Vermont watchman and State journal. [volume] (Montpelier, Vt.) 1836-1883, 1844-04-12
DISTRICT COURT OF THE U. s., VERMONT
DISTRICT-IN BANKRUPTCY.


sentinr himself to be unable to meet his debts and
engagements, and praying for the benefit of the
bankrupt law. The petition was fled March Sd
1913, and no proceedings having been had upon il
in consequence of the Clerks refusing to issue the
usual order, the petitioner now filed his motion foi
an order of notice to creditors and others to shew
cause why he should not be declared a bankrupt
Prentiss, j. In the matter of Dduid Hoi0es, G
Law Reporter 297, it was determined by this court
that petition for the benefit of the bankrupt law,
presented and filed on the 3rd of March, the day
the law was repealed, was too late, and that no or
der could be taken upon the petition other than to
dismiss it. An opposite decision having been re-
Gently pronounced in neghboring circuit L am
now called upon to re-examine the question; and |
can very freely say, that it is not at all subject of
regret that an opportunity is thus afforded me to
review my former opinion, and to override it if
found TO rest on mistaken principles or unsOund
reasoning. When Lord Hardwck, having reason
to alter his opinion on particular occasiOn said he
was not ashamed of doing so, for he always thought
1t much greater reproach in Judge to continue
in his error than to retract it, he exhibited
ample of true wisdom and real elevation of char
acter which it would be well for all judges to take
as guide. hope am capable Of approaching,
as it deserves, this high example Of judicial intelli
gence and virtue and that | shall never be so for
getfu of what is due to an enlightened and scru-
pulous discharge of duty, as to fail to follow the
example OIL every III proper OCSuSlOl'
The question presented in this case first came
before me at the last May term of this court in the
matter of Wdrd and Trial u.s. SoSSon, a case of
compulsory bankruptcy. | then considered the
question, and came to the conclusion that the petit
ton could not be sustained; but as the case invol
we'd property to a large amount, and the question
raised was one of some novelty and much impor-
lance, | thought it would be advisable, especially
as there were several other cases depending upon
the decision TO adjourn the question into the Cir
cult Court for final determination. | accordingly
did so but no hearing being had upon the ques
ton in the Circuit Court, the counsel for the pet
tioning creditors at the October term declining to
proceed further upon it, and the case of Dduid
HotUes coming up soon after, delivered the opin-
ion have already mentioned. AS to the correct
ness and soundness that opinion, considering the
question as question of law depending upon rules
and principles Of law, | certainly entertained no
doubt before the publication of the decision in the
matter of Joseph Robinson. 6 Law Reporter, 1872
have carefully read that case, and well weighed
the authorities, principles and reasoning urged in
it. The decision, considering the high source from
which it proceeds, is entitled to high respect and
Difference; but like all other decisions under the
bankrupt law in other circuits, it is of no binding
authority here. Notwithstanding all that is urged
in the case am obliged to say, that still remain
of the opinion that petition, presented and filed
on the day the act repeating the bankrupt law was
passed, cannot be sustained.
1t appears to me, that the rule that there are in
law no divisions fractions of day, if applicable
to any question whatever, is emphatcally applica
BILE to this The rule, in my apprehension, is not
to be treated as q mere unmeanng legal fiction, eX
listing in speculation and theory only, and of no
practical use or value. That there is no apporton-
ment Of single day, or any account made Of hours
and minutes, besides being true by general habit
and custom in the transaction of much of the bust
of 60 10 r,,lnn pfl au HnI ip
convenience and utility, and is of real practical eff
fcacy, Us far it prevails in avoiding the uncer-
tainty and difficulties attending questions concern
ing minute and unmportant divisions OF time. STILL
the rule, though general rule Of law, does not APP
ply in all cases. but like most other general rules
is subject, in its application to just and reasonable
exceptions. 1t does not prevail in questions con-
corning merely the acts of parties, where it be-
comes necessary to distinguish and ascertain which
of several persons has priority Of right; where
a bond and release are executed on the same day
where bond is executed by woman the same day
she marres; where the disseisin is done the same
day the writ is tested; where goods are seized I'M
der an execution on the same day the defendant
commits an act of bankruptcy where two writs of
execution arc delivered to the sheriff on the same
day or where the question is as to the time of
suing out writ or delivering a declaration; in !
short, in most, if not all questions respecting pr-
vate transactions, where prlorltles in single day |
may exist and it is practicable, as well as essential
to the purposes Of justice, to inquire into them.
But though divisions of day are allowed to
make priorites in questions concerning private acts
and transactions, they are never allowed to make
priortes in questions concerning public acts, such
as Legislative acts or public laws, such judicial
are matters of record. When II |
was the law in England that every act of Parlia- |
nent took effect the first day Of the session unless
the act appointed another time for its commence
nent, it was held, that in the case OF two acts made
at the same session, one could not have priority |
over the other, for being made at one day and in
slant in contemplation of law, they should be con-
strued as if all was in the same act. So in regard
to judgments, while they were considered as rem
lered on the first day of the term unless there
some memorandum to the contrary, the same prn
cple prevailed. In Pugh u.s. Robinson Term
Rep. IL, Butler, j. said, there being no fractions
of day in judicial proceedings, where there are |
two judgments, both referring to the same day, the
priority of one cannot be averred. The doctrine
holds equally good under the modern
which require an endorsement to be
made upon every act of Parliament of the day of
its being approved by the CROWN and an entry Of
record of every judgment Of the day when signed, |
Lord Mansfield, in Conbe Us, Pit, 3 Burr, 1923,
recognizes and admits the general rule. After OBJ
serving that the law does not IN general allow of
the fraction of day, he says it admits it in cases
where it is necessary to distinguish, and he does
not see why the very hour may not be shewn where
it is necessary and can be done To this agree
But is it necessary, and can it be done in this case
That is the question. If it cannot be done, or is
not proper to be done, then the case falls within the
general Iule, and the general rule must govern it
1t seems plain to me, that the time when an act,
which is approved and signed by the President,
takes effect must appear, and can properly appear
only, from the act ITSELF BY standing general
enactment, the act, when approved and signed, is
to be forthwith lodged in the Department of State
and published; and the act SO lodged in the De
partment of State, or certified transcript or au-
thorized printed copy of it, is of course the only
proper evidence, not only of its existence as law,
but of the time of its commencement; though it
may be necessary and admissible in some instan- |
ces, particularly when an act becomes law by
not being either signed Or returned with objections,
or by being returned and repassed by Congress- to
carry back the inquiry to the legislative journals
But it would be as unsafe, as it would be unfit, to
allow the commencement of public law, whenev-
er the question may arise, whether at near or dis
tant time, to deDend uDon the uncertainty of parol