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

N 7 JULY 5, 1848.

suit and an execution. But his debt is not extinguished
to all purposes. If another man has instituted a bank-
ruptcy he may release the debtor and prove the debt
also; if the debtor die in custody, the right of execution
against land and goods is revived. Let us not then be
told that the debt, because not absolutely extinct, can
share in the scramble under successive insolvencies, and
that a court of law is not to consider in any case the
principle which should admit it or exclude it. Such in-
difference to principle does not characterise the decision
on matters of bankruptcy. Observe the cases in which
the Courts have refused&to give effect to a second com-
mission, where the party is uncertificated in the first; or
to a third, where he has not paid 15s. in the second. In
those cases judges might have said, " A debt is a debt, a
trading is a trading, and an act of bankruptcy is an act
of bankruptcy; and we sitting in a court of law must
pronounce the commission to be valid." They have not
so reasoned; they have embraced views of public policy
and declared the nullity of assignments where there can
be nothing to assign—views sanctioned by a long series
of decisions of Lord Eldon, Lord Tenterden, and Sir
Nicolas Tindal, and which stand unimpeached, although
the words in which they have sometimes been expressed
were disapproved by a Lord Chancellor, as importing a
limit to his power. I allude to them only for vindicating
in the consideration of such questions a regard to
principles and policy. In the second case, ex-parte " Fen-
wick," 2 Montague andjAyrton, 681, I find one remark
not in the other case, namely," This case is like a trust
deed of composition without a release." It seems to me
that there is the greatest dissimilarity. After such a
deed there are covenanted instalments, the full payment
of which is frustrated by the bankruptcy. Something,
therefore is to be claimed under the bankruptcy. No
such payment can be in progress after an insolvency ;
on the contrary, all is gone save a contingency, with
which bankruptcy is utterly inconsistent. While the
operation of a discharge by this Court thus prohibits
proof in bankruptcy, the statute of bankruptcy itself
seems to repudiate such a proof. By the 46th section
proof may be made by a creditor. Creditor means a
man armed with ordinary legal rights. Now, such
rights belong to the old creditor we speak of. By the
51st section, another sort of person may prove; one
who has given credit to the bankrupt for something
payable at a future time. No such credit exists in the
case we speak of ; for the indefinite delay of payment
is not credit, but the act of the law, and no future time is
ascertainable. By the 56th section another sort of per-
son may prove, one whose debt is payable on a contin-
gency; or, if hereafter such contingency shall happen,
then he may prove the debt. There is, indeed, a con-
tingency on which the claims we speak of may be
brought forward, but it is a contingency incapable of
valuation, and therefore incapable of proof—the contin-
gency of solvency and surplus. Moreover, it can never
arise, so long as a certificate is worth asking for. I can
imagine that one, who admits the strength of what has
been urged on the words and principle of insolvent-law,
to be perplexed with a seeming difficulty, and to argue
thus:—" If the bankrupt shall get his certificate, it will
bar all debts, and among them the old insolvency debts,
operating a satisfaction of the judgment ; therefore the
old debts must be proveable." I would answer by say-
ing, " We do not reason from certificate to proof, but
from proof to certificate." If I show that such a debt is
not to be proved, it follows that the certificate has no
effect upon it. Look, however, again to the
Act, and study the certificate clauses. The ex-
tent of the privilege gained to a man by
that instrument will appear by the provisions
made for his availing himself of it. By the 42d clause
of the last Bankrupt Act, " If ho shall be arrested or
have any action brought against him for any debt, claim,
or demand hereby made proveable under the commis-
sion, he shall be discharged upon entering an appear-
ance, and may plead that the cause of action accrued
before ho became bankrupt." The discharged insolvent
is as a man who needs not a certificate to shield him
against arrest or action for a debt scheduled in this court.
Again,- "If he shall be taken in execution or detained
order him to be discharged." The debt of an old insol-
vency n prison
has tbber u e
es
ecbht a dei
n ebdt ,
before claim, o
certificate,
demand,
awherejudge
mentshall
is no object of this privilege; the bankrupt was
safe against arrest and execution before the certificate
existed or the bankruptcy either. For all these reasons
I cannot help thinking that the Courts of Bankruptcy
have been wrong in admitting old insolvency creditors
to a dividend. The question has not arisen in a court of
law. It might arise, if the Court of Queen's Bench were
asked, on the ground of a certificate' to prohibit this
Court from exercising its powers over a surplus estate
acquired bys a party tater his bankruptcy. The question
would be a new one in that court, so, perhaps, would
be the assertion of the obvious principles of the in-
solvent law made by Mr. Cooke in this argument,
principles which have long been familiar to my appre-
hension, and cherished for the sound justice in which
they are founded. My conjecture is that the Court of
Queen's Bench would recognise those principles, that
they would hold the old debt not proveable, and that the
contingent interest left to the creditor by the insolvency,
the right to ask the aid of this Court in the event of the
debtor owning some day a surplus estate, is an interest
not capable of proof, and that if ever such predicament
shall be attained, the peculiar powers which the law re-
served to this Court at the insolvency, will survive, not-
withstanding any number of bankruptcies and certifi-
cates that may have intervened. There is one other
point alluded to in the cases—namely, that payment of a
scheduled debt may be sought in bankruptcy, because
this process is not by name prohibited. It appears to me
that all individual suit whatever is prohibited. Besides
definingt
oo
n f the
justlydebtor's
con-
strued are ample for the purpose. The words are—
" Any suit except upon the judgment." What is suit upon
the Judgment? It is the execution or other process
which this Court may permit against a state of sol-
vency, and the petitions and applications made to this
Court for sanctioning such process. This is itself
a liberal use of the word suit, and the
one clearly-expressed exception takes away all
doubt from the extent of the thing spoken of, the suits
which are prohibited. All is prohibited, except upon
the judgment under the control of this Court. There is
high authority that favours us in claiming the most
liberal interpretation to the words of the 91st section,
which protect the discharged insolvent from the aggres-
sion of individual creditors. Lord Mansfield had held
that the statute of limitations did not prevent a creditor
from taking out a commission of bankruptcy, as it ex-
tended only to the remedies by action mentioned in the
statute, not extinguishing the debt, nor taking away
other remedy—" Fowler v. Brown," 1 Cooke's B. 4. 13.
This was overruled by Lord Eldon. He gave a larger
and more liberal interpretation, saving, in his admirable
and most deliberate judgment, in ex parte "Dewdney,",ls
Yes. 477—" A commission of bankruptcy is nothing more
than a substitution of the authorities of the Lord Chan-
cellor enabling him to work out the payment of those
creditors who could by legal action, or equitable suit,
have compelled payment ; and the objection upon the
statute of limitation may be sustained." Now, when
we imagine in either statute what proceedings are ex-
cluded, the words of' the Insolvent Act are far more
comprehensive than those of the Act called the statute
of limitations. Every limitation in the 21 Jac. 1., c. 16,
is applied in terms to some particular sorts of action, and
to those only ; there are no general words whatever, and
yet the principle of the Act has been ruled to extend to
proof in bankruptcy and to proceedings in equity, both
unmentioned in the Act. Much stronger are the grounds
for construing liberally restriction of suit in the Insol-
vent Act. There is the large general expression " any
suit," strengthened by one most pointed exception, the
expression which excludes the exceptions—that which
is excepted in the proceeding upon, and in aid of the
judgment, and the policy of the provision becomes still
clearer, when we see such proceeding limited to the case
of ability to pay. The one case in equity, quoted at the
bar, is in the strongest confirmation of the principle by
which I abide. Those Courts maintain their right of
deciding with assets for the scheduled creditors of de-
ceased persons, who have at any time obtained the
benefit of an Insolvent Act, but those Courts aid them
only with that estate which shall survive the payment
of later creditors. This principle is derived from the
Insolvent Act; it is declared to be so, and cannot be
traced to any other source. In "Barton v. Tattersall," 1
'hiss. and Mylne, 237, Sir John Leach decided, where a
party had in his lifetime gone through two insolvencies,
that the new debts which had never been in this Court,
must be paid first; that the debts of the second insol-
vency must be paid next, and those of the first insolvency
paid last, and why last? Because by the relation estab-
lished between debtor and creditor by that first in-
solvency, a relation so discernible in the policy of those
laws, they could only share in future property, when it
should present a surplus after satisfying now debts. I
think that lam supported by the words of the written
law, by the worthiest portion of precedents, and by the
whole weight of principle in saying that the old credi-
tors cannot be admitted to share under a new insolvency
of their debtor at an after period of his life.

OUTLAWRY.—The following persons were demanded
under outlawry process issued against them into London
at the busting, held on the 3d of July, 1848, at the
Guildhall, London:—Frederick William Loveband Pol-
lard, at the suit of Robert Merton; John Penlease, at the
suit of Thomas M'Gauran; John Busk, at the suit of
Abraham Joseph; Samuel Ellis Bristow, at the suit of
the Hon. Francis Henry William Needham; Joseph
Pike, at the suit of Sir Peter Laurie, Knt., and others;
John Ainslie, at the suit of George Webster; Henry
Patteson, at the suit of Thomas Flight; George Stanley,
at the suit of Anne Griffiths and another; Thomas
Henry Horsford Bingley, at the suit of Robert Gordon;
James Ball, at the suit of Kennett Kingsford, the elder,
and others.

THE NORTH-WESTERN RAILWAY.—On Saturday
the mail express and first-class trains on this line of
railway were accelerated, the distance betwen Rugby
and the other stations being performed in from thirty to
fifty minutes less time than formerly. An entire alter-
ation also took place in the time-table.
Government are raising sea fencibles on this
coast. It is expected that this town will furnish about
300. They will be exercised, as formerly, ten days in
the course of the year, and be paid 2s. a day. Our
young fishermen eagerly enrol themselves,
as, in the
event of a war, it would guarantee them against impress-
ment,—Brighton Herald.