1822. Tuesday, April 30th. Petitions in bankruptcy are in Chancery: Where there of debt to re cover penalties under the stat. 2 Geo. 2. c. 23, FORD V. WEBB. THIS was an action of debt, brought to recover the not proceedings penalty of 501. from the defendant, under the statute 2 Geo. 2. c. 23, for having acted and practised as fore,in an action a solicitor in the Court of Chancery, in the matter of a petition to the Lord Chancellor, without having been admitted or enrolled as required by that statute (a). The declaration contained several counts; but the sixth only was relied on at the trial, which stated, that "the defendant, after the 1st December, 1730, and within, twelve months before the commençement of the action, did unlawfully act as a solicitor the declaration charged the defendant with acting as a solicitor in the Court of Chancery, and carrying on proceedings there, he not having been admitted and enrolled a solicitor of that Court; and it appeared that the defendant, (a certificated conveyancer, but not an attorney,) had been employed by the solicitors under a commission to attend the sig nature of certain creditors of a bankrupt to a petition to the Lord Chancellor for the taxation of a bill of costs, which petition was intituled "In Bankruptcy;" Held, that the action was not maintainable. (a) By the third section of which it is enacted, that “ no person after the 1st December, 1730, shall be permitted to act as a solicitor, or sue out any writ or process, or commence, carry on, solicit, or defend any suit or any proceedings in the name of any other person, in any Court of equity, either in his Majesty's High Court of Chancery, Court of Equity in the Exchequer Chamber, &c., or in any other inferior Court of equity in England, unless such person shall take the oath thereinafter directed and appointed to be taken by solicitors in Courts of equity; and shall also be admitted and enrolled on or before the said first day of December, 1730, in such of the said Courts of equity where he shall act as a solicitor, or shall be sworn, admitted, and enrolled after that day in such manner as is thereinafter directed." The 14th section contains the form of the oath to be taken by solicitors before admission and enrolment. The 24th section enacts, that in case any person shall in his own name, or in the name of any other person, sue out any writ or process, or commence, prosecute, or defend any suit or any proceeding in any of the Courts of equity therein mentioned, as a solicitor for or in expectation of any gain, fee, or reward, without being admitted and enrolled as aforesaid, every such person, for every such offence, shall forfeit and pay 50%. to the use of the person who shall prosecute him for the said offence, &c. :-And by the 25th section, penalties incurred by any person offending against the act, may be recovered by action of debt, bill, plaint, or information, in any of his Majesty's Courts of record, at Westminster, &c. by any per- ' son who shall sue for the same within twelve months after such offence committed, together with treble costs of suit," &c. in his own name, for and on the behalf of certain persons, to wit, one Isaac Howell, one Charles Hure, and one Edward Jones (a), in his majesty's Court of Chancery (the said Court then being held at Westminster, in the county of Middlesex, and then and there being a Court in which solicitors had been accustomably admitted and sworn), in the carrying on of certain proceedings in the said Court, to wit, proceedings in the matter of one Thomas Smith, a bankrupt, for and in expectation of gain, fee and reward, the defendant not then being, nor having been admitted and enrolled a solicitor of the said Court, or an attorney or solicitor of any one of the Courts of law or equity mentioned in a certain act, passed in the second year of Geo. 3, intituled An act for the better regulation of attornies and solicitors."" The defendant pleaded the ge neral issue. At the trial of the cause before Lord Chief Justice Dallas, at Westminster, at the Sittings after the last Michaelmas Term, it appeared that a petition to refer it to the Master to tax the bill of the solicitor under Smith's commission, was intituled "In Bankruptcy," and drawn up in the names of Lowe and Bower, two admitted and enrolled solicitors of the Court, by whom it was sent to the defendant in the country, and signed in his presence by the creditors named in the declaration (6). It also appeared, that the defendant was a certificated conveyancer, but had not been admitted or enrolled as an attorney or solicitor. One of the creditors, viz. Edward Jones, swore that he saw the defendant, and gave him directions to get the bill taxed in the proper course; and that the latter said it was an overcharge, and that he thought he should (4) Creditors under the commission. (b) See Lord Ellon's Order of the 12th August, 1809. Whitmarsh's Bankrupt Laws, 2d edit. 485. 1822. FORD v. Webb. 1822. FORD WEBB. be enabled to get it reduced one-half. Mr. Bower stated, that all the proceedings under the commission were drawn by himself and his partner Mr. Lowe; and that the defendant merely acted as an agent to attest the signature of the petitioners in the country. His Lordship was of opinion, that under these circumstances the action could not be maintained; and accordingly directed a nonsuit. Leave, however, was given the plaintiff to move to set it aside, and have a new trial granted, in case the Court should be of a different opinion. Mr. Serjeant Lens, in the last Term, accordingly obtained a rule nisi to that effect; and submitted that the sixth count was supported by the evidence; and that the defendant had so far violated the terms of the statute, as to bring himself within the penalty thereby imposed, as one of the creditors stated, that he acted as the principal in procuring the taxation of the bill in question. At all events, he acted for gain and reward, in carrying on proceedings in the Court of Chancery. Mr. Serjeant Bosanquet now shewed cause. The plaintiff, in order to maintain this action, should shew, first, that the proceedings were in the Court of Chancery; secondly, that the defendant acted as a solicitor in that Court, in his own name, or in the name of another; and lastly, that he acted in expectation of gain or reward. First. The petition to the Lord Chancellor was intituled "In Bankruptcy," and not "In Chancery.” His Lordship's jurisdiction in bankruptcy is vested in him under a delegated authority, by virtue of the acts of parliament relating to bankrupts, and all the proceedings under a commission are expressly subject to his superintendence and control; and in Ex parle Lund (a), Lord Eldon most properly drew the distinction, where he said that "the jurisdiction of the Chancellor in bankruptcy is not in the Court of Chancery, but in the individual who happens to hold the Great Seal, by a special commission to issue commissions of bankruptcy." If therefore, the petition in this case had been intituled "In Chancery," it would not only have been improper, but the Chancellor could not have heard it. The sixth count of the declaration therefore cannot be supported, as it states that the defendant acted as a solicitor in his majesty's Court of Chancery, in carrying on proceedings there. That allegation was not established by the evidence, and consequently it cannot be sustained. The learned Serjeant was proceeding to argue on the second point, when he was stopped by the Court, who called on Mr. Serjeant Lens to support his rule. The object of the statute was to reach all persons who might prosecute any proceedings in any Court of equity, in expectation of fee or reward, without looking at the particular nature or jurisdiction of such Courts. For the purposes of this action, the proceedings in question may be well stated to be proceedings in the Court of Chancery; for the statute embraces all proceedings which may be instituted and carried on in any Court of equity. Besides, the statute is remedial as well as penal; and no solid distinction can be drawn as to the origin of the jurisdiction of the Court of Chancery, with which the statute was not intended to interfere. In Collins v. Nicholson (b), Lord Chief Justice Mansfield said, that "it was now decided, that all proceedings by petition to the Chan 1822. FORD บ. WEBB. 1822. FORD v. WEBB. cellor, were proceedings in Chancery; and that causes of the utmost magnitude and importance came on in that shape." That dictum is precisely in point; and by the first section of the statute 53 Geo. 3. c. 24, the office of the Vice-Chancellor was created, and a jurisdiction was given to him by the second section to deeide questions in Chancery. Mr. Justice PARK.-The proceedings under the commission, and in which the defendant is stated to have acted as a solicitor, came within the special and summary jurisdiction of the Chancellor, which is vested in him by the statutes which have been passed relating to bankrupts. One of the Judges may, if necessity requires, sit for him as Keeper of the Great Seal; but he could not sit in cases of bankruptcy. Mr. Justice BURROUGH. The jurisdiction in cases of bankruptcy is confined to the Chancellor alone; and the statute 2 Geo. 2. c. 23, being a penal act, the Court will construe it strictly, and not extend its operation beyond the letter of it. Mr. Justice RICHARDSON-The defendant did not act as a solicitor in his Majesty's Court of Chancery; the sixth count of the declaration therefore cannot be supported, as it states that he acted as such in that Court; and that averment was not proved at the trial. Lord Chief Justice DALLAS concurred. Rule discharged. |