1866. In re BOWIE. mise seems to me impliedly to sanction open compromise. INSOLVENCY. So I think that the Bankrupt Law of Victoria, in the interval between the 5th and 7th Vic., differed from that of England as to the power of creditors to exact terms; and that if these terms were for the benefit of all the creditors, although it might be a compulsion upon the Insolvent, still, if it was an open matter, there was nothing to prevent the creditors imposing conditions as to the allowance of a certificate. Then, in the interval between the 5th and 7th Vic. here, the English Act was passed transferring the discretion as to the certificate from the creditors to the Judges. Our Act, the 7 Vic., adopted that change, and authorised the Chief Commissioner to grant a certificate without qualification, or subject to such conditions as the circumstances might appear to him to require. For this reason, it appears to me that according to our Acts the Commissioner has a discretion of imposing a pecuniary payment as a condition precedent to granting the certificate; that he may do now what the creditors might previously have done for themselves. There is one case which occurred before my brother Barry-In re Burke-in which the learned Commissioner imposed a condition of payment to a particular creditor, and not to the creditors generally, and in that case the decision of the Commissioner was overruled; but upon reading the judgment I am not able to discover whether it is to be regarded as laying down a general principle upon the subject, or is restricted to that particular condition. There are cases in which some one creditor has been worse treated than the others, and orders have been made that the certificate should not protect against that creditor, although good against all the others, and I think there is power to do that. Such a case is Re Hammond, in which it was held that provisions for the payment of particular persons were not beyond the power of the Court, but as matter of discre tion, were not desirable. In Ex parte Culhane a certificate was granted, but limiting the protecting powers of the certificate until a particular sum of money, which appeared to have been improperly abstracted from the bankrupt's property, had been replaced. In that instance the Court did not deny the jurisdiction, but disapproved of the discretion exercised, subjecting a bankrupt, after obtaining his certificate, to the liability to pay anything. What was done in that case is pretty nearly tantamount to what was done by the learned Commissioner here, for the granting of the certificate, was postponed until some adjustment was made by which this fund should be brought back for the benefit of all the creditors. I do not think any distinction should be drawn as to the power of the Court to impose such conditions as between traders and others, though as to the discretion I should be more disposed to exercise the power of imposing such a condition upon a person having a fixed income, as in this case, than upon a trader. I should say that, generally speaking, no person ought to be left to enjoy a large income which he derives either from personal exertions or from a pension, without something being appropriated to his creditors, taking care, however, that the pinch upon. him is not carried to an undue extent. The present is a case which I certainly do not like to see as the first instance of the exercise of such a power, for this Insolvent has been subject to some especial hardships. He appears to have had a salary of £610 per annum, with various profits and allowances as the head of the Yarra Bend Lunatic Asylum. He lost that situation, and lost it under circumstances which forced him into very heavy costs in litigation with newspapers which had made attacks upon his conduct in it. It is not my province to judge of the propriety of those attacks or of the view the jury took, but he was dragged into litigation by 1866. INSOLVENCY. In re BOWIE. 1866. In re BOWIE. SUPREME COURT: VICTORIA. newspaper attacks, lost his situation, and a considerable INSOLVENCY. proportion of his previous emolument. He was at that time aged upwards of seventy, and is now upwards of seventy-four; he was granted by the Government a pension of £287 10s. a year, and he was then forced, after a long discontinuance of private practice in his profession, to seek to resume it, which he seems to have done with some success. He has a wife and two daughters to maintain, entirely dependent upon his exertions. He states in his evidence that under these disadvantages, he has reduced his debts by £600 since he has lost his situation. He had a claim against the Government for improvements made by him at the Yarra Bend whilst he was in his situation, for which he expected to get £500, but ultimately got £120. A man thus circumstanced is an unhappy instance of the application of the principle which I am now about to recognise, namely, that an Insolvent may be called upon to pay some of his debts before he enjoys his income. I am inclined to adopt the principle followed by the learned Commissioner, but not to the same extent; and I propose to vary the condition of the certificate by requiring the Insolvent to pay 58. in the pound on his debts, exclusive of past dividends, which I understand have been very small, instead of 10s. in the pound as decided by the learned Commissioner. RE WILLIAM BARCLAY, AN INSOLVENT. 1866. INSOLVENCY. July 5, 15. The estate of an insolvent resident at Ballarat was sequestrated, and the Gee sioner and Official Assig nee were WILLIAM BARCLAY, residing at Ballarat, petitioned for sequestration of his estate as insolvent under the provisions of the "Insolvency Statute 1865," and an order was made placing it under sequestration in the hands of Charles Babington Brewer, Commissioner of Insolvent Estates for the Geelong Circuit Court District, and James Simson, the official assignee who acted for that district, was appointed assignee. The original Geelong Circuit District, as constituted by proclamation of 24th March, 1852, included Bal- Act giving larat. The Act 18 Vic., No. 11, authorised the appointment jurisdiction to of a Commissioner of Insolvent Estates for the Geelong Circuit District, who was accordingly appointed for that district. After his appointment, Ballarat was included in a new Circuit District, and was thereby withdrawn from the Geelong Circuit District. The " Insolvency Statute 1865," No. 273, repealing 18 Vic., No. 11, re-enacted its provisions as to the appointment of a Commissioner, as follows:-"The Governor, with the advice of the Exe"cutive Council, may appoint a Commissioner of Insol "vent Estates who shall have jurisdiction in and for that "portion of Victoria forming and being the Geelong Cir"cuit District." The "Insolvency Statute 1865 named in the order. At the date of the a special Commissioner for the "Geelong Circuit District," 18 Fic. No. 11, Ballarat formed part of that district. At the date of the been with- that district by proclama tion, although Amend- the Geelong Commissioner Held, that ing Act," No. 300, declared that Charles Babington Brewer retained his should be deemed to have been at the date of the coming under the Act jurisdiction into operation of the said statute Commissioner for the No. 11. Geelong Circuit Court District, as if he had been duly appointed under the said statute. Meetings had been held in Barclay's estate, and debts proved before the Geelong Commissioner, and the Insolvent had applied for his certi the "Insol vency Statute 1865," in referring to long Circuit District," must be construed as referring to the district as existing at the time of the passing of that statute; that the Geelong Commissioner had therefore no jurisdiction; and that the order of sequestration was void and could not be amended under "Supreme Court Rules," cap. x., sec. 26, which rule has no application to proceedings in rem. 1866. In re BARCLAY. ficate. A creditor obtained a rule nisi to amend the order INSOLVENCY. by substituting the name of the Chief Commissioner for the Geelong Commissioner, and that of a Melbourne assignee for the Geelong assignee; or in the alternative to set the order aside on the ground that Ballarat no longer formed part of the Geelong Circuit District, having been withdrawn from it by proclamation before the passing of the Insolvency Statute. Mr. Lawes now moved the rule absolute. Mr. J. W. Stephen for the official assignee.-Every intendment must be made against an alteration of the law by the consolidating statute. The Act 18 Vic., No. 17, referred to the Geelong Circuit Court District as a district known by geographical boundaries. It did not contemplate the appointment of a Commissioner having jurisdiction in the Geelong Circuit District as it might be from time to time altered by proclamation under 15 Vic., No. 10, but in a certain tract of country then conveniently designated as the Geelong Circuit District. When this district was diminished by proclamation, the jurisdiction of the Commissioner was not diminished with it; the proclamation could not alter the law. The expression "Geelong Circuit District" consequently bore two meanings at the same time. Under the Insolvent Acts, it included Ballarat ; under the "Supreme Court Act," it did not. When the expression is used in the Insolvency Statute, it should, therefore, be understood with reference to the Insolvent Act, and not to the "Supreme Court Act," and must be taken to describe the district as known by certain geographical limits, not as defined by proclamation. The objection that Ballarat is excluded is, however, removed by the Insolvency Statute Amending Act, which shews a clear intention to continue the Commissioner under the Statute in the same position in all respects as before the statute. As to the official assignee having been wrongly appointed, the objection is in |