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under and by virtue of s. 92, § 15 of "The British North America Act, 1867." But whence did the Quebec Legislature draw authority to amend and alter the law of Procedure in Criminal matters as is attempted by 34 Vic. c. 2, ss. 148-199?

It is submitted that all the sections of that Act, having reference to Procedure, are null, void, and of no effect, having been passed in violation of the provisions of "The British North America Act, 1867."

INSOLVENCY.

WILLIAM H. KERR.

CAN A TRADER WITHOUT ASSETS MAKE AN
ASSIGNMENT?

An important question relative to the interpretation of the Insolvent Act of 1869, was decided at Halifax, N. S., on the 13th September, 1870, upon an application for discharge by Robert G. Noble et al. The discharge was refused on account of, among other reasons, the failure of the insolvents to deliver up any assets to their assignee. Per Sutherland, J. :

"I have been drawn to the conviction that where there is not any estate, nor any debts, effects, on property to assign, an Insolvent is not entitled to claim a discharge from the Court under an assignment made conveying nothing. The 3rd section of the Act of 1869 directs the proceedings at the meeting of the Insolvent's creditors and directs among other things that the Interim Assignee shall exhibit a statement showing the amount and nature of all the assets of the Insolvent, including an inventory of his estate and effects. This leads, surely, to the belief that the act designed that there should be estate and effects, or debts due to the Insolvent, to assign. It seems to me to be a mere sham to present a piece of paper to the assignee and call it an assignment, when it is unaccompanied with property upon which he can act." *

In the Province of Ontario, on the other hand, Judge Jones, in re W. Perry, not only held that the delivery of assets is unne

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*The Acadian Recorder of the 17th September, 1870, in which the learned judge's opinion is published in full, under his own signature.

cessary, but even that the Insolvent can obtain confirmation of a consent to his discharge, without having made an assignment, upon affidavit that he had nothing to assign. *

In our opinion, the former of these decisions is unfounded in law, and the latter carried too far.

Insolvency laws are laws of public order; consequently, when the legislature has not expressly established any prohibition or exception, the Courts have no right to supply it. Section 2 of the Insolvent Act of 1869 declares that " any debtor unable to meet his engagements, and desirous of making an assignment of his estate," shall do so to an official assignee, &c. The Act does not make it obligatory on the Insolvent to produce or deliver any assets.

The honorable Judge of the Insolvency Court at Halifax objects that, by section 3 of the Insolvent Act, the assignee, at the first meeting of creditors, must exhibit a statement showing the amount and nature of the Insolvent's estate, debts and effects. But that section does not say that the assignment shall be null and void if the Insolvent has no property of which a statement can be made. The Legislature evidently and quite naturally foresaw that the great majority of Insolvents would possess property, and simply desired to point out to the assignee the line of proceeding to be adopted by him in the generality of cases.

The learned Judge is unable to see how a debtor holding no property at the time of his assignment, can assign anything; and adds that an assignment made under those circumstances is a mere sham. But he forgets the terms of section 10: "The assignment shall be held to convey and vest in the interim assignee.. all his personal estate and moveable and immoveable property, debts, assets and effects, which he has or may become entitled to at any time before his discharge."

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Section 101 of the Insolvent Act, which cnumerates the grounds for opposing the confirmation of discharge, does not mention the want of assets.

Mr. Justice Jones' decision goes much too far. It is true that a deed of composition or of discharge may be agreed to at any time "before, during or after the proceedings taken upon an assignment or for the forced liquidation of the Insolvent's estate."

* L. C. Jur. 1866, p. 75: Law Journal, U. C. ( N. S. ) p. 75; Edgar, Insolvent Act of 1869.

But do not these last words indicate the necessity of an assignment or of compulsory liquidation ?

Section 98, corresponding to section 9, par. 3, of the Act of 1864, declares that "the consent in writing of the said proportion of creditors to the discharge of a debtor absolutely frees and discharges him, after an assignment or after his estate has been put in compulsory liquidation, from all liabilities whatsoever." With a provision of law so clear and express, it must be held that the learned Judge's decision is directly opposed to the letter of the

statute.

Section 105 of the Insolvent Act of 1869, as well as clause 9, par. 10 of the Act of 1864, is clear and positive with regard to the discharge granted by the Court. "If after the expiration of one year from the date of an assignment made under this Act, or from the date of the issue of a writ of attachment thereunder," the debtor cannot obtain his discharge from his creditors, he may petition the Court for a discharge.

And if it were otherwise, the creditors, who have the right to oppose all and every application for discharge, and whose number cannot be legally ascertained until a month have elapsed from the assignment, would be completely at the Insolvent's mercy. He could simply divest himself of his property under the common law so as to make the requisite affidavit, with which he would immediately present himself before the judge and obtain his discharge at once. Such a mode of procedure is too summary to be authorized by the Insolvent Act of 1869.

CAN A PERSON WHO CEASED TO BE A TRADER BEFORE THE PASSING OF THE INSOLVENT ACT OF 1869, TAKE BENEFIT OF THE ACT?

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J. E. Villeneuve was a trader of Laprairie, in 1857, when he became an insolvent. Failing to make a settlement with his creditors, he then ceased to be a trader and became and has ever since been an officer of the Custom House in Montreal. In 1870, being still debtor of his commercial liabilities, which for the most part were not yet prescribed, he made an assignment to Sauvageau, official assignee, under the Insolvent Act of 1869. In 1871, after the passing of the Amendment Act of that year, he applied for a discharge. Three creditors, holding claims created since he retired from trade, opposed his petition, upon the ground that under the Statute of 1871 the discharge could not be granted, exVOL. II. No. 1.

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cept subject to their claims. On the 29th December last, the Superior Court (Mackay J.) absolutely refused the discharge, the learned judge holding that the petitioner, not being a trader at the time of, nor since the passing of the Insolvent Act of 1869, could not in any way take benefit of the Act. A contrary decision was given on the 2nd June last, 1871, by the Supreme Court of Nova Scotia, in re Archibald & al., which only this day came under our notice. Under the circumstances, it will probably be perused with interest.

"Sir William Young, C. J., delivered judgment as follows: * "This is an appeal from an order of the Judge of Probate and Insolvency at Halifax, dated 1st March last, discharging the insolvents under secs. 105 and 106 of the Act of 1869. Their petition set out their assignment of 1st December, 1869, and that more than one year having elapsed from the date thereof, and the petitioners having failed in obtaining from the required proportion of their creditors a consent to their discharge, they applied to the judge to grant such discharge pursuant to the statute. The insolvents were thereupon subjected to personal examination before the judge respecting their dealings, books and liabilities, which extended over three days, and after careful examination, the counsel who appeared for the creditors and against the insolvents, expressed themselves satisfied with the explanations afforded by the insolvents, and acquitted them of fraud in their dealings. Some delay then took place with a view to the legal objection being raised which was urged on the appeal, but which had not been brought before the Judge of Probate, who granted the order of discharge as unopposed. The first hearing on the appeal was had before me at Chambers on the 31st March, when some preliminary objections were taken on the part of the insolvents, which were afterwards withdrawn, and the main question came up on an admission of the insolvents that at the time the Act passed in 1869 they had ceased to be traders. The case of Surtees v. Ellison, 9 B. & C. 750, decided in 1829, was then cited, and I looked into the point and was prepared to give judgment, but withheld it at the instance of the counsel, who were negotiating for a settlement. In the meanwhile the Dominion Parliament passed, on the 14th April, the amending Act of 1871, chapter 25, upon which the insolvents insisted at a

* 7 Canada Law Journal, N. S. 301.

second hearing on the 26th May, and I am now to consider the effect of both Acts.

"The policy of the imperial and colonial legislatures has varied much from time to time, as to the persons to whom the privileges and obligations of the bankrupt laws should extend. The 34 & 35 Hen. VIII c. 4, passed in 1542, was aimed at all persons who, in the quaint language of the preamble, "craftilly obtaining into their hands great substance of other men's goods, do suddenly flee to parts unknown, or keep their houses, not minding to pay or restore to any of their creditors their debts and duties, but, at their own wills and pleasures consume the substance obtained by credit of other men, for their own pleasure and delicate living, against all reason, equity, and good conscience,"—a description which might be applied to a good many bankrupts of the present day. The 13 Eliz. c. 7, and the 21 Jac. I. c. 19, comprehend all persons using or exercising the trade of merchandise and some other trades or professions. By the 6 Geo. IV. c. 16, all persons using certain trades, and doing certain acts, and all persons using the trade of merchandise, shall be deemed traders; and the present Bankrupt Law in England, the 32 & 33 Vic. c. 71, passed in 1869, extends to non-traders as well as traders, a full description of traders being given in the schedule, while a recent decision has extended it to peers of the realm.

"The Canadian Insolvent Act of 1864, the parent of the present one, applied in Lower Canada to traders only; and in Upper Canada to all persons, whether traders or non-traders. The Dominion Act of 1869 applies to traders only, and this the amending Act of 1871 has somewhat modified.

"Under the Act of 1869, I should have held, on the authority of Surtees v. Ellison, that a person who had ceased to be a tra der at the passing of the Act did not come within it. The trading in that case was before the passing of the 6 Geo. IV. c. 16, and the court were all of opinion that they must look at the statute as if it were the first that had ever been passed on the subject of bankruptcy, and that there was no sufficient trading to support the commission. Lord Tenterden, in stating this result, lamented that a statute of so much importance should have been framed with so little attention to the consequences of some of its

* Ex parte Morris. In re Duke of Newcastle, L. R. 5 Ch. 172. See 6 C. L. J,, N. S. 189.

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