ALDERSON, B.-It is a taxation by the Master of this Court, adopting the taxation of the bankruptcy Master. 1851. WEBB v. MARTIN, B., concurred. Rule discharged, with costs. HEWLETT. THIS In Re EVERARD. HIS was a rule calling on the assignees of G. Everard, a bankrupt, to shew cause why he should not be discharged out of the custody of the sheriff of Stafford as to an execution issued by them. The Commis It appeared from the affidavits, that on the 4th of July, 1850, the Commissioner awarded the bankrupt his certificate of conformity under the Bankrupt Law Consolidation Act, 1849, (12 & 13 Vict. c. 106), but he suspended its allowance for six months from the 20th of June, on account of certain acts of fraudulent preference. sioner on the same day granted a certificate, under the 257th section, in the form given in Schedule (B. a) of that statute. The bankrupt having kept out of the way, nothing was done by virtue of that certificate until the 11th of December, on which day the assignees issued a capias ad satisfaciendum, under which the bankrupt was taken in execution on the 10th of January following. Bovill shewed cause.-The question turns on the construction of the 257th and 259th sections of the 12 & 13 Vict. c. 106 (a). The object of those enactments is ex (a) Sect. 257 enacts, "That the assignees for the time being of the estates and effects of any bankrupt, when the accounts relating to his estate shall have become re- 1851. In re EVERARD. plained by the 256th section, which makes it compulsory upon the Commissioner to refuse or suspend the certificate of conformity, if the bankrupt has committed certain specified offences. By the 257th section, the assignees and creditors are to be deemed judgment creditors; and if the Court shall have refused or suspended the bankrupt's certi the debts which shall by such accounts appear to be due from him to his creditors; and every creditor of any bankrupt, immediately after the proof of his debt shall have been admitted, shall be deemed a judgment creditor of such bankrupt to the extent of such proof; and the court, when it shall have refused to grant the bankrupt any further protection, or shall have refused or suspended his certificate, shall, on the application of such assignees, or of any such creditor, grant a certificate under the seal of the court, in the form contained in schedule B. a. to this Act annexed, and every such certificate shall have the effect of a judgment entered up in one of her Majesty's superior courts of common law at Westminster, until the allowance of the certificate of conformity of such bankrupt; and the assignees or the creditor to whom, according to such certificate, the bankrupt shall be indebted as therein mentioned, shall be thereupon entitled to issue and enforce a writ of exe cution against the body of such bankrupt; and the production of any such certificate to the proper officer of any such superior court shall be sufficient authority to him to issue and seal such writ; and it shall be lawful for such superior courts to make such orders and rules in that behalf as to them shall seem fit: Provided always, that every such last-mentioned certificate shall be deemed to have been cancelled and discharged by the allowance of the certificate of conformity of such bankrupt from the time of such allowance; Provided also, that no execution by virtue of any certificate, which shall be granted to any creditor or assignee as aforesaid, shall be issued, nor shall any such certificate or execution in any manner affect any estate or effects which shall come to or be acquired by the bankrupt after the allowance of his certificate of conformity." Sect. 259 enacts, "That if any bankrupt shall be taken in execution after the refusal of protection, or after the refusal or suspension of his certificate, he shall not be discharged from such execution until he shall have been in prison for the full period of one year, except by order of the court: Provided always, that this enactment shall not take effect until after the expiration of six months from the commencement of this Act; and then only against such persons as shall have been adjudged bankrupt under this Act, and for offences committed after the commencement of this Act." ficate, they are empowered "to issue and enforce a writ of execution against the body of the bankrupt." That is not for the purpose of obtaining satisfaction of their debts, but by way of punishment for the bankrupt's offences. The section then provides, that the certificate, under which execution is to issue, shall be deemed to be cancelled and discharged, by the allowance of the certificate of conformity, from the time of such allowance: thus implying, that if execution has issued before that time, it is to remain in force. That is followed by a proviso, that no execution shall be issued after the allowance of the certificate of conformity; it does not say that it shall not be enforced. That provision would be wholly useless, if the immediate effect of the certificate of conformity was to destroy the other certificate. It assumes that an execution issued before the allowance of the certificate might be enforced afterwards. Then, by the 259th section, a bankrupt taken in execution after the refusal or suspension of his certificate, is not to be discharged until he shall have been in prison for one year, except by order of the Court. So that in the one section there is a positive enactment, but mere implication in the other. If the bankrupt had been taken in execution within the period of six months, he must have remained in prison for a year, unless discharged by the Court of Bankruptcy. It is the same in the present case, for the sections in question relate only to issuing execution after the allowance of the certificate, not to enforcing it. Gray in support of the rule.-The bankrupt is entitled to be discharged. After the certificate of conformity comes intooperation, the certificate for execution ceases to have any effect. No doubt the object of these enactments was punishment in a certain sense, but that is not altogether by imprisonment, but by the liability to imprisonment. The intention of the legislature was to assimilate the bank VOL. VI. I EXCH, 1851. In re EVERARD. 1851. In re EVERARD. rupt law to that of insolvency. Under the 1 & 2 Vict. c. 110, s. 85, when the Court adjudges that an insolvent be discharged at the expiration of a certain period, he may, if in custody, be detained until that time, or if at large, he is liable to be arrested; but should he keep out of the way until the time has expired, he cannot afterwards be imprisoned. The effect of the sections in question is the same. If the certificate of conformity and protection be altogether refused, the bankrupt is liable to be taken in execution, and must remain in prison for twelve months, unless sooner discharged by the Court. The same consequence would ensue, if the certificate were suspended for two years, and the bankrupt were taken in execution before the expiration of the first year. But if the certificate is suspended for a limited period, the bankrupt is entitled to be discharged when that period expires. If such be not the true construction of the statute, a bankrupt might be taken in execution just before the end of the period of suspension, and detained in prison for a year; or he might be taken into custody ten years after his certificate of conformity was in operation, under an execution issued while it was suspended. [He was then stopped by the Court.] POLLOCK, C. B.-The bankrupt is entitled to be discharged. When the allowance of the certificate of conformity is complete, the previous state of things is at an end. The 259th section, which says, that any bankrupt taken in execution after the refusal or suspension of his certificate, shall not be discharged until he shall have been in prison for one year, does not apply to cases where the whole period of suspension has elapsed; for the latter part of the 257th section expressly provides, that "no execution, by virtue of any certificate which shall be granted to any creditor or assignees, shall be issued, nor shall any such certificate or execution in any manner affect any estate or effects which shall come to or be acquired by the bankrupt, after the allowance of his certificate of conformity." No doubt there is some obscurity in the statute, but it means "that no execution shall issue, or, if issued, be enforced." It would be absurd to say, that a writ shall not issue, but if it does, it may be executed. A party who seeks to keep another in prison must have a clear right to do so; and if the meaning of the statute be doubtful, we must lean to the construction in favorem libertatis. PARKE, B.-I am satisfied by Mr. Gray's argument that his construction of the statute is correct. The provisions in question are part of the same system as that adopted under the 1 & 2 Vict. c. 110, s. 85, by which the discharge from prison of a fraudulent debtor may be suspended, and himself punished by being rendered liable to arrest. Reading the two sections together, their meaning is clear, although their language is somewhat obscure. If we put a literal construction on them, a manifest absurdity will follow. Let us then see if we can collect from the whole the intention of the legislature. First, it is perfectly clear, that as soon as the Commissioner has granted a certificate under the 257th section, the assignees and creditors, who are judgment creditors, have, by virtue of that certificate, power to issue execution against the body of the bankrupt;-whether against his goods we need not now decide. Then comes a proviso, "that every such certificate shall be deemed to have been cancelled and discharged by the allowance of the certificate of conformity from the time of such allowance." In this case, the allowance was made constructively on the 4th of January, 1851, and the obvious intention of the legislature was to paralyse the judgment after the allowance of the certificate of conformity; so that the 257th section must be construed as if it had said, that a writ of execution issued before that time shall no longer have any force. It is like the case of a judgment reversed by writ of error, or defeated 1851. In re EVERARD. |