1869 ELLIS v. McCORMICK. cause the arrest of the defendant without obtaining the consent of the court of bankruptcy. The affidavits filed on shewing cause disclosed that the requisite assents of creditors to the deed had been calculated as to value on the principle of excluding from the calculation the amount of secured debts, and if the secured debts were taken into account the requisite majority of three fourths in value had not assented to the deed. There was a clause in the deed by which it was "agreed and declared between the parties, that unless a majority in number, representing at least three fourths in value of the creditors of the defendant, whose debts respectively amount to 107. and upwards, should execute the deed, or in writing assent thereto, or approve thereof, within twenty-eight days from the date thereof, then the deed, and every clause, matter, and thing, therein contained, should be completely void and of no effect." Quain, Q.C., and R. G. Williams, shewed cause. The secured debts ought to have been taken into calculation: Wittaker v. Lowe. (1) The deed is therefore invalid under s. 192 of the Bankruptcy Act, 1861. The deed could not have been pleaded to the action, as it contains no release; but if it could have been pleaded, Rossi v. Bailey (2) shews that it must be pleaded and cannot afterwards be set up as a protection under s. 198. If the deed could have and had been pleaded, and owing to the want of the requisite assents it turned out invalid, it is clear it would have been no defence; so, if it turn out invalid, it can be no protection under s. 198: otherwise the defendant would be in a better position than a debtor who had a deed containing a release. If the deed is void, the plaintiff and the other creditors are remitted to their legal rights: Ex parte Banfield. (3) If there be any doubt what the effect of a certificate of registration of an invalid deed in general may be, the proviso of the present deed, that it is to be void unless the statutable assents be obtained, puts the matter beyond doubt, and the deed being void the certificate falls with it: Baker v. Painter. (4) Ilderton v. Jewell (5), and Leigh v. Pendlebury (6), are (1) 35 L. J. (Ex.) 44; 4 H. & C. 109. (5) 32 L. J. (C.P.) 256; 14 C. B. (N.S.) 665. (6) 33 L. J. (C.P.) 172; 15 C. B. (N.S.) 815. distinct authorities that a certificate of an invalid deed is no protection; and these cases are not overruled by Lloyd v. Harrison (1), for that only decides that such a certificate justifies the sheriff in releasing the execution creditor from custody. (2) The certificate is not an absolute protection, but only against debts barred by the deed: Dignam v. Baily (3); and even assuming the debt to be barred, the costs are not: for this case is distinguishable from the late case of Simpson v. Mirabita (4), which overruled Maughan v. Finesberg (5), inasmuch as in the present case the costs were incurred by the act of the defendant himself, and these costs could not have been proved under a bankruptcy, under 12 & 13 Vict. c. 106, s. 181, if the judgment were obtained after the bankruptcy. W. G. Harrison, in support of the rule. No doubt, by the law as it must be taken to have been at the time the deed was executed, the assents were not sufficient; but 31 & 32 Vict. c. 104, s. 3 (6) has altered the law, and declared that the secured debts shall be excluded from the calculation; and that enactment must be construed as retrospective; there is nothing in it to confine its operation to deeds executed after the Act; and the rule as to excluding secured debts always obtained in bankruptcy. To hold the enactment retrospective will have the effect of upholding deeds such as the present, which would otherwise fall to the ground, and the trusts under which have for so long been carried out. If the defendant is not entitled to have the ca. sa. set (1) Law Rep. 1 Q. B. 502. (2) But in Ames v. Colnaghi (Law Rep. 3 C. P. 359), it was expressly held, as between the creditor and debtor, that a certificate of a deed under s. 192, although the deed was in fact invalid, was a protection to the debtor under s. 198, and that the certificate must be set aside by the court of bankruptcy, or leave granted to the creditor to avail himself of his execution. (3) Law Rep. 3 Q. B. 178. (4) Ante, p. 257. (5) Law Rep. 3 C. P. 318. (6) 31 & 32 Vict. c. 104, s. 3:— "No creditor shall be reckoned in the VOL. IV. computation of the requisite majority 2 B 1 1869 ELLIS v. McCORMICK. 1869 ELLIS v. McCORMICK. aside, at least he is entitled to a stay of proceedings: Ex parte Thatcher. (1) [MELLOR, J. The ca. sa. is regular; is there any instance in which the Court has interfered on the application of a defendant quia timet? (2) Quain, contrà. The plaintiff purposely abstained from taking that point, being anxious to have the judgment of the Court as to the validity of the deed.] By refusing this application, the protection intended by the statute is rendered incomplete. Even supposing the late statute not to be retrospective, and the deed therefore to be without the requisite assents, the Court will not allow its process to be abused, and the defendant by lying by so long has in effect acquiesced in the assignment for his and the other creditors' benefit; and in justice and equity he ought not now to be heard to say the deed is a nullity, and not binding upon him. MELLOR, J. I think this rule must be discharged. I must say that if the point had been taken by the plaintiff's counsel, I most certainly should have been of opinion that we ought not to interfere at the present stage; it may be that the plaintiff may never execute the writ. This point it was desired to waive on the part of the plaintiff, and, although it is quite sufficient to discharge the rule, I think that in deference to the wish of the parties we may express our opinion on the validity of this deed, as we have no doubt upon the construction of the statute, protesting at the same time against this being taken as a precedent for the interference of the Court, when the application is merely quia timet. The question, then, whether the deed is valid or not, depends entirely on the intention of the legislature, to be gathered from the language of the late statute (31 & 32 Vict. c. 101), and I am of opinion that the clause applicable to this question is not retrospective. There is one clause (s. 11), which is retrospective; but then there are express words making it retrospective,-" under the recited Act or this Act." But there are no words in the 3rd, 4th, 5th, and 7th sections, (1) Law Rep. 2 Ch. App. 93. (2) In Harding v. Inskip (Law Rep. 4 Ex. 80), the Court of Exchequer refused to interfere on the ground that the defendant had not been arrested; and Pigott, B., in the principal case, had also refused an order at chambers on this ground. 1869 ELLIS v. strong enough to lead to the conclusion that it was intended that the enactments should operate retrospectively. And it requires such words in order to construe a statute to be retrospective contrary McCORMICK. to the ordinary rule. Now s. 1 is clearly not retrospective, for it requires certain additional conditions to be observed on the part of the debtor, and it can only be intended to apply, although the words are general, to a deed made or entered into for the future. Then s. 3 applies to "such deeds," that is deeds already referred to, and as it is obvious it is for the future that the debt is to be verified by the affidavit of the assenting creditor, so it is for the future that the requisite value is to be computed after deducting the value of any securities held by creditors. Thus again, in s. 5, "any creditor of a debtor executing such deed," must mean executing for the future, for the legislature would surely have used other language had they intended to make the enactment apply to deeds already executed, as well as future deeds,-language such as is used in s. 11. Moreover, by s. 15, the statute is not to come into operation until the 11th of October, more than two months after it passed, and I cannot understand why, if the intention was that the Act should be retrospective, its operation should be deferred to a future time. I am therefore clearly of opinion that the Act was not intended to have a retrospective effect and to apply to deeds already made, but only to deeds in future. HANNEN, J. I am of the same opinion. It is a well settled rule of construction that new legislation is not to be interpreted to apply to the past, unless such an intention is clear from the language used. Mr. Harrison says such is the language of s. 3, while he concedes that much of the statute can only apply to the future, and he says the reason of the thing is in favour of his construction, as it will tend to support deeds that otherwise must fail. But it seems to me that the legislature could never have intended that a change so great, in the rights of the different parties as they existed under the old law, should be introduced by language at the least so vague. Nor is the argument just that the retrospective construction would only have the effect of making some deeds valid, for it would in many instances have just the contrary effect. For these reasons it seems clear to me that it has not been made out 1869 ELLIS v. McCORMICK. that it was the intention of the legislature to enact retrospectively. This deed is therefore invalid by reason of its not having the requisite assents. Rule discharged. (1) Attorneys for plaintiff: Neal & Philpot, for Clare, Liverpool. Feb. 15. THE QUEEN, ON THE PROSECUTION OF THE OVERSEERS OF ST. MARY, Poor-Rate-Rateability of Occupier of Wharf for Wharfage Dues received by others. The The owners of docks and wharves let the wharves to a railway company. company were the sole occupiers of the wharves, but by the agreement certain wharfage dues payable on all goods shipped or unshipped at the wharves were reserved to the landlords, and were paid direct to them by the owners or consignees of the goods :-- Held, that the railway company, as sole occupiers of the wharves, were liable to be assessed to the poor-rate in respect of the full rateable value of the premises, including the wharfage dues, without regard to the amount of benefit which they themselves derived from the occupation. APPEAL to the Glamorganshire Quarter Sessions, by the Rhymney Railway Company, against a poor-rate for the Parish of St. Mary, Cardiff, of the 27th of October, 1866, whereby the appellants were rated for their railway sidings, wharves, and tips, in the parish, on the gross estimated rental of 59607, and the rateable value of 43047. 1. The notice of appeal, stated amongst other things, that the trustees of the Marquis of Bute were assessed in the rate at lower sums than they ought to be charged with, and notice to that effect was given to the trustees. 2. At the hearing, the trustees, as well as the other respondents, the overseers of the parish, appeared, and the rate was confirmed subject to this case. 3. There is no dispute as to the sums of 32117. gross rental, and 15817. rateable value, forming part of the above-mentioned assessment, and such sums are admitted to be properly charged as the (1) See note (2), ante, p. 273. |