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CASES ARGUED AND DETERMINED

IN THE

Court of Dueen's Bench

AND IN THE

Erchequer Chamber and House of Lords

ON ERROR AND APPEAL IN CASES IN THE COURT OF QUEEN'S BENCH.

MICHAELMAS TERM, 36 VICTORIÆ.

RIMINI V. B. VAN PRAAGH.

dd

1872.

merchant, and he and J. Van Praagh were Nov. 8.

indebted to the plaintiff and other persons, Bankruptcy Repeal Act, 1869 (32 8 33

and thereupon a deed was made between

the plaintiff and J. Van Praagh and their Vict. c. 83), 8. 20Bill given for Debt discharged by BankruptcyBankruptcy Act,

creditors in the words and figures follow1861 (24 8. 25 Vict. c. 134), s. 164.

ing. [The plea then set out the deed, dated

July 13th, 1869, by which B. and J. Van No action can be maintained on a bill Praagh assigned all their property to a accepted in consideration only of a debt trustee, to be administered for the benefit discharged by a bankruptcy or arrange of their creditors as in bankruptcy, and ment under the Bankruptcy Act, 1861, the creditors, in consideration of the deed, although such bill was given after the repeal released the debtors in like manner as if of this Act by the Bankruptcy Repeal Act, they had obtained a discharge in bank1869 (32 8. 33 Vict. c. 83).

ruptcy.] The plea then averred per

formance of all conditions precedent; and Declaration by plaintiff, as the indorsee that after the deed had become bindof a bill for 451. at twenty days, dated Janu- ing on the plaintiff, the bills in the declaary 2nd, 1870, and accepted by defendant; ration mentioned were drawn, accepted, and as indorsee of another bill for 301. at and indorsed to the plaintiff as in the two months, dated January 20th, 1870, declaration mentioned, and save as aforeand accepted by defendant.

said there never was any consideration counts for interest and money due on ac for the drawing, indorsing, acceptance, or counts stated.

payment of the bills or either of them by Third plea to the first and second counts, the defendant, and the plaintiff first reand as to so much of the third count as ceived and always held the bills without referred to money payable upon an ac value, and with notice of the premises. count stated, that before the drawing or Demurrer and joinder in demurrer. acceptance of the bills, or either of them, Littler, in support of the demurrer.the defendant carried on business in part The plea is bad. There can be no doubt nership with J. Van Praagh as a diamond that had the bills in question been acNEW SERIES, 12.– Q.B.

B

Common

cepted before the Bankruptcy Act, 1869 that an agreement by a bankrupt after his (1), no action could be maintained

upon certificate to pay an antecedent debt, is them by reason of the express provisions one upon which an action may be brought, of the Bankruptcy Act, 1861, s. 161. is cited, and commented upon. But at the time when the bills were ac [QUAIN, J.-Had not the bankrupt at cepted, the old law had been repealed, the time of the repeal of the old Act a and as the repealing Act contains no vested right which could not be defeated provision against such an action as the by any subsequent enactment?] ] present one from being maintained, by In Flight v. Reed (5) it was held by the the common law, in the absence of

express Court of Exchequer, Martin, B., dissentenactment, a debt discharged by bank. ing, that where bills had been given to ruptcy is a sufficient consideration for a secure previous bills, which last when subsequent agreement. In Wennall v. given were in respect of a loan at an Adney (2), there is an elaborate note on interest contrary to the existing usury the effect of an express promise founded laws, that the second bills upon repeal of simply on a moral obligation, in which these laws could be enforced; and this the opinion of Lord Mansfield in Hawkes case has a close analogy to the present one. v. Sanders (3) and Trueman v. Fenton (4), Lucius Kelly, in support of the plea.

There is nothing in the Bankruptcy Re(1) By the Bankruptcy Act, 1861 (24 & 25

peal Act, 1869, which creates a right to Vict. c. 134), s. 164, after the order of discharge sue on these bills. In Jones v. Phelps (6), takes effect the bankrupt shall not be liable to pay in a case where the respondent became or satisfy any debt, claim, or demand proveable bankrupt in 1868, and after adjudication under the bankruptcy, or any part thereof, on any

gave the appellant, a creditor, bills in

respect of this debt, and again, after contract, promise, or agreement, verbal or written,

the passing of the Bankruptcy Act, 1869, made after adjudication, and if he be sued on any

gave fresh bills in renewal of those such contract, promise, or agreement, he may

originally given, Bacon, V.C., held plead in general that the course of action ac that a debtor summons in respect of crued pending proceedings in bankruptcy, and may these new bills was properly dismissed. give this Act and the special matter in evidence.

His Honour was inclined to think that With regard to trust deeds for benefit of credi for the purposes of the case s. 164 of the

Act of 1861 was not repealed, but be pretors, it is thus enacted, by section 197—“ From and

ferred to base his decision on the broader after the registration of every such deed or instru

ground, that when a debtor was discharged ment, the debtor and creditors and trustees parties from a debt by bankruptcy, a promise by to such deed, or who have assented thereto, or are him to pay it was a mere nudum pactum. bound thereby, shall in all matters relating to the With regard to Flight v. Reed (5), the estate and effects of such debtor be subject to the

Court will remember that an usurious jurisdiction of the Court of Bankruptcy, and shall

transaction was so far valid, that if the respectively have the benefit of, and be liable to schedule includes the Bankruptcy Act, 1861), are all the provisions of this Act, in the same or like hereby repealed, “but this repeal shall not affect manner as if the debtor had been adjudgod a the past operation of any such enactment, or revivo bankrupt, and the creditors had proved and the any Court, office, jurisdiction, authority, or thing trustees had been appointed creditors' assignees abolished by any such enactments, or affect the under such bankruptcy.”

validity or invalidity of anything done or suffered By the Bankruptcy Repeal and Insolvent Court before the commencement of this Act, or any right, Act, 1869 (32 & 33 Vict. c. 83), s. 20, The enact title, obligation, or liability accrued, or restriction ments described in the schedule to this Act (the imposed before the commencement of this Act."

(2) 3 Bos. & P. 217.
(3) Cowp. 289.
(4) Ibid. 548.

(5) Hurl. & C. 703 ; s. c. 32 Law J. Rep. (N.s.) Exch. 265.

(6) 20 Weekly Rep. 92.

creditor chose to destroy his securities, MELLOR, J.-I am of the same opinion. he might recover the amount actually The effect of section 164 of the Act of advanced, while here there was no con 1861 is, that after the order of discharge sideration whatever for the bills, as the takes effect the bankrupt is not to be plaintiff's claim was discharged by the liable to satisfy any demand provable deed of arrangement.

under the bankruptcy, on any contract Littler, in reply.

or promise made after adjudication, and

if sued on any such contract, may plead COCKBURN, C.J.-I think that the plea that the cause of action accrued pending is good. The action is on bills of ex proceedings in bankruptcy. It seems, change accepted by the debtor in respect therefore, that the question is, whether of a debt which became due while the a bill of exchange given in respect of Bankruptcy Act, 1861, was in force, and such a debt before the Act of 1869, comes it appears that he entered into a deed of

within the meaning of the words in secarrangement, the effect of which was to

tion 20, “shall not affect the past operation discharge him from his debts in the same of

any such enactment, or affect the vali. manner as if he had obtained a discharge dity or invalidity of anything done or in bankruptcy: Now by section 164 of suffered before the commencement of the the Act of 1861 the bankrupt is not liable Act.” It seems to me that the transaction after an order of discharge in bankruptcy is clearly within the words of the saving to pay any debt or demand provable clause. under the bankruptcy on any contract HANNEN, J., concurred. made after adjudication. Subsequently QUAIN, J.--I am of the same opinion. the Act of 1861 is repealed, and after When the Act of 1869 was passed, the this repeal the bills were given. It has law which it repealed prohibited tho been contended before us that in the case revival of a debt discharged by a bankof a bankruptcy after the repeal bills of ruptcy. Having regard to the case of exchange like those in question might Surtees v. Ellison (7), where it was held be given and sued upon. Upon this point that a bankruptcy founded upon a trading I pronounce no opinion whatever; it will which had only continued previously to be time enough to decide it when it comes the existing Bankrupt Act, 9 Geo. 4. c. 16, before us.

It is quite clear that when could not be supported, as the trading the Bankruptcy Repeal Act, 1869, was could not be regarded as if it had conpassed the law imposed a restriction upon tinued after the passing of the new Act, the right to sue upon these bills; and it I should have been disposed to hold, apart seems to me impossible to suppose that from the express words of the saving the Legislature intended anything so clause, that the present Act could not monstrous and anomalous as to remove make the position of the parties to the this restriction in respect of past transac transaction different from that in which tions, though they may have intended to they stood before the old Act was realter the law with respect to future bank pealed. But I agree with my Lord and ruptcies. And when I look at section 20 the rest of the Court that the saving of the Act of 1869, I find that the repeal clause expressly prevents this action from is not to affect the past operation of pre- being maintained. vious enactments, or any right, title,

Judgment for the defendant. obligation or liability accrued, or restriction imposed, before the commencement of the Act. I think these words are Attorneys--G. S. & H. Brandon, for plaintiff; quite large enough to apply to the present E. D. Lewis, for defondant. case.

Under the old law, the plaintiff could not have sued the debtor in respect of these bills, and I cannot suppose that the Legislature intended to take away this restriction, but have every reason to think that they meant to preserve it.

(7) 9 B. & C. 750.

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1872. MACAULEY V. TIIE FURNESS RAIL the cattle, and whilst the plaintiff was acNov. 15. WAY COMPANY.

companying the cattle during the transit, Negligence Agreement by Railway, action in the first count mentioned.

the defendants committed the causes of Passenger to travel at his own Risk.

Replication to the defendants' third plea Declaration, that plaintiff was received by that it was by, and by reason of gross and the defendants, a railway company, as a wilful negligence and mismanagement of passenger to be safely carried on their rail

the defendants, in and in relation to the way on a journey from Piel Pier to Car

matters in the first count mentioned, that lisle, and that the defendants so negligently the alleged grievances therein mentioned managed the railway and the traljic upon were committed by the defendants. it, that a collision took place, by which the Demurrer and joinder in demurrer. plaintiff was injured. Plea, that the plaintiff was received as a passenger under an Crompton, in support of the demurrer.agreement that he should travel at his own The question turns entirely upon the risk. Replication, that it was by reason of construction of the notice or agreement gross and wilful negligence and mismanage stated in the plea, and this notice is so ment of the defendants that the collision worded as to exempt the company from took place :-Held, that the replication was responsibility, even though their servants bad, for the agreement stated in the plea may have been guilty of gross negligence. must be taken to include the negligence The plaintiff is carried gratuitously, and mentioned in the replication.

chooses to enter into a contract which

takes away his right to maintain this Declaration. First count_That the action. The question has been pracplaintiff became and was received by tically decided in several cases. In Carr the defendants as a passenger to be safely v. The Lancashire and Yorkshire Railway and securely carried upon a railway of Company (1), the railway company at the the defendants on a journey from Piel time they received a horse from the Pier to Carlisle for reward to the defend. plaintiff gave him a ticket which stated ants. Yet the defendants did not safely that they would not be responsible for and securely carry the plaintiff upon the any injury or damage, however caused, said railway on the said journey, and so neg occurring to live stock travelling upon ligently and unskilfully conducted them. their railway. It was proved that the selves in relation thereto, and in managing plaintiff's horse while in the custody of the railway and the traffic thereon, that a the defendants was injured through gross locomotive engine and tender there being negligence on their part. It was held on the railway, ran into and came into that upon the true construction of the collision with the train of carriages in one notice the defendants were not respon. of which the plaintiff was such passenger, sible for the loss, although occasioned by and the plaintiff was thereby greatly their negligence. . Austin v. The Man. shaken, bruised and otherwise injured, &c. chester, Sheffield and Lincolnshire Rail

Third plea to the first count—That the way (2), is to the same effect, the Court defendants received the plaintiff to be there, as in the former case, laying stress carried under a free pass from Piel Pier on the words damage however caused, to Carlisle as a drover, accompanying which was in the notice, and holding that cattle, which the defendants had con proof of gross negligence did not take tracted to carry from Piel Pier to Carlisle the case out of the exemption. In Hinton under an agreement, whereby it was pro v. Dibbin (3), where a parcel was handed vided that any drover accompanying the to a carrier without a declaration of the cattle during the transit from Piel Pier aforesaid to Carlisle should travel at his (1) 7 Exch. Rep. 707 ; s. c. 21 Law J. Rep. own risk, and the plaintiff did not be

(n.s.) Exch. 261.

(2) 10 Com. B. Rep. 454; s. c. 21 Law J. Rep. come nor was received by the defendants

(N.s.) C.P. 179. to be by them carried on any other terms, (3) 2 Q.B. Rep. 646 ; s. c. 11 Law J Rep. and whilst the defendants were carrying (n.s.) Q.B. 113.

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