1842. In re PERRIN, a Bankrupt. security for his debt "that is, having "security" by judgment or Bankruptcy, otherwise-" or having made any attachment in Dublin or any other "place, by virtue of any custom there used, of the goods and chattels of "the bankrupt, shall receive upon any such security or attachment more "than a rateable part of such debt;" the second clause begins as an exception, although, as far as judgments are concerned, it is not properly an exception, but rather a proviso; for it does not except judgments from the operation of the previous enactment, but provides that a judgment creditor, who shall sue out execution upon his judgment, and have same "served and levied before the bankruptcy," may avail himself of such execution. The words are, 66 except in respect of any execution or "extent served and levied by seizure upon, or any mortgage of or lien upon, any part of the property of such bankrupt, before the bank"ruptcy." Then comes the proviso-" Provided that no creditor, although for a valuable consideration, who shall sue out execution upon "any judgment obtained by default, confession, or nil dicit, shall avail "himself of such execution to the prejudice of other fair creditors, but "shall be paid rateably with such creditors." This proviso is really an exception out of the previous exception, depriving even executions of all priority or preference if sued out upon "judgments by default, confession or nil dicit." Now, without at all impugning here the qualification given to this proviso by Godson v. Sanctuary (a), I may say that no possible construction of the 126th section, can give any preference to mere judgments; and where, as in the present case, the question that arises in bankruptcy is not upon an execution, but a judgment merely, the distinction which I have pointed out is not unimportant. This 126th section repealed the 4th section of our first Bankrupt Statute, 11 & 12 G. 3, c. 8, whereby "priority and preference" were preserved to judgments obtained before the bankrupt became a trader liable to the bankrupt laws; and this being considered unjust, as disturbing, if not defeating subsisting rights, the 86th chapter of 2 & 3 Vic. was passed, restoring their "priority and preference" to judgments obtained before the bankrupt became such trader, and before the 1st July 1836, the date when the 6 W. 4, c. 14, came into operation. No corresponding enactment ever existed in England. Such, then, being the state of the law in Ireland, we are to consider the effect upon that law of the bankruptcy clause in the 22nd section of 3 & 4 Vic.; and before discussing the true construction of the second proviso, I desire to observe that the disjunctive conjunction "connects the bankruptcy clause, not with the sentence immediately preceding "or in cases of judgments already entered up," &c., but with the first part of the proviso-thus: "provided that no judgment "creditor shall be entitled to proceed in Equity to obtain the benefit of "" nor (a) 2 B. & Ad. 255. "such charge," &c. "nor shall such charge operate to give the judgment creditor any preference," &c. What judgment creditor? The judgment creditor contemplated in the first clause of this proviso; and I have already remarked, that "no judgment creditor," at the beginning of this proviso, means, and can only mean, "no judgment creditor whose judgment shall be entered up after the 1st of November 1840." Therefore, if this were the true legal, as it is the grammatical construction of the first proviso, it would follow that the bankruptcy clause could apply only to judgments entered after that date, and that, consequently, no judgment entered before that date could claim any benefit under this 22nd section. But without expressing any opinion upon this point, and disclaiming all intention of pronouncing a judicial opinion upon any question except that which I am called upon to decide, I proceed to the second proviso, on which (as to this part of the case) my decision does rest. It is insisted that "creditors" in this proviso cannot mean simple contract creditors: first, because (as is alleged) simple contract creditors and their rights are not contemplated by the statute. But I cannot admit the correctness of this premise, for simple contract creditors and their rights must be contemplated wherever bankruptcy is contemplated; and bankruptcy is expressly mentioned not only in this very 22nd section, but in several others, namely, 8, 13, 27, 28, 29, 38, and 77. Besides, some of the most important sections of the statute refer necessarily to simple contract creditors-the first seven sections abolishing arrest on mesne process; the 8th substituting the new Act of Bankruptcy; the 9th as to outlawry and waiver; the 10th, 11th and 12th as to warrants of attorney; and several others, all expressly or necessarily include simple contract creditors. But, then, it is more closely argued, that "purchasers, mortgagees and creditors," used together, are words ejusdem generis ; and that, therefore, "creditors" can only mean such creditors as, like mortgagees, have a lien or a quasi lien on land. I am aware of the rule of construction which, when words are used in a descending scale, forbids us to give to a word inferior in the series, a higher and more extensive signification than that of the words which preceded. But I do not perceive how this rule interferes with our construing the word "creditors" to include those of the lower as well as the higher order. Then, it is further urged, that "creditors" in this proviso, and "creditors" in the similar proviso of the 19th section, must mean the same class of creditors; and that, as creditors in the latter proviso necessarily means judgment creditors only, so judgment creditors only can be included in the former. I shall not now say that this is ignotum per ignotum ; but even were this clearly established to be the true construction of the proviso in the 19th section (upon which I give no opinion), it would not necessarily follow that the same construction must be given to the 22nd section, as this section expressly legislates for the 1842. Bankruptcy. In re PERRIN, a Bankrupt. 1842. Bankruptcy. In re PERRIN, event of bankruptcy, which the 19th section does not seem even to contemplate. Let us, however, come to a closer examination of the bankruptcy clause and the second proviso together-" Nor shall such charge a Bankrupt. operate to give the judgment creditor any preference." The moment this word "preference" is used in bankruptcy, its meaning flashes upon every mind, however little conversant with bankrupt law; it is the familiar phrase used in the Bankrupt Statutes in both countries, to express priority or advantage, or benefit over the other creditors of the bankrupt. It is so used in several of the sections I have already referred to—it is unnecessary to multiply examples. Therefore, the words, "over other creditors," are necessarily understood after the word "preference ;" and being necessarily understood, they are there as forcibly as if expressed. I but translate the old legal maxim. I trust the utilitarian doctrine of the present day will not be offended at my quoting it in Latin-Quod necessariè intelligitur, id non deest. Let, then, the bankruptcy clause be read, "any preference over other creditors," and then the proviso immediately following, "that as regards purchasers, mortgagees or creditors:" and I would fain ask if any strong doubt could be reasonably entertained, that "creditors" in the bankruptcy clause and in the proviso, both necessarily included simple contract creditors? This is the construction which, after the fullest and most anxious consideration, I feel constrained to give to this proviso. I find nothing in the act to militate seriously against it; and it is consistent with what ought and what seems to have been the intention of the Legislature, not to defeat the rights of creditors subsisting prior to the 1st of November 1840. If this construction be correct, it only remains to inquire whether or not there be creditors in this matter "who had become such before the time appointed for the commencement of this act," i. e., the 1st November 1840; because, if there are such creditors, I am of opinion that this proviso protects them as a class. Upon reference to the file of proceedings, it appears that simple contract creditors, who were such before that date, have already proved to an amount exceeding £1100: as to them, therefore, "the judgment" of the claimants "cannot affect the lands, tenements or "hereditament of the bankrupt, otherwise than as the same would have "been affected by such judgment, if this act had not passed." It is to be noted that this interpretation makes the word "creditors" comprehend all the creditors of the bankrupt, of whatever class, whether by simple contract, or specialty, or judgment. It never occurs to judgment creditors, that they may be as deeply interested as simple contract creditors, in preserving and maintaining the just and reasonable principle of the commercial and bankrupt law, namely, that the entire assets, real and personal, of the insolvent trader ought to be distributed fairly and equally, without "priority or preference," among all his creditors, without distinction. There is nothing in the 3 & 4 Vic., c. 105, taking away the priority among judgment creditors themselves-and if the construction contended for on behalf of the claimants be well founded, a prior judgment creditor may sweep off the whole of the real assets, and leave as little for the puisne judgment creditors as for any other creditors of the bankrupt. The only fact that led to any serious doubt as to the correctness of this construction is, that the adjudication in this matter was after the 1st of November 1840—that is, after the commencement of the act. Had the assignee been appointed before that date, I do not preceive how any reasonable doubt could be entertained. I understand, besides, that I have the good fortune to concur in this opinion with the present Master of the Rolls, and that in the matter of Burt v. Bernard, determined in the present Sittings, his Lordship gave to the word "creditors" in the second proviso, precisely the same interpretation which I have here felt it my duty to give ; and in that case, also, the bankruptcy was after the 1st November 1840. However great my regard for that eminent person, I could not say errare mallem ; but I avow that I feel my own opinion powerfully strenghtened, if not absolutely confirmed, by the concurrence of a Judge, who, having while at the Bar, by high legal and equitable attainments, and most extensive practice, given the best proofs and promise of judicial fitness, has since evinced those rarer, but not less important qualities of the judicial mind, which make him an ornament to the judgment seat, and to his country. Besides all the foregoing considerations, there is another well deserving of attention; namely, under what circumstances a subsequent statute upon the same subject matter shall be held to repeal a prior one. In the 3 & 4 Vic. c. 105, I cannot find one word expressive of an intention on the part of the Legislature to repeal the 126th section of our great Bankrupt act, the salutary provisions of which are for the advancement of trade, and the protection of commercial credit, the very essence of which is mutual confidence; and this mutual confidence must be seriously prejudiced by giving to judgments the priority contended for, in the event of the bankruptcy of the conusor. Blackstone says (a), "When the common law and a statute differ, the common law gives place to the statute, and an old statute "gives place to a new one; and this, upon a general principle of universal "law, that 'leges posteriores priores contrarias abrogant;' consonant to "which it was laid down by a law of the Twelve Tables at Rome, that "quod populus postremum jussit id jus ratum est. But this is to be "understood only when the latter statute is couched in negative terms, "or where its matter is so clearly repugnant that it necessarily implies a "negative. But if both acts be merely affirmative, and the substance "such that both may stand together, here the latter does not repeal the "former, but they shall both have a concurrent efficacy." In Viner (b) it is said “leges posteriores abrogant priores. But although this holds "in thesi, yet it does not hold in hypothesi, if the last act be not con 66 1842. Bankruptcy. In re PERRIN, a Bankrupt. 1842. Bankruptcy. In re PERRIN, a Bankrupt. "tradictory or contrary to the former, but if it be only so far differing or disagreeing that by any other construction they may both stand together, "it is otherwise." This is also held in Foster's case (a). In Hayden v. Carroll (b), it is said "There is no point more clear than that a subsequent "affirmative statute may repeal a prior one if the words are contrariant. "But it is equally clear, that if there be two affirmative statutes made "upon the same subject, in all points in which they do not contradict 66 one another, both should stand." The question then arises, can the 126th section of the Bankrupt Act stand with the Bankruptcy clause in the 22nd section, 3 & 4 Vic.. To determine this, let all the enactments in force in Ireland relative to judgments be construed according to a familiar and well-established rule-together. By the 126th section judgments were cut down to a level with simple contract debts. Next came the 2 & 3 Vic. c. 86, restoring to judgments their "priority and preference," if entered before the trading, and before 1st July 1836; and then the 22nd section, 3 & 4 Vic. Let these three enactments, all relating to the same subject matter, be read and construed, as if constituting parts of the same statute; and the result might be that the bankruptcy clause, so far from enlarging the rights of judgment creditors, imposed on them an additional restriction. In other words, that to entitle a judgment creditor to the benefits given by the 22nd section, his judgment, in case of the bankruptcy of the conusor, must be entered up not only before the trading, and before the 1st July 1836, but also, "one year at least before the bankruptcy."But I give no opinion upon this construction; and merely mention it to remove any impression that it had escaped my attention. I regret, that my observations upon the first part of the case have run to such a length; and must, therefore, curtail very much those relating (a) 1 Coke, 119. |