granted under the old law, which required the signature of a different proportion in number and value of the creditors. But if that were so, what, it was replied, would become of the bankrupt's future effects in such a case, the former statutes, which made them liable to the claims of the creditors, being repealed, and the new act having no application? The Court, however, being of opinion that, in either view of the case, the bankrupt was discharged by the certificate, since otherwise the plaintiff (assuming the new law to apply to the case) would in effect be enabled to have execution against the goods of the assignees, pronounced no positive judgment on the other point, although inclining strongly to the opinion that the clause had a retrospective operation upon the first

commission.

The next case was that of Carew v. Edwards (4 B. & Adol. 351). There, the bankrupt, having previously been discharged under the Insolvent Act, obtained his certificate under a commission of bankruptcy before the passing of the 6 Geo. IV., paying less than fifteen shillings in the pound. Here the Court held without difficulty that the statute had no rétrospective application. The effect, indeed, of a contrary construction would have been to render every such certificate granted under the 5 Geo. II. c. 30, that is, since the year 1732, a bar to subsequent actions by the creditors, and to disturb most extensively the long-established rights both of the creditors and of the bankrupt. The Court especially adverted to the provision made by the 135th section of the act, that "nothing therein contained should lessen or affect any right, demand, or remedy, which any person then had under any subsisting commission or proceedings, or upon or against whom any commission had been issued, except as was therein specifically enacted.”

The recent case of Elston v. Braddick, decided by the Court of Exchequer in Hilary term last (not yet reported), has at length settled the construction of the 127th section in conformity with the opinion intimated by the King's Bench in Robertson v. Score. The bankrupt, having been discharged under the Insolvent Act previously to the passing of the 6 Geo. 4. c. 16, had, subsequently to its passing, obtained his certificate under a commission, paying less than

fifteen shillings in the pound. His assignees, insisting that his future effects vested absolutely in them by section 127, sought to recover a sum of money paid by him to the account of a creditor with whom he dealt subsequently to his bankruptcy and certificate. The defendant's counsel con

tended that the grammatical construction of the clause (so far as it could be made out through such perverse intricacy of expression) would be satisfied by referring the words "shall have been discharged," &c. to previous certificates or insolvencies subsequent to the passing of the 6 Geo. 4; that the certificate mentioned in s. 127 must be intended to mean the same certificate as was provided for by s. 121, which clearly described a certificate that was to derive all its operation from that act; that the statute was intended to have operation only upon the property of the bankrupt, but here the bankrupt was not the only party interested; his property being liable, under the Insolvent Act by which he was discharged, to the claims of one set of creditors, from whom the statute, if construed retrospectively, would take it to give it to a different set of creditors; an operation not to be attributed to it without a clear and express declaration that such was the purpose of the legislature. We cannot help thinking that some of these arguments possessed a weight which entitled them to a graver and more extended consideration than they appear to have received from the Court; who, after a very short interval of deliberation, conceded rather to the importance of the question than ́to any doubt they entertained upon it, pronounced a unanimous judgment that the statute had a retrospective application in the case before them; a judgment of course applying equally to all the cases for which the clause makes provision. It is unquestionably of far less importance how a question of this kind is settled, than that it should be settled one way or the other; and although, therefore, we should ourselves have been disposed to consider the point as involved in a much greater degree of doubt than the learned judges who determined it,1 the decision, of which we have no reason to expect any reversal, will put an end at all events

1 We have reason to know that in a recent and extensive bankruptcy a case was submitted to no fewer than five counsel of eminence upon this point, three of whom expressed opinions one way and two the other.

to a considerable amount of litigation; nor does it appear probable that many provisions of the statute remain which are likely to furnish further difficulties of this nature.

It may be convenient to subjoin in this place, by way of postscript to our observations in a former volume,' the substance of one or two cases which have been more recently decided on the construction of the 108th section of the Bankrupt Act, modified as it has been by the operation of the statute 1 Wm. 4, c. 7, s. 7. Our readers will remember that by the judicial interpretation of the former clause, its effect was to deprive creditors of the bankrupt holding securities unexecuted at the period of the bankruptcy, of any priority of claim by reason of such securities; but to render them available to their full extent in case the creditor had levied on the goods of the bankrupt before the bankruptcy, except in the case of an execution following upon a judgment by default, confession, or nil dicit, which the creditor was bound, in order to entitle himself to its full benefit, to perfect by sale as well as seizure before the bankruptcy. The 1 Wm. 4, after reciting the proviso contained in the last clause of sect. 108, and stating that by reason of that provision "plaintiffs have been and may be deterred from accepting a cognovit actionem with stay of execution, whereby the expense of further proceedings in such actions might have been and may be saved or diminished," proceeds to enact, "that no judgment signed, or execution issued, after the passing of that act, on a cognovit actionem signed after declaration filed or delivered, or judgment by default, confession, or nil dicit, according to the practice of the Court, in any action commenced adversely, and not by collusion for the purpose of fraudulent preference, shall be deemed or taken to be within the said provision of the said recited act." The effect of this enactment manifestly is to restrain very materially the disabling proviso of the former section, and to exempt cognovits almost universally from its operation. One case only (Crosfield v. Stanley,

1 Vol. ii. p. 399.

4 B. & Adol. 87,) has been determined on the construction of this latter enactment, which indeed is worded so much less obscurely than the former that it may tend considerably to contract the litigation of which this subject has been so prolific. It was there decided that a judgment upon a warrant of attorney, (given bonâ fide) there being no adverse action, was not within the exceptions introduced by the 1 Wm. 4, and that it was within the operation of 6 Geo. 4, c. 16, s. 108, out of which it could not be taken without engrafting upon the words there used-" any judgment obtained by default, confession, or nil dicit"-the terms of the later act," by collusion, or for the purposes of fraudulent preference."

The more recent case of Godson v. Sanctuary, (4 B. & Adol. 255,) arose on the much litigated sect. 108 alone. The goods of the bankrupt were seized just two months before the issuing of the commission, under a fieri facias sued out on a warrant of attorney, and were sold ten days afterwards. The question was, whether the execution was protected by s. 81 of the Bankrupt Act, or was taken out of that protection by s. 108. The Court held that the general and explicit terms of s. 81, protecting all executions bonâ fide executed or levied more than two months before the issuing of the commission, were not narrowed by the vague though large words of the 108th section, so as not to include executions on judgments by default levied more than two months before the bankruptcy. If the latter section, it was said, were not limited in its operation by the 81st, there would be no period of limitation whatever, but an execution issued upon a judgment founded on a warrant of attorney would be liable to be disturbed at the distance of many months, or even years, by the occurrence of an act of bankruptcy.

The case of Cuming v. Welsford, which we mentioned in the outset, decided also that an execution on a final judgment in assumpsit, following a judgment by nil dicit, and obtained without concert between the parties, was within the disabling proviso of s. 108. The words of themselves (said the Chief Justice Tindal,) comprised every species of judgment obtained against a defendant, except judgment after verdict, trial by the record, and on demurrer. It was not less

a judgment by default because a writ of inquiry was interposed between the interlocutory and final judgment, such writ being no more than an inquest of office to inform the conscience of the Court, who might proceed immediately to ascertain the damages if they so thought fit. Admitting, he added, that the primary object of the legislature was to provide against the inconvenience felt by the creditors of bankrupts from judgments suddenly entered up, and execution levied, on secret warrants of attorney, and that the clause in question was introduced principally with that object, yet from the very general words employed, it appeared the better inference that more was intended to be included.

The effect, then, of these several decisions taken together, is that the proviso of s. 108 applies to all executions on judgments by default (except those specified in the 1st Wm. 4.) levied within two months before the bankruptcy, unless perfected before the bankruptcy by a sale. Little difficulty can well arise for the future on the interpretation of this blundering and unlucky enactment, which, as was truly said by one of the learned judges in Godson v. Sanctuary, has given occasion, within a few years, to more litigation than any section in any act of parliament ever did.

W.

ART. V.-WHEN THE LEGAL ESTATE IN MORTGAGED PREMISES PASSES BY A GENERAL DEVISE IN THE WILL OF THE MORTGAGEE.

It was decided by Lord Eldon in Braybrooke v. Inskip,' that a trust or mortgaged estate does pass under a general devise, unless it appear that it was the intention of the testator that it should not pass. Lord Eldon, in every part of his judgment, strongly and expressly puts it upon what was the intention of the testator. To ascertain what was the intention we must first look to the words of the will. If the estates devised are involved in intricate limitations, as limitations in strict settlement, or subjected to contingent remainders, executory devises, powers of raising sums of money, or the like; it is