property in the ship were not vested in the assignees on the 30th of October. If so, there would only be an equitable claim in the respondents, which would not be available till they had applied in the usual way for a sale, and leave to prove for the difference. It is by no means perfectly clear that the assignees may not have a right to recover the legal possession of this property; consequently the Court should give them an opportunity of so doing. On the whole, however, the present inclination of my mind is, that the transaction in question was a fair one, and that the respondent will finally become entitled to the costs of this petition. But the assignees must have an opportunity of trying the question if they should be advised so to do. Sir John Cross: The respondents have claimed for 24,000l., and, but for the proceeds of the ship, their claim would have been to a much greater amount. The assignees call on the Court to declare the transfer of the ship fraudulent and void, and to order it to be delivered up to them; that they abandon, the Court having no jurisdiction so to do. Then they ask that the claim may be expunged, to which the respondents object that the Court have no jurisdiction to expunge a claim. I am not prepared to go that length; but it is not necessary here to decide that point. The petitioners then ask that they may be declared to have a lien on the dividend in respect of their right in the ship. This question of right to the ship was sub judice before the commissioners, it being clear that but for that they would have allowed a proof instead of a claim. But the petition calls on us to intercept the 1834. Ex parte of THOMPSON. 1834. Ex parte In the matter respondents in their way to proof, and declare that the commissioners shall never allow the claim to be matured into proof. It appears to me it would be unreasonable to make any order having that effect. The parties THOMPSON. Should go before the commissioners to prove; then all the questions discussed this day may be argued before them, and they will then admit or reject the proof, and either party dissatisfied with their decision may then appeal to this Court. Two years, however, have elapsed since the claim was made, which may have given the respondent sufficient time to have matured the claim into proof. The objections stated by the assignee furnish probabilis causa litigationis. But as the respondents have not yet applied to prove, this Court will properly call on them to apply to the commissioners for that purpose within a reasonable period. Sir George Rose : Where a creditor applying to prove claims a right to property on which the commissioners are of opinion he has no lien, and that the assignees have a good ground of action, the proper course of practice appears to be to admit the proof, and leave the question as one to be controlled as to dividend only. In ex parte Ackroyd, 1 Gl. & J. 391, the commissioners rejected the proof because there was a question as to property between the estate and the creditor; but on appeal it was held, that the proof ought to be allowed, but no dividend paid till the question had been determined. The jurisdiction of this Court on these questions is only on the footing of proof. If here the assignees had clearly no locus standi to have opposed proof, their petition must have been dismissed at once; but that is not so perfectly clear. The petitioning creditor's debt is far enough back to enable the assignees to come here for protection. It might have been convenient if the respondents would have submitted the question of right of property to the decision of this Court: without such submission we have no jurisdiction. If the party were domiciled here, and there were an act of bankruptcy prior to the assignment, the first consideration would be, whether the property in question were chattel or not? But his being domiciled in America alters the case; the transaction must be regulated by American law, and the question could only be agitated before the proper tribunal in America, before which the party must prove that, according to the American law, their title was good. That mode they may now pursue. In the meantime the dividend must be protected; and when the right of property has been decided, that will determine the right to costs on this petition. It has been urged in argument, that the many similar transactions in which the bankrupt engaged with other persons were improperly introduced into this petition, which relates to a single assignment of a particular ship; but if numerous transfers be made by a trader abroad, so as to amount in effect to a cessio bonorum, then, on general principles, a party taking advantage of a cessio bonorum abroad is not to be allowed to come under a commission in this country to receive dividends. The following order was made: " Pay the present and future dividends on the claim into Court, and when paid in let the same from time to time be laid out, with liberty for the respondents to go in under the commission and make such proof as they can; but such proof is not to be resisted on the ground that the respondents have posVOL. I. X X .1834. Er parte In the matter of THOMPSON. 1834. Ex parte In the matter session of the ship in question. The assignees to be at liberty to take such steps, as they shall be advised, to recover the property. Reserve further directions, and costs; and liberty to all parties to apply." C. of R. July 28 & 29, 1834. Section 132 of 6 Geo. 4. c. 16. as to interest is not retrospective. (a) Ex parte PHILLIPS.-In the matter of PHILLIPS. THIS was a petition by the heir-at-law of the bankrupt and others, praying that the assignees might convey to the petitioner the residue of the bankrupt's estate, without payment of interest to creditors whose debts did not bear interest. (a) As questions on the retrospective operation of the 6 Geo. 4. c. 16. frequently occur, it may be of service to subjoin the decisions on the subject, dividing them into three classes, 1st, where the act is not retrospective, 2d, where it is; 3d, where doubtful. But, before either of these is separately considered, it may be noted, 1st, that in Moser v. Newman, 6 Bing. 561, Bosanquet, J. says, "The Courts are cautious in giving to any act a retrospective effect by relation." 2d, Because the legislature has, in certain cases, declared that the act shall be prospective only, it has occasionally been said, that in cases where the legislature has not so expressed itself it ought to be inferred that the act should be retrospective: in ex parte Grundy, Mont. & Mac. 312, Lord Lyndhurst says, “It is an argument fairly deducible from this section, that where the legislature intended to confine the act to future commissions the intention is expressed in direct terms; the same observation is applicable to the 96th and 98th clauses." In Bell v. Bilton, 4 Bing. 618, Best, C. J., in considering whether section 55, which relates to annuities, is retrospective, says, "Where the legislature intended that the statute should not affect commissions previously issued, the intention is declared in express terms: such terms will be found in the 57th, 96th, and 98th sections." The petition stated, that the commission issued in May 1794; that all the debts proved, which were very says, In Churchill v. Crease, 5 Bing.177, Serjeant Taddy, in argument, "The enumeration of the clauses in which the act was to have a retrospective operation excludes such operation in any other than the cases enumerated." Maggs v. Hunt, 4 Bing. 218. But this inference seems not in general to be well founded, for the clauses may be considered as of three classes; 1st, where clearly marked by the legislature as being prospective only; 2d, where retrospective; and 3d, where doubtful in the latter, i.e. the doubtful class, the reasoning may apply. 1st, Where not retrospective. It is not where the legislature uses only prospective words, as in section 58 relating to interest on promissory notes, &c., which begins, "And be it enacted, that in all future commissions ;" and in section 96 relating to the inrolment of commissions, &c., which enacts, "that in all commissions issued after this act shall have taken effect," &c. ferred his debts, &c., the commis- 360. The 92d section enacts, The 73d section enacts, "That 1834. Ex parte of PHILLIPS. |