1834. Ex parte PHILLIPS. of PHILLIPS. Mr. James Russell for the representative of a simple contract creditor who had not contracted for interest: In the matter raison; car si la maison d'un homme est son château de nuit, pourquoi ne le seroit-il pas de jour? Si c'est un asile inviolable pour le propriétaire, pourquoi ne le seroit-il pas pour toute autre personne qu'il jugeroit à propos d'y recevoir ? - Le cours la justice est quelquefois entravé en Angleterre par cette puérile notion de liberté. Il semble que les criminels doivent avoir leurs terriers comme les renards pour le plaisir des chasseurs. Un temple dans les pays Catholiques est la maison de Dieu. Cette métaphore a servi à établir les asiles pour les criminels. C'étoit manquer de respect à Dieu que d'arracher de force ceux qui venoient se réfugier dans sa maison. La balance du commerce a produit une multitude de raisonnemens fondés sur la métaphore. On a cru voir les nations s'elever et s'abaisser dans leur commerce réciproque, comme les bassins d'une balance chargés de poids inégaux. On s'est inquiété de tout ce qu'on regardoit comme un défaut d'équilibre. On imaginoit que l'une devoit perdre et l'autre gagner, comme si on avoit ôté d'un bassin pour ajouter à l'autre. Le mot de mère-patrie a fait naître un grand nombre de préjugés et de faux raisonnemens dans toutes les questions con. cernant les colonies et les métropoles. On supposoit aux colonies des devoirs; on leur imposoit des crimes tous également fondés sur la métaphore de leur dépendence filiale." Q. 2. Is not this law founded upon the supposed analogy to damages given at law upon bills of exchange? Q. 5. Are not damages given at law upon bills of exchange, upon the ground that a man, possessing property, has withheld it from his creditors, and made interest or profit of it, which he ought not to retain? Q. 4. What analogy is there between the case of a solvent man withholding property from his creditors, and the case of a solvent man against whom, in a time of commercial tempest, a commission has issued, which, in nine cases out of ten, ought not to have issued, and his property is taken from him, so that he cannot fulfil his contracts? Q.5. Why in such case is a man to be compelled to do an act which he never contracted to do? Q. 6. Even if the claim is founded, what are the relative advantages and evils with which it is attended? The advantage is, that a cre Although ex parte Shepard, Mont. & Mac. 67, decided that section 132 was not retrospective, that was because the right to interest, whatever it was before the 6 Geo. 4. c. 16. came into operation, had become vested in the creditors by the acts of the commissioners before that act came into operation; and ex parte Buck, Mont. & Mac. 297, proceeded on the same ground, deciding that, not the date of the commission, but of the dividend, when the right to allowance vested, was to be considered, and that when such right vested before the present act came into operation, the clause was not retrospective. It was therefore to be inferred, that where ditor upon a debt, when he did not contract for interest, shall receive a few shillings, perhaps, for interest. The evil is, that the solvent bankrupt, against whom, in all probability, a commission ought not to have issued, and who, by exertion, has paid 20s. in the pound, is left destitute; his residue is spread over such a surface as to be of little use; and the plank upon which he clung for safety is taken from him. Q. 7. Has not this clause been injurious in practice. In a commission against a country banker it was clear that, by nursing the estate, and by the diligence of the debtor, the creditors would receive twenty shillings in the pound, with about 4,000l. for the bankrupt; but he said "If I work for years, my surplus will be absorbed." The creditors now will not get twelve shillings in the A commission some years ago * This clause was, I understand, inserted upon the suggestion of Mr. Bligh. The reasons in favour of it are contained in his valuable note to Rowe and Young, vol. ii. p. 416, of Bligh's Reports of Cases in the House of Lords. 1834. Ex parte In the matter of PHILLIPS. 1834. Ex parte PHILLIPS. In the matter of PHILLIPS. the bankrupt's right to an allowance vested after the act came into operation, although under an old commission, the amount of the allowance would be regulated by the new law. In the present case the right to interest is to be regulated by the new act; and such simple contract creditors are therefore entitled to interest, before the surplus is carried over. Per Curiam: The fact fails in this case, for the right to the surplus vested many years ago, when all the creditors were paid; but even if all the creditors had not been paid till the present act came into operation, which was the case in Upton v. Bridges (a), there is no foundation for such distinction. The question is not open; it is concluded by the former decisions. The order made was, "Declare the representatives of the bankrupt entitled to surplus, without any deduction of interest to creditors whose debts did not carry interest." (a) Mr. Swanston said, that in Upton v. Bridges it did not appear whether the dividend were declared after the act came into operation, but was mentioned in the affidavit, and qu. whether brought to the notice of the Court? Ex parte WATSON.—In the matter of MABERLY. THIS was a petition under circumstances similar to those in ex parte Solomons, Mont. & Bli. 308, with this exception, that the petitioner's notes were sent by the agent at Montrose in a parcel to Blythe, which parcel was stolen by a clerk of Blythe's, and the notes never formed any item in the accounts between the assignees and Blythe. Mr. Bethell and Mr. Paynter for the petition. A C. of R. July 30, 1834. custom of exchanging acceptances ex isted between were sent by the petitioner to Blythe, but never exchanged, as bankruptcy intervened, and they were stolen Mr. Swanston and Mr. Montagu for the respondents. from Blythe, and Per Curiam: This is entirely a question of fact. The petitioner has not proved that the money in question was not in the stolen parcel. The Court would have no hesitation in ordering as prayed, if the petitioner had proved that the money was in the hands of Blythe when the assignees interposed the interdict (a) in Scotland. If the money were not in the parcel, it could not have come to Blythe ; if it were in the parcel, it came to Blythe's possession, but was stolen before the interposition of the assignees. The money did not form any part of the funds when the assignees interfered, or when the account was taken between Blythe and the assignees. Petition dismissed. never formed any item in any settlement of accounts between Blythe and the assignees. tioner could not value of the notes from the assignees, (a) Injunction. C. of R. July 30, 1834. Quare, whether Ex parte TURVILLE and others. In the matter of the Court have IN July 1819 a commission issued against Miller. jurisdiction over the executor of Neal was the petitioning creditor, and was chosen sole Part of the bankrupt's property was mortgaged to Neal. This, with other property, was put up for sale by Neal in his character of assignee, without any order of the commissioners, which would have been necessary if he had sold as mortgagee. The mortgaged property was bought by an agent of Neal, without the usual leave of the Court. Neal deducted the amount of the purchase money from his proof. This proof referred to the mortgage, but Neal did not give it up; he received dividends, and signed the certificate. A petition was presented, stating the facts of the purchase without leave, and also charging Neal with having received monies as assignee for which he had not accounted. It was heard on the 5th of July 1833, when the Court ordered the property to be resold, subject to Neal's mortgage, Neal having liberty to bid; and all further directions and costs were reserved. (a) A resale took place, and the property was bought by other persons for much more than Neal had originally given. On the 27th of December 1833 Neal died, leaving the respondents his executors. These executors joined in indentures, by lease and release of the 7th and 8th of July 1834, being a conveyance to the purchaser of the property so resold. This was a petition by one of the assignees chosen (a) See ex parte Turville, 5 Dea. & Ch. 350. |