society must be vested in some court, are here necessarily vested in this, the only court, although for the convenience of society, such powers are in England usually administered in several courts. I conceive that all the jurisdiction, ordinary and extraordinary, which is or may be legally exercised by any common law court, whether vested in such court by common law, by legalised usurpation, or by statute, is here vested in the supreme court. The court of chancery in England has exercised a sole jurisdiction in bankruptcy for upwards of two hundred years. And, although, by the course of legislation during the past 30 or 40 years other courts have been alternately created and extinguished, with jurisdiction in bankruptcy, yet the jurisdiction of the court of chancery has never been taken away. The doctrines of the law of bankruptcy were imported and established here by the Proclamation of the 19th November, 1858. They are part of the law of the colony. They are (what perhaps is unimportant) founded in equity and justice, and intended to conduce to mercantile credit, security, and integrity. And I feel bound to apply those doctrines as far as circumstances will permit. Where no machinery exists here for applying the doctrines, I propose to create such machinery as far as any judge or court in England can create it; and where such machinery can in England be created only by the Legislature or the executive, an application in the proper quarter will probably meet with all due attention.

This is the principal line of argument by which I have arrived at the conclusion that I ought to allow this matter to be proceeded with, in all respects following as closely as may be the analogy of the corresponding steps in bankruptcy proceedings in England.

No order was made on the petition.

Note

[1]  For the dates of sittings of the Supreme Court at the Spring Assizes in 1861, see British Columbian, 21 February 1861, p. 2.

In this important case, Begbie J. reached the opposite result on the reception of English bankruptcy law to that taken across the Pacific in New South Wales, a generation earlier. See Ex parte Lyons, In re Wilson, 1839 (N.S.W.).

Published by Centre for Comparative Law, History and Governance at Macquarie Law School