in the ecclesiastical law, an officer of the bishop, who exercises spiritual jurisdiction in places of a diocese so far from the episcopal see, that the chancellor cannot call the people to the bishop's principal consistory court, without giving them too much inconvenience.
COMMISSARY-Court, in Scotland, a court originally constituted by the bishops for executing in their name an usurped jurisdiction; and was anciently called the bishop's court, curia Christianitatis, or consistorial court. This court was modelled by Queen Mary at the Reformation, and continues to this day.
in a military sense, is of different sorts.
COMMISSARY-General of the Musters, an officer appointed to muster the army, as often as the general thinks proper, in order to know the strength of each regiment. regiment and company, to receive and inspect the muster-rolls, and to keep an exact state of the strength of the army.
**Commissary of Horses**, an officer in the artillery appointed to have the inspection of the artillery-horses, to see them mustered, and to send such orders as he receives from the commanding officer of the artillery by some of the conductors of horses, of which he has a certain number for his assistants.
**Commissary of Provisions**, an officer who has the charge of furnishing the army with provisions.
**Commissary of Stores**, an officer in the artillery who has the charge of all the stores, for which he is accountable to the office of ordnance.
**Commission**, in common law, the warrant or letters patent, which all persons exercising jurisdiction have to empower them to hear or determine any cause or suit; as the commission of the judges, &c.
**Commission of Bankruptcy**, is the commission that issues from the lord chancellor on a person's becoming a bankrupt within any of the statutes, directed to certain commissioners appointed to examine into it, and to secure the bankrupt's lands and effects for the satisfaction of his creditors. See the article Bankrupt.
The proceedings on a commission of bankruptcy may be divided, 1. Into those which affect the bankrupt himself. 2. Into those which affect his property.
1. As to those of the former kind, there must, in the first place, be a petition to the lord chancellor by one creditor to the amount of £100, or by two to the amount of £150, or by three or more to the amount of £200; upon which he grants a commission to such discreet persons as to him shall seem good, who are then styled commissioners of bankrupt. The petitioners, to prevent malicious applications, must be bound in a security of £200, to make the party amends, in case they do not prove him a bankrupt. And if, on the other hand, they receive any money or effects from the bankrupt, as a recompense for suing out the commission, so as to receive more than their rateable dividends of the bankrupt's estate, they forfeit not only what they shall have to received, but their whole debt. When the commission is awarded and issued, the commissioners are to meet at their own expense, and to take an oath for the due execution of their commission, and to be allowed a sum not exceeding £20 per diem each, at every sitting. And no commission of bankruptcy shall abate or be void on any demise on the crown.
When the commissioners have received their commission, they are first to receive proof of the person's being a trader, and having committed some act of bankruptcy; and then to declare him bankrupt, if proved so; and to give notice thereof in the gazette, and at the same time to appoint three meetings. At one of these meetings an election must be made of assignees, or persons to whom the bankrupt's estate shall be assigned, and in whom it shall be vested for the benefit of the creditors; which assignees are chosen by the major part, in value, of the creditors who shall then have proved their debts; but may be originally appointed by the commissioners, and afterwards approved or rejected by the creditors; but no creditors shall be admitted to vote in the choice of assignees, whose debt on the balance of accounts, does not amount to £10. And at the third meeting at farthest, which must be on the 42nd day after the advertisement in the gazette, the bankrupt, upon notice also personally served upon him, or left at his usual place of abode, must surrender himself personally to the commissioners, and must henceforth in all respects conform to the directions of the statutes of bankruptcy; or, in default thereof, shall be guilty of felony without benefit of clergy, and shall suffer death, and his goods and estate shall be divided among his creditors.
In case the bankrupt absconds, or is likely to run away between the time of the commission issued and the last day of surrender, he may, by warrant from any judge or justice of the peace, be apprehended and committed to the county gaol, in order to be forthcoming to the commissioners, who are also empowered immediately to grant a warrant for seizing his goods and papers.
When the bankrupt appears, the commissioners are to examine him touching all matters relating to his trade and effects. They may also summon before them, and examine, the bankrupt's wife, and any other person whatsoever, as to all matters relating to the bankrupt's affairs: And in case any of them shall refuse to answer, or shall not answer fully, to any lawful question, or shall refuse to subscribe such their examination, the commissioners may commit them to prison without bail, till they make and sign a full answer; the commissioners specifying in their warrant of commitment the question so refused to be answered. And any gaoler, permitting such person to escape or go out of prison, shall forfeit £500, to the creditors.
The bankrupt, upon this examination, is bound, upon pain of death, to make a full discovery of all his estate and effects, as well in expectancy as possession, and how he has disposed of the same; together with all books and writings relating thereto: and is to deliver up all in his power to the commissioners (except the necessary apparel of himself, his wife, and his children); or in case he conceals or embezzles any effects to the amount of £20, or withholds any book or writings, with intent to defraud his creditors, he shall be guilty of felony without benefit of clergy.
After the time allowed the bankrupt for such discovery is expired, any other person voluntarily discovering any part of his estate before unknown to the assignees, shall be entitled to five per cent. out of the effects so discovered, and such farther reward as the assignees and commissioners shall think proper. And any trustee wilfully concealing the estate of any bankrupt, after the expiration of 42 days, shall forfeit £100, and double the value of the estate concealed, to the creditors.
Hitherto everything is in favour of the creditors; and the law seems to be pretty rigid and severe against the bankrupt; but, in case he proves honest, it makes him full amends for all this rigour and severity. For, if the bankrupt hath made an ingenious discovery, hath conformed to the directions of the law, and hath acted in all points to the satisfaction of his creditors; and if they, or four parts in five of them in number and value (but none of them creditors for less than £20), COM
Commis-
sion.
will sign a certificate to that purport; the commissioners are then to authenticate such certificate under their hands and seals, and to transmit it to the lord chancellor: and he, or two judges whom he shall appoint, on oath made by the bankrupt that such certificate was obtained without fraud, may allow the same; or disallow it, upon cause shown by any of the creditors of the bankrupt.
If no cause be shown to the contrary, the certificate is allowed of course; and then the bankrupt is entitled to a decent and reasonable allowance out of his effects for his future support and maintenance, and to put him in a way of honest industry. This allowance is also in proportion to his former good behaviour, in the early discovery of the decline of his affairs, and thereby giving his creditors a large dividend. For if his effects will not pay one half of his debts, or 10s. in the pound, he is left to the discretion of the commissioners and assignees, to have a competent sum allowed him, not exceeding 3 per cent.; but if they pay 10s. in the pound, he is to be allowed 5 per cent.; if 12s. 6d. then 7½ per cent.; and if 15s. in the pound, then the bankrupts shall be allowed 10 per cent.; provided that such allowance do not in the first case exceed 200l. in the second 250l. and in the third 300l.
Besides this allowance, he has also an indemnity granted him, of being free and discharged for ever from all debts owing by him at the time he became a bankrupt; even though judgment shall have been obtained against him, and he lies in prison upon execution for such debts; and, for that among other purposes, all proceedings on commission of bankrupt, are, on petition, to be entered on record, as a perpetual bar against actions to be commenced upon this account: though, in general, the production of the certificate properly allowed shall be sufficient evidence of all previous proceedings. Thus the bankrupt becomes a clear man again; and by the affixture of his allowance and his own industry, may become a useful member of the commonwealth; which is the rather to be expected, as he cannot be entitled to these benefits, but by the testimony of his creditors themselves of his honest and ingenuous disposition; and unless his failures have been owing to misfortunes, rather than to misconduct and extravagance.
2. As to the proceedings which affect the bankrupt's property.
By virtue of the statutes before mentioned, all the personal estate and effects of the bankrupt are considered as vested, by the act of bankruptcy, in the future assignees of his commissioners, whether they be goods in actual possession, or debts, contracts, and other choses in action; and the commissioners by their warrant may cause any house or tenement of the bankrupt to be broken open, in order to enter upon and seize the same. And when the assignees are chosen or approved by the creditors, the commissioners are to assign everything over to them; and the property of every part of the estate is hereby as fully vested in them as it was in the bankrupt himself, and they have the same remedies to recover it.
The property vested in the assignees is the whole that the bankrupt had in himself, at the time he committed the first act of bankruptcy, or that has been vefted in him since, before his debts are satisfied or agreed for. Therefore, it is usually said that once a bankrupt and always a bankrupt; by which is meant, that a plain direct act of bankruptcy once committed, cannot be purged, or explained away, by any subsequent conduct, as a dubious equivocal act may be; but that, if a commission is afterward awarded, the commission and the property of the assignees shall have a relation, or reference, back to the first and original act of bankruptcy. Insomuch that all transactions of the bankrupt are from that time absolutely null and void, either with regard to the alienation of his property, or the receipt of his debts from such as are privy to his bankruptcy; for they are no longer his property, or his debts, but those of the future assignees. And if an execution be sued out, but not served and executed on the bankrupt's effects till after the act of bankruptcy, it is void, as against the assignees. But the king is not bound by this fictitious relation, nor is within the statutes of bankrupts; for if, after the act of bankruptcy committed, and before the assignment of his effects, an extent issues for the debt of the crown, the goods are bound thereby. In France this doctrine of relation is carried to a very great length: for there, every act of a merchant, for ten days precedent to the act of bankruptcy, is presumed to be fraudulent, and is therefore void. But with us the law stands upon a more reasonable footing; for as these acts of bankruptcy may sometimes be secret to all but a few, and it would be prejudicial to trade to carry this notion to its utmost length, it is provided by stat. 19 Geo. II. c. 32. that no money paid by a bankrupt to a bona fide, or real creditor, in a course of trade, even after an act of bankruptcy done, shall be liable to be refunded. Nor by stat. 1 Jac. I. c. 15. shall any debtor of a bankrupt that pays him his debt without knowing of his bankruptcy, be liable to account for it again. The intention of this relative power being only to reach fraudulent transactions, and not to distress the fair trader.
The assignees may pursue any legal method of recovering this property so vefted in them by their own authority; but cannot commence a suit in equity, nor compound any debts owing to the bankrupt, nor refer any matters to arbitration, without the consent of the creditors, or the major part of them in value, at a meeting to be held in pursuance of notice in the gazette.
When they have got in all the effects they can reasonably hope for, and reduced them to ready money, the assignees must, within 12 months after the commission issued, give 21 days notice to the creditors, of a meeting for a dividend or distribution; at which time they must produce their accounts, and verify them upon oath, if required. And then the commissioners shall direct a dividend to be made, at so much in the pound, to all creditors who have before proved, or shall then prove their debts. This dividend must be made equally, and in a rateable proportion, to all the creditors, according to the quantity of their debts; no regard being paid to the quality of them. Mortgages, indeed, for which the creditor has a real security in his own hands, are entirely safe; for the commission of bankrupt reaches only the equity of redemption. So are all personal debts, where the creditor ditor has a chattel in his hands, or a pledge or pawn, for the payment, or has taken the debtor's lands or goods in execution. And, upon the equity of the stat. 8 An. c. 14. (which directs, that upon all executions of goods being on any premises demised to a tenant, one year's rent and no more, shall, if due, be paid to the landlord) it hath also been held, that under a commission of bankrupt, which is in the nature of a statute execution, the landlord shall be allowed his arrears of rent to the same amount, in preference to other creditors, even though he hath neglected to detain while the goods remained on the premises; which he is otherwise entitled to do for his entire rent, be the quantum what it may. But otherwise judgments and recognizes (both which are debts of record, and therefore at other times have a priority), and also bonds and obligations by deed or special instrument (which are called deeds by specialty, and are usually the next in order), these are all put on a level with debts by mere simple contract, and all paid pari passu. Nay, so far is this matter carried, that, by the express provision of the statutes, debts not due at the time of the dividend made, as bonds or notes of hand, payable at a future day, shall be paid equally with the rest, allowing a discount or drawback in proportion. And insurances, and obligations upon bottomry or repondentia, bona fide, made by the bankrupt, though forfeited after the commission is awarded, shall be looked upon in the same light as debts contracted before any act of bankruptcy.
Within 18 months after the commission issued, a second and final dividend shall be made, unless all the effects were exhausted by the first. And if any surplus remains, after paying every creditor his full debt, it shall be restored to the bankrupt. This is a case which sometimes happens to men in trade, who involuntarily, or at least unwarily, commit acts of bankruptcy, by abdicating and the like, while their effects are more than sufficient to pay their creditors. And if any suspicious or malevolent creditor will take the advantage of such acts, and sue out a commission, the bankrupt has no remedy, but must quietly submit to the effects of his own imprudence: except that upon satisfaction made to all the creditors, the commission may be superseeded. This case may also happen when a knave is desirous of defrauding his creditors, and is compelled, by a commission, to do them that justice which otherwise he wanted to evade. And therefore, though the usual rule is, that all interest on debts carrying interest shall cease from the time of issuing the commission, yet in case of a surplus left after payment of every debt, such interest shall again revive, and be chargeable on the bankrupt or his representatives.
Commission of Lunacy, issues out of the court of chancery, whether a person represented to be a lunatic, be so or not. See Lunacy.
Commission of Teinds, a court at Edinburgh, which came in place of a committee of the Scottish parliament, for erecting new parishes, and valuing teinds for the support of the clergy. It is vested in the lords of session. See Law Index.
Commission officers. See Officers.