Re ARTHUR PERRIN, a Bankrupt. [Bankruptcy.]

• Jurisdiction: Ireland
• Judgment Date: 23 May 1842
• Date: 23 May 1842
• Court: Bankruptcy Court (Ireland)

Bankruptcy.

In re ARTHUR PERRIN, a Bankrupt.

Whitmore v. Robertson 8 Mees. & Welsby, 463.

Ex parte Hitchens Montague, 225.

Burt v. Bernard 1 Flan. & Kelly, 414; S. C. ante, 328.

Godson v. Sanctuary Barn. & Ad. 255.

Read v. Davis Ir. Eq. Rep. 153.

362 CASES IN. EQUITY. I842. Bani&teptey. In re ARTHUR PERRIN, a Bankrupt. May10, 11, (In Bankruptcy.) 23. The 126thsec- Tips was a petition of appeal from the decision of his Honor Mr. Com tion of the 6 missioner Macau in the above matter. W. 4, c. 14 (the Irish The case was argued before the Commissioner in the Court of Bank- Bankrupt Act) uments ruptcy on the 1st of February 1842, and the facts and arg are has not been ' repealed by the reported ante, p. 89. 3 & 4 Vie. c. 105. The word The Attorney-General and Mr. James Dwytr appeared for the " creditors " in the proviso in appellants. the 3 & 4 Vic. c. 105, s. 22, which enacts Mr. Sergeant Greene, Mr. Fitzgibbon, Q. C., and Mr. Creighton, for " That as re gards pur- the respondent. chasers, mortÂgagees or cre ditors who The LORD CHANCELLOR. shall have be- This is a case of very great importance, and I shall not part with it at come such be- fore the time present on one of the points ; but on the first point I think there is no appointed for the commence- difficulty, namely, that the simple contract creditors having proved in the went of this matter to an amount exceeding £1100, as a class are protected by the Act, shall not affect lands, 126th section of the 6 W. 4, c. 14. Supposing the Act of Victoria to &c. otherwise apply generally to this case, there is contained in it a proviso which I than as the same would find is in these words : "Provided also, that with regard to purchasers, have been af fected by such "mortgagees or creditors, who shall have become such before the time judgment if "a ppointed for the commencement of this Act, such judgment shall not this Act had not passed." "affect lands, tenements or hereditaments, otherwise than as the same Held to in- "would wou have been affected by such judgment if this Act had not passed." elude simple contract cre- Now, it is said this applies to creditors ejusdem generis, as those before ditors. A prior Act named "purchasers" or " mortgagees ;" and it was also put in connexion of Parliament with certain otherprovisions with regard to the right to issue an elegit, may operate on a subsequent and the right to have a receiver under the Receivers' Act, and then that one without express words. these persons stand in the situation of simple contract creditors, and are not entitled to the saving clause in this part of the Act of Parliament. I cannot say I am of that opinion, because the words are used generally; and wherever the Legislature does not intend that the word "creditors" should be used in a general sense, it is always used with such a distincÂtion as will shew that general creditors are not meant to be dealt with, as, for instance, " judgment creditor," " judgment debtor." Besides, simple contract creditors are directly within the mischief intended to be remedied by the Act of Parliament. It meant to preserve prior rights as they existed before the passing of the Act. I am told that the CASES IN EQUITY. 363 assignee should not be considered a creditor unless a commission had actually issued ;-that, in point of fact, no commission had issued in this case until the time appointed for the commencement of this Act ;-that after the commission had issued, the assignee might be considered a creditor on a level with and entitled to rank as a "purchaser" or " mortgagee," because the estate is then vested in him. The clause does not say so. It gives distinct rights to judgment creditors, and does not affect the rights of purchasers or mortgagees who became such before the Act passed. Now, what was the situation of these simple contract creditors before the Act passed ? If the commission had issued before the passing of the Act, the effect of it would be, that the judgment being one by confession, would have been levelled by the operation of the 126th section of the 6 W. 4, c. 14, and the judgment creditors would come in pari passil with the simple contract creditors. But the words in the clause contained in the 22nd section of the Act of Victoria are general, there is nothing to restrain them, the simple contract creditors would have a right taken from them according to the construction contended for ; whereas, if I give the construction which I think a think a right one, I do no injury to any body, I give the judgment creditor all the benefit of the Act of Victoria when it came into operation, but I do not take from him any thing which he had before ; I leave him in possession of all his rights as they stood before the passing of the Act, and I give the other parties the same rights which they had at the same period. As to this point, therefore, I am clearly of opinion that the decision of the Commissioner was right, and I must therefore affirm it. The other question is much more difficult, and likewise much more important, viz., whether the 126th section of the Bankrupt Act has been repealed or not by the Act of Victoria. That section excludes a creditor who has security for his debt, from receiving more than a rateable part of such debt. I am told, that inasmuch as no execution was issued here, and as the latter part of the 126th section only refers to those...