The Sun.
London, England, 1848-07-05 00:00:00

N.9.17,402.] LONDON, WEDNESDAY G

GREAT WESTERN RAILWAY.
CALLS for SEVENTH INSTALMENT of 3/. 10s. per
SHARE on 251. Shares, making 211. paid, and for FIFTH INSTAL-
MENT of 31. 10s. per SHARE on 171. Shares, making 131. paid.
The Directors of the Great Western Railway having resolved, at a
meeting held this day, to CALL, under the provisions of the Acts of
Parliament, for an instalment if 3/. 10s. per Share on 251. Shares ;
and also for an Instalment of N. 10s. per Share on 171. Shares ;
Notice Is hereby given, that the Proprietors are requested to pay, on
or before the sth day if July next, to any of the undermentioned
bankers, the said sum of 3/. 10s. en each of their respective 25/.
Shares ; and the like sum of 3/. 10s. on each if their respective 17/.
Shares, viz.:—

London—Mescrs. Glyn, Hallifax, Mills, and Co. ; at the Great West-
era Railway Office, 29, Gresham-street, City.
Bristol--Messrs. Mlles, Harford, and Co.; Messrs. Bernie, Ames, and
Co. ' • Stuckey's Banking Company ; the West of Eng-
land and South Wales District Bank.
Liverpool—The Bank of Liverpool. . _

Cheltenham—The County of Gloucester Bank.
Beading—Messrs. J. and C. Shnonds and Cip.
By order of the Board of Directors,
CHAS. A. SAUNDERS, Secretary.
London Terminus, Paddington, June 1, 1848.

RIBBLE NAVIGATION.
Notice is hereby given, that the HALF-YEARLY GENERAL
MEETING of the RIBBLE NAVIGATION COMPANY Will be
held at their Office, Chapel-walks, Preston, in the county of Lan-
caster, on THURSDAY, the 27th day of July ithitant, at Eleven
o'clock in the Forenoon.

E. HAYDOCK,
Secretary to the said Company.
Preston, Ribble Navigation Office, June 29, 1848.

THE NORTH WALES SLATE
COMPANY.

Capital, £50,000.
To be conducted on the Cost Book Principle.

In 60,000 paid up Shares, of li. each, without further Call or

Liability. '
The profits of this undertaking will be divided every two months,
and as the works have been for some time past, and are at the pre-
sent moment making very lucrative returns an unusually large divi-
dend may be expected.
This Company offers to the Public the following advantages :-
Ist. Limitation of Liability to 1/. per share, and no further calls.

24. Division of profits six times a year.
M. Works in active operation on a quarry, the existence and ex-
cellent quality of which is fully proved, :tad that a continuous sup-
ply of the material is certain.
4th. The very large and increasing demand for slates, and to which
the present supply is not equal.
A detailed prospectus will be published in a few days. In the
meantime applicatiens for shares may be made to Mr. Anderson,
the solicitor to the Company, at the Company's Office, No. 13a,
Cannon-row, Westminster, where more full information can be
obtained.

TEAS AT WHOLESALE PRICES.
No. 2, BUCKLERSBLTRY, Cbeapside.
Black, 2s. Bd., 35., 3s. 4d., 3s. Bd., 45., 4s. 4d., ss.
Green, 35., 3s. 4d., 3s. 81, 45., 55.. Gs., 7s.
Coffee, 9d., 10d., Is., Is. 2d., Is. 4d., is. Gd., Is. Bd.'
Delivered free of carriage to any part of England.
CARRIAGE FREE TO ANY PART OF
EITGLAND.—Six Pounds and upwards of TEA delivered
carriage free to any part of England at the lowest wholesale price.
All orders not containiug remittances must be accompanied by a re-
ference to a respectable party in London.
MANSELL and Co., Wholesale Tea-Dealers, 2, Bucklersbury,
Cheapside.

CARSON'S ORIGINAL ANTI-CORROSION
PAINT, specially patronised by the British and other Govern-
ments, the Hon. East India Company, the principal Dock Com-
panies, most public bodies, asd by the nobility, clergy, and gentry,
for out-door work at their country seats. The ANTI-CORROSION
is particularly recommended as the most durable out-door paint ever
invented for the preservation of every description of iron, wood,
stone, brick, compo, cement, &c., work, as has been proved by the
practical test of upwards of 60 years, and by the numerous testi-
monials (between 300 and 400) in its favour, and which, from the
rank and station in society of those who have given them, have
perhaps never yet been equalled by anything of the kind hitherto
brought before the public notice.
A Copy of the testimonials, together with a list of prises, colours,
and other particulars, will be forwarded on application to Walter
Carson, 15, Tokenhouse-yard, back of the Bank of England. No
agents.

QILVER, PLATE, New and Second-hand.—
T. COX SAVORY and Co.'s Pamphlet of Prices, with out-
lines, may be had gratis, or will be sent post free if applied for by
a paid letter. The contents are the prices, weights, and patterns of
new and second-hand Silver Spoons and Forks; new and second-
hand Tea and Coffee ,ervices, Waiters, Silver-edged Plated Goods,
the new plated on white metal Spoons and Forks, Watches, Clocks,
Cutlery, Ladies' Gold Neck Chains and Jewellery.
r. COX SAVORY and Co., 47, Corainll (seven doors from Grace •
church-street), London.

STRICTURES OF THE URETHRA: Prevalent and Dangerous
Errors in their Treatment.

Just published, price 55., (by post free, 65.,) Bvo., in cloth,
THE PATHOLOGY AND RATIONAL
TREATMENT of STRICTURES of the 'URETHRA, in all
their Varieties and Complications. With Practical Observations no
the Use and Abuse of Instruments in the Treatment of Urethral Dis-
eases, showing that the unnecessary employment of instruments is
a frequent exciting cause of stricture, and that a want of practical
knowledge and manual dexterity in their use, when necessary, Is the
source of most of the severe, long-protracted, and complicated cases
of that disorder so fatally prevalent. The whole illustrated by nu-
merous cases.

A R R I A G E.
M One half the wend are desolately single, and the other
supposing them married, questionably contented. Diffidence, or a
sense of right determine the former, and miscalculated hopes em-
bitter the latter. The solitary one may shield himself under the plea
of caution and worldly prudence, and the indissoluble, regret un-
comprosing harry ; but the truth lies deeper. Physical Incapacity,
and broken health, are the great hindrances to domestic happiness
and social content. The dowry should net be the only marriage set-
tlement. Honour and justice demand that health shouldforni au item
In the compact ; it alone dignifies the alliance. Blighted hopes er
neglect wound more sorely than poverty or misfortune. Reader, if
these surmises concern you, procure Dr. CULVERWELL'S little
MEMOIRS ' On Single and Married Life, " pub. in 2 vols., Is.
each (by post, in stamps, ls. 6d. each). Let no imaginatively
refined, er prudish feeling deter you, by their titles, nor be hindered
oy mieinterpretation of their supposed contents, from obtaining
there. They are not intended certainly for mere idle cariosity, but
:or the closet perusal of those mere deeply interested, to whom
they are offered as antagonistic to the empyrlcal trash put forth on
the above subjects, by unqualified authors, which alone or
together, are a disgrace to the age. Furthermore, two other
Rtle publications claim your attention (same price Is. each,
by post Is. 6d.) called " What to Eat, Drink, and
tr,arbya volume,
study
dnyoorfartheeutahuetyho the
mere Avoid," and " How to be Happy." They are not merely
but., l se
equalribbinlingguans oft tthye aho l
i
life, who owes his present existence, health, and position to this ob-
mpamerr ephemeral
em
serVanee of the maxims he would inculcate--to do unto others as he
would be done unto—to live after nature's laws—and to keep always
m the " sunny side of the way." The above works may be had of
Sherwood, 23, Paternoster-row ; Carvalho, 147, Fleet-street ; Mann,
39, Cornhill; Nalson, 457, West Strand ; or direct (by post or other-
wise) from the author (who may be conferred with personally,
mornings and overdngs),. ,
10 Argyll-plaee Regent-street; and all
Booksellers

Illustrated by 26 Anatomical Coloured Engravings on Steel.
ON PHYSICAL DISQUALICATIONS, GENERATIVE INCAPA-
CITY, .AND I iiiIPEDIMENTS TO MARRIAGE.
New Edition, enlarged to 196 pages. Just published, price 25. 6d., or
by post, direct from the Establishment, 3s. 6d. in postage stamps,
rFHE SILENT FRIEND, a Medical Work on
the infirmities and decay of the generative system, from ex-
cessive indulgence, infection, and the inordinate use of mercury,
with remarks on Marriage end the means of obviating certain
qualifications. Illustrated, by 26 Coloured Engravings. By IL and
L. PERRY and CO., 19, Berners-street, Oxford-street, London.
Published by the Authors : sold by Strange, 21, Paternoster-row ;
Hannay, 63, and Sanger, 150, Oxford-street ; Starie, 23, Titehborne-
street, Haymarket; and Gordon, 146, Leadenhall-street.
PART I. treats of the anatomy and physiology of the re-productive
organs, and is illustrated by Six Coloured Engravings.
PART 11. treats of the consequences resulting from excessive indul-
gence, and their lamentable effects on the system, producing mental
and bodily weakness, nervous excitement, and generative incapacity.
It is illustrated by Three Explanatory Engravings.
PART 111. treats of the diseases resulting from infection, either in
the primary or secondary form, and contains explicit directions for
their treatment. The consequences of early neglect and of the abuse
of mercury, are also clearly pointed out. This section is illustrated
by Seventeen Coloured Engravings.
PART IV. treats of the Prevention of Disease by a simple ap-
plicatien, by which the danger of infection is obviated. Its action
is simple but sure. It acts with the virus chemically, and destroys
its power on the system. This important part of the Work should
be read by every Young Man entering into life.
PART Y. is devoted to the consideration of marriage, and its
duties. The causes of unproductive union are also considered, and
the whole subject critically and philosophically inquired into.
TM/CORDIAL BALM OF StRIACUM is exclusively employed in treat-
ing nervous and sexual debility, impotence, Sze., lls .and 335. per
bottle. The Concentrated Detersive Essence, as anti-syphilitic
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toms, eruptions, and the abuse of mercury, I Is. and 335. per bottle.
Ferry's Purifying Specific Pills, Is. ed., 4s. 6d., and 115. par box, a
certain ,emedy in gonorrhoea, gleet, strictures, and chronic inflamma-
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with advice tobo had at the lilatablishment only, by which the fee,
11., is saved. Attendance daily at 19, Berners-street, from Eleven
till Two and 'Five to Eight : on gandava from Eleven to Ono

REMOVED TO 37, BEDFORD-SQUARE.

DR. LA'MERT ON THE SECRET INFIRMITIES OF YOUTH
AND MATURITY.-WITH 40 COLOURED ENGRAVINGS ON
STEEL.

Just published, and may be had in French or English, in a Sealed
Envelope. is. ad„ or post-free, from the Author, for forty-two
Stamps,
SELF-PRESERVATION; a Medical Treatise
on the Physiology of Marriage, Infelicitous and Unproductive
Unions, and the Secret Infirmities and Disorders of Youth and Ma-
turity, usually acquired at an early period of life, which enervate
the physical and mental powers, diminish and enfeeble the natural
feelings, and exhaust the vital energies of Manhood ; with Practical
Observations on the Treatment of Nervous Debility and Indigestion,
whether arising from these causes, close study, or the influence of
tropical climates: Local and Constitutional Weakness, Syphilis,
Stricture, and all Diseases and Derangements resulting from Indis-
cretion. With Forty coloured Engravings, illustrating the
Anatomy, Physiology, and Diseases of the Reproductive Organs,
explaining their strictures, uses, and functions, and the various
Injuries that are produced in them by solitary habits, excesses, and
infection. BY SAMUEL LA'MERT, M.D.,
37, BEDFORD-SQUARE, LONDON.
Doctor of Medicine. Matriculated Member of the University of Edin-
burgh, Licentiate of Apothecaries' Hall, London, Honorary Member
of the London Hospital Medical Society, &c.
Marriage reettires the fulfilment of several conditions. in order
that it may be really the cause of mutual happiness. Could the
veil, which covers the origin of domestic wretchedness, be raised,
and its true source is every instance disclosed, in how many could
it be traced to physical disqualifications and their attendant disap-
pointments. Excesses are always injurious ; the gift, which when
used in moderation is fraught with advantage, becomes, when
abused .the prolific source of mischief and of greater or less injury
to the constitutional and vital powers. The particular excesses, on
the nature and consequence of which this Treatise professes to dilate,
arc productive of greater severity of misery to the human frame,
han any other to which it is subject.
This work contains an accurate and complete account of the
Anatomy and Physiology of the Reproductive Organs, and of
their relative conditions in health and disease. It deservedly
requires the closest attentiels and study, for what subject can
be of more Importance than the preservation of the health
and of the physical capabilities of which every man should
be possessed. It unfortunately happens that the unhappy
victim of excessive indulgence and vicious habits, whether acquired
in early life or from tho follies of advanced age, while suffering
from their invariable consequences, unwisely entertains a fear of ap-
plying to a qualified physician for relief. Shame and the dread so
frequently, but erroneously entertained that these complaints are
beyond the reach of art, alike restrict him and prevent his seeking
for assistance where alone it can be procured. In acting thus, he
forgets that accurate discrimination n ascertaining the causes of
disease, sympathy with the sufferer, and, above all, secrecy, inva-
riably characterise the intelligent and practical physician, and to the
medical man who can show by his possession of the requisite legal
qualifications that he is entitled to esteem and respect in his profes-
sional pursuits, the utmost confidence should be extended. Dr.
L.,,,At'AifIERT has obtained the highest medical honours, as his diplomas
suaranY.teane
tdorthihes gprreofaetsseixonteaintexof
ehriisenpractrthfohrasmreafneyrenyceearsalmisosat
solpoluysitioshtehode
by
of these pdiseasecse.,w
y the Author, and may be had of Kent and Richards,
ate
enhall-street, London stet-row ; Hannay, 63, Oxford-street; Starie, Tichbornc-
street,sL2e,
from Author,
ellarnarket • 115, Fleet- street ; Gordon, 146,
rear bdtenleetete. letter, who mayT be consulted on these disorders personally
on ; or, free by post for forty-two stamps,
from_ en till Two, and from Five till Eiirtt.,at his
Dedf),4-vettare London.

BANKRUPTCY COURT.

JUDGMENT OF MR. COMMISSIONER LAW IN
RE JAMES HENRY HANCE.

The petitioner, James Henry Hance, seeks protection
as a non-trader. It is objected that he ought to include
in the list of debts certain old debts as to which he was
discharged by this Court a few years ago, and that this ,
brings with it the necessity of calling himself a trader,
some of these debts having been contracted by him when
in trade, and then it is urged that being a trader,
owing 3001., he cannot petition under the new Act.
I will pass at once to the point which has been argued,
whether the debits of a former prison insolvency are to ,
be included. Does the party petitioning come before us
owing those debts within the meaning of this statute? I
have not before had the opportunity of dealing with this
question, and have never intimated an acquiescence in
the opinion which is commonly said to prevail. It is a
question which I ought to entertain with much caution,
because in deciding one way, I should. as I conceive,
contradict the principles on which the law of this
Court has hitherto stood, and stultify our own
practice, as it has prevailed for thirty years.
Some are satisfied with this truism, that the debts of
an insolvency are not absolutely extinguished but,
exist until paid, and declare, as a necessary consequence
that they are to be reckoned in the total whose amount
regulates the competency to petition. I must de-
cline so rapid a conclusion. Words are to be con-
strued with regard to the subject- matter in which
they are employed. The subject-matter is this—a man
surrenders all his estate and effects present and future
for payment of his debts ; he desires to have protection
against process for his debts, and the owners of the debts
are to share in the property which shall be obtained as the
result of his petition. It seems reasonable that in all
these propositions " debts" should mean thd same thing.
The words of the Act are—" A person being a trader,
but owing debts under 3001. may petition. The peti-
tion shall have annexed to it a full and true schedule of
debts with names and dates of contracting the debts
severally, the nature of the debts, and the security."
Surely the debts which he owes for the purposes of this
Act are those in respect of which he seeks an advantage
to himself by the protection of his person on the one
hand, and in respect of which his creditors are to have the
benefit of his estate, on the other hand. By these tests let
the question be tried. The first test is easily disposed of.
The petitioner is no petitioner as to the debts of the past
insolvency. His protection as to them was pronounced
long ago: he cannot ask to alter the terms of it. The
latter test gives the one topic to be discussed, Is the
property that shall be obtained under a new insolvency
distributable only among the creditors, as to whom pro-
tection is sought, or also among creditors under prior
insolvencies, as to whom protection is not sought ?
The argument must be the same as if the party were
again petitioning under the Insolvent Act The cre-
ditor's right of suit under either scheme depends ou the
position in which he and his debtor stood before this
new insolvency took place—that is to say, in the rela-
tion which was established between them for the time to
come, when the latter received the benefit of a discharge.
There is no provision in the new laws which professes
to alter their relative rights and liabilities. The defini-
tion of a petitioner—" trader owing debts under 3001."
—cannot be held to impart to the creditors of a former
insolvency new powers over property present or future ;
and the question of letting them into proof and dividend
is the same as if that definition had not been expressed.
Thus the point to be discussed resolves itself into a
question which has been constantly before us ever since
this Court was constituted, and which has received one
uniform decision. The former creditors have never
been inserted in a schedule, neither individually nor
in a mass. They have never received notices never
been admitted to oppose ; never allowed to receive a
dividend. So much has the contrary prevailed, that even
when such parties have obtained from the debtor fresh
securities they have been rejected, and told that their
claims belonged to a former and a different insolvency.
When the law (as was the case ten years ago) re-
quired the consent of a certain number of creditors
for a man to petition a second time within five years,
the creditors of a former insolvency had no voice in the
question. If such:creditors are to be admitted now then
in a prison case, their debts must be included
in the warrant of attorney, which will contradict the
90th section of the Act, which denies effect to all judg-
ment, except that which they have already got; in a
protection case they will share in taking a vested
interest in all future estates, which by enlarging,
contradicts the terms in which the former insolvency
placed them. Either result appears equally perverse.
If we were required thus to blend all the insolvencies of
a very insolvent life, it would be necessary to parti-
cularise all the debts of all in the last schedule. Each
creditor is entitled to know all his competitors. He
knows little by reading, the provisional assignee's
name with a lumping security for claims that
have never been sifted. Moreover, the Act itself
requires " a full schedule, with names and
dates of contracting the debts severally, with securities."
If not particularised, how can they be challenged ?
Those whose practice I think to have been erroneous
never proposed that an assignee should prove for the
whole body; nor was it ever done. Each had to come
for himself. This appears in one case to have raised the
question whether any such old claim could be repelled
by the statute of limitations; and here it occurs to one
to say, that if to such a claim a man could desire
to plead that statute he would not bo allowed
to do so; but the reason would be this, that a creditor
cannot be under a penalty for neglecting to sue when
the law has prohibited him from suing. The debtor,
in such a case, needs no such plea; he has a higher
ground of defence—whether six years or only three
have elapsed—he cannot be sued. The statute has
in terms disabled the creditors from all suit, " except
on the judgment entered up by order oi this
court," and most especially disentitles him from
coming forward against the debtor in any new state of
insolvency. It is quite certain that none of those whom
we hear speak of as old creditors can compel a new in-
solvency. In order to do this a man must be a detaining
creditor, and the old one cannot become a detaining
creditor. The same thing prevents him from driving
the debtor to seek protection under the new laws; he has
it already against such parties. The debt, we know, is
not extinguished for all intents and purposes, but the
power of proceeding for the recovery of it is extinguished
excepting upon the judgment in the several ways pre-
scribed by the statute. Those peculiar methods of
se eking payment remain open to him; but the statute
limits the employments even of those to the
marks the future relation case of the debtor coming into a solvent state.
isbethtwateetnhea
The most important and definite feature which
solvent and his jurisdic-
tionspdeicsicahlaredin
contrived by the statute for making after-acquired
property available, is not to be exercised, " if it shall
appear that the debtor is of ability to pay." This con-
dition attaches to the exercise of all future proceedings
in favour of creditors, under the 87th, 88th, and 89th
sections of the Act. There can be nu suit except
upon the judgment, therefore no suit whatever by
individuals, fur suit upon thej udgrnent is on behalf of all
together. The first of these clauses provides execution
on the judgment. The next constrains him, when pos-
sessed of property not subject to execution, to transfer
so much as the Court shall direct " towards satisfaction of
the judgment." The third compels those who hold money,
&c., belonging to him to deliver it for the " be-
'left of the creditors entitled to claim under the
judgment." These are but different modes of satisfying
the judgment, all J
sub ect to the scrutiny of the Court
into the debtor's " ablility to pay." These words have
always appeared to me of essential import in defining
the state of debtor and creditor after au insolvency.
But I do not perceive that these words have ever been
notified by those whose arguments and decisions are re-
ported for us. There is the leading case iu matters
of bankruptcy, where the judge quotes at length every
clause in the Act which can be brought upon such a
question, excepting only these words which disclose and
illustrate the whole principle of the subject. Some of the
earlier Acts not only express this principle, but define
the meaning of it. By the 14th sec. of 53d Geo. 111.,
o. 102, " If the insolvent shall become able to pay
all or part of his debts, atter a reasonable allowance for
the maintenance of him and his family, and payment of
his debts contracted since his discharge, the creditors
may apply for leave to proceed against him, and in case
it shall appear to the satisfaction of the Court that he is
of ability to pay, it shall be lawful for the Court to re-
voke the discharge, or to permit execution to be taken out
on the judgment." The present Act exhibits the same
contingency, "if it shallappear that he is of ability to pay'
the meaning of which, namely, ability after payment of new
debts, has been recognised by the Court ever since I be-
longed to it, now twenty-four years. We constantly
have inquiries into the truth of new debts, when al-
leged in resistance of a claim made to our discretion
upon fresh property. It is plain that if a man becomes
wealthy, not having new creditors, the old ones can
never deal with his substance by bringing on a process
of insolvency. They must resort to the special jurisdiction
of this Court under the insolvency to which they be-
long. Why, then, should the accident of his having a
new creditor who can arrest give them introduction to
that process? The new creditors may enforce payment
through that process. The old ones must follow the pro-
visions of the statute in their pursuit of the surplus. There
is indeed in the opposite doctrine this enormous absurdity :
if a man has new creditors, and just property enough
to pay them in full, the Court, while none of these ar-
rest, can by no means whatever interfere with his pro-
perty in favour of the old list, because the condition of
helping them is wanting—he is not more than solvent.
If, however, he has enough only to pay the
new ones half-a-crown in the pound, and one of
them shall arrest and petition, then, according to that
theory the old ones may rush in, and set the condition,
ability to pay, at defiance, actually resting their claim
on his inability to pay either one set of creditors or the
other. Can any man study the insolvent Acts from that
of 1813 to the present day, and not discern the
policy of these laws ? It is that a man shall
be able to earn himself a livelihood, not ha-
rassed for his debts; that his struggle for subsistence
shall not be frustrated by the invasion of his means of
subsistence; that his past debts shall only be a charge on
the contingency of a clear surplus estate. This policy is
set at nought if the old creditors can, by finding one
new man to arrest, procure a second insolvency for
their own benefit. The further removed a man shall
be from a state of surplus, the surer will be the

scheme of oppression in the facility of finding the
instrument of oppression. Such a state of things
is warranted by no words in any statute, and is prohi-
bited by the whole tenor and principle of the laws which
this Court is required to administer. It remains that I
should notice the grounds on which a contrary opinion
seems to be founded. It is known that the scheduled
creditors of a discharged insolvent have been
permitted by the Court of Bankruptcy to
prove under a subsequent fiat. I admit that
there is analogy. But if my observations
have been just; if the laws of this Court limit the
faculty of claiming payment to the predicament of a
clear surplus estate, this Court is to respect the'law,
notwithstanding the practice of another Court of similar
character. But more is to be said—the admission of
such proofs in bankruptcy has been introduced on
the supposed authority of one single common law
decision—" Jellis v. Mountford" 4 Barn. and Ald. 256.
I dispute the application of that authority—the ques-
tion in that case was upon a prior bankruptcy,
not a subsequent one. One Boutlidge had become bank-
rupt, that is, had committed an act of bankruptcy before
he passed through this Court ; and the questioin was,
whether, after he had gone through this Court, it was
too late to prove that bankruptcy; whether a creditor
named in the schedule was not barred from bringing
forward his debt as a foundation of the bankruptcy.
It was decided that he might petition on that debt.
In that instance there would of course be no diffi-
culty on the proof of debts ; for the bankruptcy
once established took all the funds by priority, and
creditors could not be deprived of their right
against the funds by the discharge of the debtor, under
an insolvency which was in law posterior to the bank-
ruptcy. This is the case which has been made the ex-
cuse for permitting proof of such a debt in a new bank-
ruptcy twenty years afterwards, for holding that a
creditor having received his share of assets under an in-
solvency, may ate, any distance of time share in
the now assets of a new insolvency. I have ex-
plained my reasons for thinking that such position
violates the principles and enactments of the insolvent
law; but let us suppose those principles brought to the
notice of higher tribunals, which I am not aware that
they ever have been, would this case be allowed to sub-
vert them? I think not. In applying the decision of a
Court as a precedent, we must look to the case which
was before the Court; and not merely make a handle of
particular expressions, avoiding to notice the facts to
which they were applied. In thatcase there was a competi-
tion between a bankruptcy and au insolvency for the title
to a failing man's estate, and the point was decided in
favour of the former. The result was that the proceedings
in this court, excepting only the award of personal
liberty, became void. As to debts and property, present
and future, our jurisdiction was utterly superseded. In
pronouncing the decision which was clearly right on
grounds of commercial policy, the Court expresses that
most unquestionable proposition, that the debt was not
extinguished ; and they sanction the use of it to a most
legitimate purpose, the purpose of enabling the
creditor to charge his debtor with an act of
bankruptcy, that shall over-reach the title under
the insolvency. The misapplication of this case as a
precedent consists in an extravagant value given to the
proposition that a scheduled debt is not extinguished to
all intents and purposes. It is not therefore alive and
available to all intents and purposes. It seems to me
that the case ceases to be a precedent, when you want
to use such a debt for a totally different purpose from
that for which it was permitted to be used there. Ob-
serve then, in that case, there was no succession of in-
solvencies or bankruptcies as iu the question now before
us. There was no newly acquired property as there is
here. There was one state of insolvency, and
the contest was by which tribunal the affairs
should be administered —in short, it was a
question of priority, or rather of the right to prove
priority, and the means of proving it. The Chief Jus-
tbeass." Mr. Justice
assignee
assets," Jus-
tice says, "It may be important tor creditors that a com-
elegcollect that the discharge has
has a more exten-
sivem com-
mission i
poweron sho
of
We
issueem recovering
the
se;
trirn
Bayly says,
no operation as against creditors not named in the
schedule, any of these creditors, therefore, might lawfully
sue out a commission, and then the same effect would
take place. and all the property of the insolvent would vest
in the assignees appointed under that commission. Now
to prevent this inconvenience, which
would be still greater
than those suggested, it seems to me that the
creditors named in the schedule ought to have the
power of suing out a commission, for they cannot be
sure that the creditors not named may not after-
wards make their whole proceedings void. Besidesj
their remedy under the bankrupt laws is much more
extensive than under the Insolvent Act; here, the pay-
ment of money to the defendant was void under the
bankrupt laws, and the petitioning creditor, finding that
he cannot set it aside under the Insolvent Act, has
obtained a commission, and is seeking to distribute the
proceeds among all the creditors of the bankrupt." Is
the Learned Judge here talking with a view to future
trading and future acts of bankruptcy? Certainly not,
for against them the title :in this court is 4 safe.
He speaks on the subject before him, a commission that
may overreach the insolvency, and, as be expresses it,
make the whole proceedings void. His point is, that the
creditors should not lose their option of the stronger
title. It has always been a blemish in the law that
creditors cannot more readily compel an insolvent
trader to a bankruptcy, and I apprehend that the
Courts have been inclined to aid rather than im-
pede them in their resort to this process against
the trader's estate. It was not expedient that
his own act of petitioning this Court should
disable them from proceeding in bankruptcy or their
discovering that he had committed an act which would
over-reach the title of our assignee, and place the funds
in the other court. " Jellis a. Mountford " was decided
in favour of that principle in 1821 ; and by the Insol-
vent Act of 1824, creditors were relieved from all
difficulty on the subject, by a provision that the very act
of petitioning should itself be an act of bankruptcy.
When I framed the Act which was passed in 1826, I
found there was great injustice in this, for the assignee
of a man subject to the bankrupt laws could never know
whether his title was safe, as the:very faction which
it rested could any day be brought forward in
support of a commission to overthrow it. :I
represented this to Lord Eldon, who was
sufficiently jealous on behalf of the bankruptcy ju-
risdiction, and on behalf of its presiding deity,*.the
Lord Chancellor. But his admirable sense of jus-
tice sanctioned the alteration which I required, and
the result was that provision which now stands
the 39th clause of the present Act. It is a sta-
tute of limitations providing that the title in
this court shall not be avoided by a bankruptcy,
unless the bankruptcy be adjudicated before
the gazetted day of hearing, or within two calendar
months from the vesting order, and this limitation holds
good, however early may be the act of bankruptcy which
can be proved, and whether the debt for supporting the
fiat was duly scheduled or omitted. I feel assured that
neither Lord Eldon, in assenting to this enact-
ment, nor the judges of the King's Bench in
deciding " Jellis v. Mountford" had any notion of
dealing with a case such as is argued now—the
the debts of an old insolvency interfering with new as-
sets in a new insolvency. Notwithstanding some re-
marks that are questionable, and others that are super-
fluous, I feel confident both that the decision was a
sound and wise one, and that it is quite inappli-
cable to the case now before us. In showing that
this case is no precedent for the question before us, I
excuse myself from imitating the practice in bank-
ruptcy, which professes to be founded upon it; [but
as two cases upon that practice have been reported. I
will advert to them. In ex parte "Barrington," 2 Mont.
and Ayrton, 225, which was before the Commissioners of
the Great Seal in 1835, it was held that such a debt as
we speak of may support a fiat, and in ex-parte " Fen-
wick," 14 months afterwards, this was followed by the
Court of Review. In the former case the Court took
time to consider the judgment, so that one may expect
to find whatever strength of argument the subject ad-
mits of. Lord Commissioner Shadwell begins with saying,
" The question is, whether this fiat be good, the peti-
tioning creditor being inserted iin the schedule in the
Insolvent Debtors' Court. It is insisted that his name
and debt being therein, the debt is gone and destroyed
for all purposes." Now, I must be excused for saying
that I do not find any sushi monstrous proposition
put forward by counsel in that case or any other
that I have seen, and yet neatly the whole
of these judgments are employed in combat-
ting- this imagined proposition. The Learned
Judge, who quotes at length many clauses of the sta-
tute, proceeds to repeat that " the Legislature has not,
in positive terms, declared the debt extinct for all pur-
poses. After quoting the 57th section, excepting only
the very important words, " if it shall appear that he is
of ability to pay," his Lordship observes—" This clause
clearly shows that the debts still exist in the contempla-
tion of the Legislature." There is then, this comment
on the 91st section: "It appears to me that
this section applies only to legal proceedings,
for though the word `suit'
might apply to a suit in
equity, yet at law the proceeding is denominated a suit.
Moreover, this section speaks of " reply," which expres-
sion is inapplicable to a suit in equity. The judgment
then reverts to the main topic, saying, Even if this sec-
tion did apply to suits in equity, the language of the
whole Act proves that no intent to dis-
charge from a debt existed:" Lord COM.
missioner Bosanquet speaks to the same effect
excepting that he does not declare proof in bankruptcy
to be a suit in equity. He inquires only whether the
debt was utterly dead and gone, saying, " The ques-
tion is whether the Act discharges the debt? Is the
discharge complete in all respects, or qualified? If the
Act intended to discharge from the debt, it is very
badly worded. If the Act intended completely
to discharge the debt, it would have been easy
to have done so, and there is nothing to enable a Court
to draw an inference the other eea—.,
e The leading idea
that is thus laboured, is that the debt is not absolutely
extinct. No one ever thought or said that it was. The
idea is suggested only by those who combat it. The
most superficial notice of the statute shows that the
debt is not extinct. What then ? A debt may be ex-
tinct for one purpose, and not extinct for another.
The debt of one who has his debtor in execution is ex-
tinct her some purposes. He cannot sue him again, and
he cannot have execution against his property. Accord-
' in l he cannot institute a bankruptcy which is both a
g 9/