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Vol. I.]

IN RE GRIFFITHS.

[No. 11.

“ In cases

It was settled by several decisions in Massachusetts that such amendments of the law did affect all cases. Ex parte Lane, 3 Met. 213; Eastman v. establish a uniform system of bankruptcy thirty-three of said act of March 2, 1867, rethroughout the United States, approved March quiring fifty per centum of such assets, is hereby 2, 1867,' and the acts amendatory thereof and repealed." supplemental thereto, and have conformed to The provisions of the act of 1868 were in all the requirements of the said act and the amendment of the thirty-third section of the acts amendatory thereto."

act of 1867. The first section of the act of July 27, 1868 What is the effect of the ninth section of the (15 U. S. Stats. at Large, 227), amends the act of 1874 ? Was it intended to apply to second clause of the thirty-third section of the cases commenced before the date of its passaid act of 1867, so as to read as follows : “In sage? It does not repeal anything except the all proceedings in bankruptcy, commenced provision "requiring fifty per centum of such after the first day of January, eighteen hun- assets," and the twenty-first section of the act dred and sixty-nine, no discharge shall be of 1874 repeals only such acts and parts of acts granted to a debtor whose assets shall not be as are inconsistent with the provisions of the equal to fifty per centum of the claims proved act of 1874; that, in the present case, it should against his estate, upon which he shall be lia- be necessary to comply with the requirements ble as the principal debtor, unless the assent of the act of 1868. Does the repeal of the in writing of a majority in number and value provision requiring fifty per centum of such of his creditors to whom he shall become liable assets," make the act of 1868 inapplicable to as a principal debtor, and who shall have the present case ? proved their claims, be filed in the case at or The ninth section of the act of 1874 must before the time of the hearing of the applica- be construed in connection with the other protion for discharge." By the first section of the visions of the same act. The language of the act of July 14, 1870 (16 Ib. 276), it was de- ninth section is general. It says : clared that the provisions of the second clause of compulsory or involuntary bankruptcy," of the thirty-third section of said act of 1867, and “in cases of voluntary bankruptcy.”* This as amended by the first section of the said act language is satisfied by applying it to cases to of 1868, shall not apply to those debts from be commenced after the passage of the act of which á bankrupt seeks a discharge, which 1874. That is the natural meaning of such were contracted prior to the 1st of January, language. It is not to be construed as apply1869.

ing to cases commenced before and pending at The requirements of the act of 1868 apply the time of the passage of the act of 1874, unto "all proceedings in bankruptcy”, com- less the intention to have it so apply is apparmenced after the 1st of January, 1869, whether ent from the act. The intention to have other the petition be one filed by, or one filed against provisions of the act of 1874 apply to cases the debtor. Under those requirements, the commenced before its passage is manifested right to discharges in this case is not shown. and declared by that act, and if such intention But the certificate of the register implies that is not declared in regard to the provisions of it is supposed that, because this is a case of section nine, and if those provisions can have compulsory or involuntary bankruptcy, dis- proper scope without applying them to cases charges may and must, under the act of June commenced before the passage of the act of 22, 1874, be granted, without a compliance 1874, and especially if to apply those proviwith the requirements of the act of 1868. sions to such cases would be inconsistent with

The ninth section of the act of 1874 pro- the intent manifested by all the provisions of vides as follows: “In cases of compulsory or the act of 1874, considered together, then the involuntary bankruptcy, the provisions of said inference is proper, that it was not intended act (the original bankruptcy act of March 2, that those provisions should apply to cases 1869), and any amendment thereof, or of any commenced before the passage of the act of supplement thereto, requiring the payment of 1874. The twelfth section of the act of 1874, any proportion of the debts of the bankrupt, in amendment of the thirty-ninth section of the or the assent of any portion of his creditors, as act of 1867, in regard to cases of compulsory a condition of his discharge from his debts, or involuntary bankruptcy, declares that the shall not apply; but he may, if otherwise en provisions of such twelfth section shall apply titled thereto, be discharged by the court in to cases commenced after the 1st of December, the same manner and with the same effect as 1873, and prior to the passage of the act of if he had paid such per centum of his debts, or 1874, as well as those commenced after its pasas if the required proportion of his creditors sage. So, too, the seventeenth section of the had assented thereto. And in cases of volun- act of 1874, which prescribes proceedings for a tary bankruptcy, no discharge shall be granted composition with creditors, prescribes them for to a debtor whose assets shall not be equal to all cases of bankruptcy now pending or to be thirty per centum of the claims proved against hereafter pending.' his estate, on which he shall be liable as prin- Under the act of 1874, in cases of compalcipal debtor, without the assent of at least sory or involuntary bankruptcy, commenced one fourth of his creditors in number, and one after its passage, one fourth in number and one third in value, and the provision in section third in value of the creditors of a debtor must

Vol. I.]

IN RE GRIFFITHS.

[No. 11.

Hillard, 7 Met. 420; Re Bartlett, 8 Met. 72; Eddy v. Ames, 9 Met. 585. But as the law has been pronounced to be otherwise in relation to this statute in an able opinion of Judge Blatchford's, I feel bound to give briefly my reasons for agreeing with the earlier decisions.

Section nine says, in substance, that in cases of compulsory bankruptcy the provisions of the former laws requiring the payment of a certain proportion of debts, or the assent of a certain number of creditors, as a condition of a bankrupt's discharge, shall not apply; but if otherwise entitled,

join in a petition against him or he cannot be the ninth section of the latter act, because such adjudged a bankrupt. The idea of the act, last named provisions have reference only to then, seems to be, that if such number and cases to be commenced after the passage of the value of creditors bring the debtor into court, act of 1874. in cases commenced after its passage, he shall One consequence of holding that by virtue not be required, in order to obtain a discharge, of the ninth section of the act of 1874, disto obtain any further assent of any creditor to charges can be granted in this case without a his discharge, or to pay any specified propor- compliance with the provisions of the act of tion of his debts, for it provides, 'in section 1868, would be that, in some cases of involunnine, for dispensing, in such case, with the tary bankruptcy commenced before the paspayment of any per centum of debts, and with sage of the act of 1874, bankrupts would have the assent of any proportion of creditors. The obtained discharges only on a compliance with bringing of the petition is regarded, in respect the act of 1868; in other such cases bankrupts to cases commenced after the passage of the would have endeavored to comply with the act act of 1874, as the assent of the one fourth in of 1868, but failed to obtain the assent of their number and the one third in value of the cred- creditors; and in other such cases bankrupts itors to the discharge. But a voluntary peti- would have made an effort to obtain discharges tioner comes into court of his own volition because satisfied they could not obtain such and without the previous agreement of any of assent; and yet now all bankrupts put into his creditors. As to such a case, commenced involuntary bankruptcy in proceedings comafter the passage of the act of 1874, the ninth menced before the passage of the act of 1874, section of that act declares that the debtor would obtain discharges without procuring any shall not have a discharge unless his assets be assent of any creditor. This would work å equal to thirty per centum of the claims proved practical discrimination among involuntary against his estate, upon which he shall be lia- bankrupts in cases commenced before the pasble as principal debtor, or unless one fourth of sage of the act of 1874, resulting in injnstice his creditors in number and one third in value to some, or in injustice to the creditors of some; assent to his discharge. In regard to volun- injustice to bankrupts who had complied with tary cases, the assent of creditors seems to be the act of 1868, or injustice to the creditors required, with a view of placing the bankrupt of those who had failed to obtain the assent on the same footing, as to the action of cred- required by the act of 1868. A construction itors, with the bankrupt in involuntary cases, which would so operate is not to be given, unthe thirty per centum of assets being regarded less imperatively indicated. as the equivalent of the assent. The ninth In considering the question, the fact has not section of the act of 1874 does not contain lan- been overlooked that under the act of 1874 guage simply repealing, as a whole, the provi- the requirement that one fourth in number and sion found in the act of 1868. It preseribes one third in value of the creditors shall join in what per centum of assets there must be in order to put a debtor into compulsory bankcases of voluntary bankruptcy, namely, thirty ruptcy, applies to all cases commenced after per centum, and then repeals the provision the 1st of December, 1873; but such fact is of * requiring fifty per centum of such assets." no moment. The debtor so put into bankProvision being made by it for cases of com- ruptcy in a case commenced between the 1st pulsory or involuntary bankruptcy, and also of December, 1873, and the 22d of June, 1874, for cases of voluntary bankruptcy, without any must, indeed, although put into bankruptcy declaration that cases pending at the time of by one fourth in number and one third in value the passage of the act are referred to, the re- of his creditors, still comply with the provipeal of the fifty per centum provision may prop: sions of the act of 1868, before he can obtain a erly be regarded as a repeal of it only in pari discharge. But this is only through a failure materia with the scope of the rest of the sec- in the act of 1874 to relieve him from the op tion, with which it is joined by a copulative, eration of the act of 1868, and imposes upon and as repealing it only in reference to cases him no burden to which he was not subject to be commenced after the passage of the act. when the act of 1874 was passed. In this view, there is nothing in the provision Entertaining these views, I must withhold of the act of 1868, as applicable to cases pend- discharges in this case until the provisions of ing at the time of the passage of the act of the act of 1868 are complied with. 1874, that is inconsistent with the provisions of

Vol. 1.]

IN RE GRIFFITHS.

(No. 11.

he is to have the discharge without such payment or assent. And in cases of voluntary bankruptcy no discharge will be granted to a debtor whose assets shall not be equal to thirty per centum of the debts proved against his estate, upon which he shall be liable as principal debtor, without the assent of at least one fourth of his creditors in number and one third in value; and the provision in section 33 of the principal act requiring fifty per centum of such assets is hereby repealed.

It is plain, I think, that the section, on the face of it, applies to all cases in which a discharge is applied for after the passage of the act. It was so explained to the House of Representatives by Mr. Tremain, who had the bill in charge ; Congressional Record, June 17, 1874, p. 60; and the words are almost precisely like those of the statute, which was so construed in Ex parte Lane, 3 Met. 213, in which Wilde, J., speaking for the court, said : " The court can have no authority to grant a discharge against a prohibition in the statute.” And the other cases cited are similar. In all, the law was changed without any express application to future or past cases, and the court unhesitatingly applied it to both classes.

This construction is aided by the express words of the repeal which are found in sections 9 and 21. The repeal is unqualified and I know of no rule which will authorize me to limit the scope of the enactment of repeal, unless it were, indeed, to save rights or titles already vested. And this brings me to what I venture to call the fallacy that such a change in the bankrupt law is retroactive if it is made to affect pending cases. A law which discharges debts already contracted may well be called retroactive; and this law, if retroactive at all, would be so not merely as to cases begun, but as to contracts entered into before its passage. But it is well settled that a mere modification of the conditions upon which a discharge shall be granted to bankrupts is not retroactive.

6 It is clear,” says the eminent jurist already quoted, “ that the appellant had no vested right to a discharge at the time of filing his petition. Such a right could be acquired only by proving, at the time of applying for a certificate of discharge, that he had in all respects complied with the provisions of statutes 1838 and 1841 (the latter of which was passed after he had been adjudged an insolvent), by which only a right could be acquired. The latter statute, therefore, is not to be considered a retrospective act, disturbing vested rights, but as altogether prospective in its operation, although it (the discharge) might depend, in some cases, upon acts done before it took effect.” 3 Met. 215.

The statute in Ex parte Lane was much more like a retrospective act than is that of 1874, because it actually deprived the insolvent of a discharge for a preference given before the act went into operation. This law neither creates new frauds nor relieves a bankrupt from the consequences of any which he has committed, but merely lightens somewhat the arbitrary conditions before imposed on honest bankrupts as a preliminary to obtaining a certificate. Such a law is always held to be remedial. In re Billing, 2 B. R. 161; Revere v. Newell, 4 Curt. 587.

It is said that one section of the amended act explicitly declares its applicability to pending cases, and another limits itself to cases begun after a certain day. This is true of those sections. But most of the sections leave the matter to interpretation, and must be judged by the subject

Vol. I.]

MERRIFIELD v. City OF WORCESTER.

(No. II.

matter. Thus, section fourteen says that all proceedings may be discontinued upon the assent of a majority of the creditors. There can be no doubt that this covers all cases, whether begun before or after June 22. To settle a case in that way, may disappoint some hopes of creditors, but it is remedial, and disturbs no vested rights. So of the section now under consideration. The words seem plain to my apprehension ; and the cases cited show how such laws have usually been understood.

I do not mean that there may not be many pending cases which have passed the stage at which the law would be applicable to them, in which, for instance, the debtor or the creditors may have been already entitled to a decree, which only remained to be formally pronounced when the new law went into operation. But, speaking generally, I say that the law was prospective, and applied to all cases in which the actual right had not been acquired, and that all inconsistent acts are unconditionally repealed.

A much more difficult question in my judgment may arise in respect to voluntary cases, namely, whether the assent referred to is that of the given number and value of all creditors who have proved their debts, or only of those to whom the bankrupt is liable as principal debtor ; but as this is a compulsory case, that point need not be decided now.

Discharge granted.

SUPREME JUDICIAL COURT OF MASSACHUSETTS.

[TO APPEAR IN 110 Mass.]

RIPARIAN RIGHTS.

· POLLUTION OF WATER BY SEWERS OF CITY.

NEGLIGENCE.

MERRIFIELD v. CITY OF WORCESTER.

If the water of a stream becomes polluted by the emptying into it of city sewers, 80 that

riparian proprietor cannot use it in his business as he has been before accustomed to do, he cannot recover against the city for the pollution, so far as it is attributable to the plan of sewerage adopted by the city ; but he can recover for it so far as it is attributable to the improper construction or unreasonable use of the sewers, or to the negligence or other fault of the city in the care or management of them.

TORT. Writ dated April 5, 1871. The declaration alleged that the plaintiff was seised and possessed of a lot of land on both sides of Mill Brook, so called, in Worcester, with a machine shop thereon, fitted up with a large steam-engine and boilers for the purpose of furnishing steampower to the tenants of his said machine shop; that he had a right to have the water of the brook flow pure and uncorrupted, such water in a pure condition being absolutely essential to the carrying on of his works; that the defendants, on April 5, 1861, and on divers days and times since, “ wrongfully and unjustly cast, carried, and deposited, and caused to be

Vol. I.)

MERRIFIELD v. CiTY OF WORCESTER.

[No. 11.

cast, carried, and deposited into said Mill Brook and the waters thereoi, at points in the channel thereof above and higher than the works of the plaintiff, great quantities of filth, dirt, gravel, refuse material, matter discharged from sewers, privies, water-closets, stables, sinks, and streets, and divers other noxious materials and ingredients," by reason of which the water became greatly corrupted and unfit for use in the plaintiff's business, “said water so corrupted, among other things, corroding the plaintiff's boilers and engine and fixtures, causing an adhesion of sediment and other materials to said boilers, and greatly increasing the expense of making the necessary amount of steam for said works, and greatly increasing the danger of explosion in said boilers, and causing thereby frequent breakages in the engine, fixtures, and works, and deterioration thereof, and causing great expense in the repair thereof and in the interruption to the running of the works, thereby causing great injury to all of the plaintiff's establishment;" and that the waters of the brook so corrupted are thereby rendered so offensive that it is difficult and expensive to procure competent engineers and workmen to operate said works."

At the trial in this court, the case, which is stated in the opinion, was reserved by Chapman, C. J., for the determination of the full court. If the court should be of opinion that the plaintiff was entitled to recover upon the case reserved, or any part thereof, the case to be sent to assessors to assess the damages sustained by the plaintiff, if any, upon such rules and instructions as the court should give ; otherwise, judgment to be rendered for the defendants.

P. E. Aldrich, for the plaintiff, cited Merrifield v. Lombard, 13 Allen, 16; Wesson v. Washburn Iron Co. Ib. 95; Wheeler v. Worcester, 10 Allen, 591; Goldsmid v. Tunbridge Wells Improvement Commissioners, L. R. 1 Ch. 349; Attorney General v. Metropolitan Board of Works, 1 Hem. & Mil. 298; Attorney General v. Council of Borough of Birmingham, 4 K. & J. 528; Oldaker v. Hunt, 6 De G., M. & G. 376 ; Attorney General v. Leeds Co. L. R. 5 Ch. 583; Spokes v. Banbury Board of Health, L. R. 1 Eq. 42; Lingwood v. Stowmarket Co. Ib. 77; Wood v. Sutcliffe, 2 Sim. (N. S.) 163; Angell on Watercourses (6th ed.) § 136 ; Kerr on Injunctions, 382.

G. F. Hoar f T. L. Nelson, for the defendants, cited Boston g Roxbury Mill Co. v. Newman, 12 Pick. 467; Hildreth v. Lowell, 11 Gray, 345; Wellington, petitioner, 16 Pick. 89, 97; Flagg v. Worcester, 13 Gray, 601 ; Callis on Sewers, 80 ; Woolrych on Sewers, 1; Jacob, Law Dict. Tit. Sewer.

WELLS, J. The plaintiff sues for an alleged violation of his rights as a riparian proprietor upon a small natural stream running through the city of Worcester, near its centre. The injury complained of is that of polluting its water, so as to render it unfit for mechanical and other uses, to which he has been accustomed to apply it. He alleges generally that the defendant, in 1861, and on divers days and times since, has cast, and caused to be cast, carried and deposited into said brook, above the plaintiff's works, “ great quantities of filth, dirt, gravel, refuse material, matters discharged from sewers, privies, water-closets, stables, sinks, and streets, and divers other noxious materials and ingredients.” The declaration does not set out the particular grounds upon which it is proposed to

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