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of exchange and promissory notes, not bearing interest; and that there was a surplus to which the bankrupt was

discharged by any insolvent act, shall be or become bankrupt, and have obtained or shall hereafter obtain such certificate," &c. This has been held not retrospective in Carew v. Edwards, 4 Barn. & Adol. 551; and see Churchill v. Crease, 5 Bing. 178, and Terrington v. Hargreaves, 5 Bing. 489. But quære, see post, in this note. The 54th section enacts," that any annuity creditor of any bankrupt, by whatever assurance the same be secured, and whether there were or not any arrears of such annuity due at the bankruptcy, shall be entitled to prove for the value of such annuity,"

&c.; and the 55th section enacts, "that it shall not be lawful for any person, entitled to any annuity granted by any bankrupt, to sue any person who may be collateral surety, for the payment of such annuity, until such annuitant shall have proved under the commission against such bankrupt for the value of such annuity," &c. These clauses have been held retrospective in Bell v. Bilton, 4 Bing. 648, because the object of the legislature was to exonerate the bankrupt, and it had not declared the clause not retroactive. In the same way section 56 is retrospective, ex parte Grundy, Mont. & Mac. 311; it

enacts,

shall, before the issuing of the commission, have contracted any debt payable upon a contingency which shall not have happened before the issuing of such commission, the person with whom such debt has been contracted may, if he think fit, apply to the commissioners to set a value upon such debt, and the commissioners are hereby required to ascertain the value thereof, and to admit such person to prove the amount so ascertained, and to receive dividends thereon," &c. The reasons for the decision were, there are no expressions confining the operation of the clause to the future, and that in clauses intended to be prospective only, that intent is expressed.

"that

Section 128 enacts, every bankrupt who shall have obtained his certificate, if, &c. shall be allowed five per cent." This is retrospective, owing to the words "shall have," ex parte Minchin, Mont. & Mac. 156. Section 79 enacts, "that if any bankrupt shall, as trustee, be seised, &c. any real or personal estate, &c. it shall be lawful for the Lord Chancellor, on the petition of, &c. to order the assignees, &c. to convey, &c." This is retrospective, ex parte Saunders, 2 Gl. & J. 132. Sec

"that if any bankrupt

1834.

Ex parte
PHILLIPS.
In the matter

of

PHILLIPS.

1834.

Ex parte
PHILLIPS.
In the matter
of

PHILLIPS.

entitled; and that a question had been raised, whether these creditors were entitled to interest.

tion 18 enacts, "that if after adjudication the debt of the petitioning creditor be found insufficient to support a commission, it shall be lawful for the Lord Chancellor, &c. to order the said commission to be proceeded in," &c. This was assumed to be retrospective in ex parte Robins, Mont. & Mac. 44, the point not having been argued.

3d, Where it is doubtful.

Section 98 enacts, that "after this act shall have come into effect," &c. There exist the dicta of two eminent judges that this clause is not retrospective; of Lord Lyndhurst in ex parte Grundy, Mont. & Mac. 312, and of Chief Justice Best in Bell v. Bilton, 4 Bing. 618. But it is to be observed, that the words are not, as in section 96," that in all commissions issued after this act shall have taken effect," which is not retrospective; and it is conceived it may safely be asserted, that the clause in practice has always been treated as retrospective.

Whether section 127 be retro

spective?

The clause enacts, "that if any person who shall have been so discharged by such certificate as aforesaid, or who shall have compounded with his creditors,

or who shall have been discharged by any insolvent act, shall be or become bankrupt, and have obtained or shall hereafter obtain such certificate as aforesaid, unless his estate shall produce (after all charges) sufficient to pay every creditor under the commission fifteen shillings in the pound, such certificate shall only protect his person from arrest and imprisonment, but his future estate and effects (except his tools of trade and necessary household furniture, and the wearing apparel of himself, his wife and children,) shall vest in the assignees under the said commission, who shall be entitled to seize the same in like manner as they might have seized property of which such bankrupt was possessed at the issuing the commission." In Till v. Wilson, 7 Barn. & Cres. 684, it was assumed, but not argued, that the clause was retrospective. In Elston v. Braddick, 4 Tyrw. 122, it was decided that the section was retrospective.

As to clause 135.

This clause, intended as a guide to the due interpretation of the whole statute, enacts," that this act shall be construed beneficially for creditors, and that nothing herein contained shall alter the

The petition prayed, that the Court would declare that such creditors were not entitled to interest, and

present practice in bankruptcy, except where any such alteration is expressly declared; and that nothing herein contained shall render invalid any commission of bankruptcy now subsisting, or which shall be subsisting at the time this act shall take effect, or any proceedings which may have been had thereunder, or affect or lessen any right, claim, or demand or remedy which any person now has thereunder, or upon or against any bankrupt against whom any commission has or shall have issued, except as is herein specifically enacted." In ex parte Grundy, Mont. & Mac. 293, it was argued, that as this clause was not to "alter the present practice in bankruptcy, except," &c., and was not to "affect or lessen any right," &c., that therefore the 56th section was not retrospective; but Lord Lyndhurst said (page 513), "But this argument is inconsistent with the mode adopted to confine the operation of the statute in the 57th, 96th, and 98th sections, and would, in my opinion, extend the effect of the clause beyond the natural and obvious import of the words used."

decided that the clause was not retrospective. Denman, C.J., in delivering the judgment of the Court, says, "The language of the 127th section of the 6th Geo. 4. c. 16. which appears to have been taken, with some omissions, from the 9th section of the 5th Geo. 2. c. 30. is by no means clear; and it is extremely difficult to collect from it whether the legislature intended to alter the effect of a certificate obtained prior to that act or not. If it did, the rights of creditors, and of the bankrupt himself, would be much affected; and by the 135th section of the act we find it enacted, "that nothing herein contained shall render invalid any commission of bankruptcy now subsisting, or which shall be subsisting at the time this act shall take effect, or any proceedings which may have been had thereunder, or affect or lessen any right, claim, demand, or remedy which any person now has thereunder, or upon or against any bankrupt against whom any commission has or shall have issued, except as is herein specifically enacted." Now we cannot find any words in the 127th section by which

Which clause is in express

But in Carew v. Edwards, 1832, 4 Barn. & Adol. 355, it was terms made prospective only.

1834.

Ex parte
PHILLIPS.
In the matter

of PHILLIPS.

1834.

Ex parte
PHILLIPS

In the matter

of PHILLIPS.

that the assignees might pay the surplus to the representatives of the bankrupt, without any deduction for interest.

Mr. Montagu and Mr. O. Anderdon for the petition:

The commission issued in 1794. All the debts have been long since paid. The bankrupt died in 1818, and this is an application by his representatives that the assignees may pay over the surplus to them.

The question is, Whether section 132 (a) be retrospective?

There are two modes of considering this: 1st, By authority; 2d, Upon principle.

the right of a creditor, situated as the plaintiff was, to sue the bankrupt, and recover a judgment, and have execution against his effects, is specifically and expressly taken away, or the effects of a bankrupt, situated as this defendant was, are specifically and expressly vested in his assignees.

(a) That the assignees shall, upon request made to them by the bankrupt, declare to him how they have disposed of his real and personal estate, and pay the surplus, if any, to such bankrupt, his executors, administrators, or assigns; and every such bankrupt, after the creditors who have proved under the commission shall have been paid, shall be entitled to recover the remainder of the debts due to him;

but the assignees shall not pay such surplus until all creditors who have proved under the commission shall have received interest upon their debts, to be calculated and paid at the rate and in the order following; that is to say, all creditors whose debts are now by law entitled to carry interest, in the event of a surplus, shall first receive interest on such debts at the rate of interest reserved or by law payable thereon, to be calculated from the date of the commission; and after such interest shall have been paid, all other creditors who have proved under the commission shall receive interest on their debts from the date of the commission, at the rate of four pounds

per centum.-6 G. 4. c. 16. s. 132.

1st, Authority.

It has been decided that the clause is not retrospective, ex parte Shepard, August 1828, Mont. & Mac. 67; Upton v. Bridges, 18th February 1831, in which case the question was fully discussed before the Lord Chancellor in a cause, and the decision of ex parte Shepard was confirmed; and in ex parte Sammon, June 1831, Mont. 255, in which the Vice-Chancellor said he considered the question to be settled.

2d, As to principle.

By section 135 it is enacted," that nothing therein contained shall affect or lessen any right, claim, demand, or remedy which any person then had under an existing commission, or upon or against any bankrupt against whom any commission had or should have issued, except as is therein specifically enacted." But as there is not any specific enactment, except by words which may be either prospective or retrospective, and as the bankrupt's right would be most materially affected or lessened if the section were held to be retrospective, it ought not to be construed to operate retrospectively. This principle of construction is recognized in Carew v. Edwards, 4 Barn. & Adol. 354, upon a question, whether the 127th section were retrospective.

Such are the decisions, and it is most fortunate that the question has been so decided, for great doubt may be entertained whether the law be not founded upon an erroneous principle, and an erroneous analogy to damages given at law upon bills of exchange, and whether it is not oppressive in its operation and injurious in practice. (a)

(a) Q. Is not the reasoning by analogy a dangerous mode of reasoning in legislation? "La

maison d'un homme, disent les
Anglais, est son château. Une
expression poétique n'est pas une

1834.

Ex parte
PHILLIPS.

In the matter

of PHILLIPS.

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