Vol. I.J IN RE GRIFFITHS. [No. 11. 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 throughout the United States, approved March 2, 1867,' and the acts amendatory thereof and supplemental thereto, and have conformed to all the requirements of the said act and the acts amendatory thereto." The first section of the act of July 27, 1868 (15 U. S. Stats. at Large, 227), amends the second clause of the thirty-third section of the said act of 1867, so as to read as follows: "In all proceedings in bankruptcy, commenced after the first day of January, eighteen hundred and sixty-nine, no discharge shall be granted to a debtor whose assets shall not be equal to fifty per centum of the claims proved against his estate, upon which he shall be liable as the principal debtor, unless the assent in writing of a majority in number and value of his creditors to whom he shall become liable as a principal debtor, and who shall have proved their claims, be filed in the case at or before the time of the hearing of the application for discharge." By the first section of the act of July 14, 1870 (16 Ib. 276), it was declared that the provisions of the second clause of the thirty-third section of said act of 1867, as amended by the first section of the said act of 1868, shall not apply to those debts from which a bankrupt seeks a discharge, which were contracted prior to the 1st of January, 1869. com The requirements of the act of 1868 apply to "all proceedings in bankruptcy' menced after the 1st of January, 1869, whether the petition be one filed by, or one filed against the debtor. Under those requirements, the right to discharges in this case is not shown. But the certificate of the register implies that it is supposed that, because this is a case of compulsory or involuntary bankruptcy, discharges may and must, under the act of June 22, 1874, be granted, without a compliance with the requirements of the act of 1868. The ninth section of the act of 1874 provides as follows: "In cases of compulsory or involuntary bankruptcy, the provisions of said act (the original bankruptcy act of March 2, 1869), and any amendment thereof, or of any supplement thereto, requiring the payment of any proportion of the debts of the bankrupt, or the assent of any portion of his creditors, as a condition of his discharge from his debts, shall not apply; but he may, if otherwise entitled thereto, be discharged by the court in the same manner and with the same effect as if he had paid such per centum of his debts, or as if the required proportion of his creditors had assented thereto. And in cases of voluntary bankruptcy, no discharge shall be granted to a debtor whose assets shall not be equal to thirty per centum of the claims proved against his estate, on 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 thirty-three of said act of March 2, 1867, requiring fifty per centum of such assets, is hereby repealed." The provisions of the act of 1868 were in amendment of the thirty-third section of the act of 1867. What is the effect of the ninth section of the act of 1874? Was it intended to apply to cases commenced before the date of its passage? It does not repeal anything except the provision "requiring fifty per centum of such assets," and the twenty-first section of the act of 1874 repeals only such acts and parts of acts as are inconsistent with the provisions of the act of 1874; that, in the present case, it should be necessary to comply with the requirements of the act of 1868. Does the repeal of the provision "requiring fifty per centum of such assets," make the act of 1868 inapplicable to the present case? ent from the act. "In cases The ninth section of the act of 1874 must be construed in connection with the other provisions of the same act. The language of the ninth section is general. It says: of compulsory or involuntary bankruptcy," and "in cases of voluntary bankruptcy." This language is satisfied by applying it to cases to be commenced after the passage of the act of 1874. That is the natural meaning of such language. It is not to be construed as applying to cases commenced before and pending at the time of the passage of the act of 1874, unless the intention to have it so apply is apparThe intention to have other provisions of the act of 1874 apply to cases commenced before its passage is manifested and declared by that act, and if such intention is not declared in regard to the provisions of section nine, and if those provisions can have proper scope without applying them to cases commenced before the passage of the act of 1874, and especially if to apply those provisions to such cases would be inconsistent with the intent manifested by all the provisions of the act of 1874, considered together, then the inference is proper, that it was not intended that those provisions should apply to cases commenced before the passage of the act of 1874. The twelfth section of the act of 1874, in amendment of the thirty-ninth section of the act of 1867, in regard to cases of compulsory or involuntary bankruptcy, declares that the provisions of such twelfth section shall apply to cases commenced after the 1st of December, 1873, and prior to the passage of the act of 1874, as well as those commenced after its passage. So, too, the seventeenth section of the act of 1874, which prescribes proceedings for a composition with creditors, prescribes them for all cases of bankruptcy now pending or to be hereafter pending.' Under the act of 1874, in cases of compulsory or involuntary bankruptcy, commenced after its passage, one fourth in number and one 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 adjudged a bankrupt. The idea of the act, then, seems to be, that if such number and value of creditors bring the debtor into court, in cases commenced after its passage, he shall not be required, in order to obtain a discharge, to obtain any further assent of any creditor to his discharge, or to pay any specified proportion of his debts, for it provides, in section nine, for dispensing, in such case, with the payment of any per centum of debts, and with the assent of any proportion of creditors. The bringing of the petition is regarded, in respect to cases commenced after the passage of the act of 1874, as the assent of the one fourth in number and the one third in value of the creditors to the discharge. But a voluntary petitioner comes into court of his own volition and without the previous agreement of any of his creditors. As to such a case, commenced after the passage of the act of 1874, the ninth section of that act declares that the debtor shall not have a discharge unless his assets be equal to thirty per centum of the claims proved against his estate, upon which he shall be liable as principal debtor, or unless one fourth of his creditors in number and one third in value assent to his discharge. In regard to voluntary cases, the assent of creditors seems to be required, with a view of placing the bankrupt on the same footing, as to the action of creditors, with the bankrupt in involuntary cases, the thirty per centum of assets being regarded as the equivalent of the assent. The ninth section of the act of 1874 does not contain language simply repealing, as a whole, the provision found in the act of 1868. It prescribes what per centum of assets there must be in cases of voluntary bankruptcy, namely, thirty per centum, and then repeals the provision requiring fifty per centum of such assets." Provision being made by it for cases of compulsory or involuntary bankruptcy, and also for cases of voluntary bankruptcy, without any declaration that cases pending at the time of the passage of the act are referred to, the repeal of the fifty per centum provision may properly be regarded as a repeal of it only in pari materia with the scope of the rest of the section, with which it is joined by a copulative, and as repealing it only in reference to cases to be commenced after the passage of the act. In this view, there is nothing in the provision of the act of 1868, as applicable to cases pending at the time of the passage of the act of 1874, that is inconsistent with the provisions of 66 the ninth section of the latter act, because such last named provisions have reference only to cases to be commenced after the passage of the act of 1874. One consequence of holding that by virtue of the ninth section of the act of 1874, discharges can be granted in this case without a compliance with the provisions of the act of 1868, would be that, in some cases of involuntary bankruptcy commenced before the passage of the act of 1874, bankrupts would have obtained discharges only on a compliance with the act of 1868; in other such cases bankrupts would have endeavored to comply with the act of 1868, but failed to obtain the assent of their creditors; and in other such cases bankrupts would have made an effort to obtain discharges because satisfied they could not obtain such assent; and yet now all bankrupts put into involuntary bankruptcy in proceedings commenced before the passage of the act of 1874, would obtain discharges without procuring any assent of any creditor. This would work a practical discrimination among involuntary bankrupts in cases commenced before the pas sage of the act of 1874, resulting in injustice to some, or in injustice to the creditors of some; injustice to bankrupts who had complied with the act of 1868, or injustice to the creditors of those who had failed to obtain the assent required by the act of 1868. A construction which would so operate is not to be given, unless imperatively indicated. In considering the question, the fact has not been overlooked that under the act of 1874 the requirement that one fourth in number and one third in value of the creditors shall join in order to put a debtor into compulsory bankruptcy, applies to all cases commenced after the 1st of December, 1873; but such fact is of no moment. The debtor so put into bankruptcy in a case commenced between the 1st of December, 1873, and the 22d of June, 1874, must, indeed, although put into bankruptcy by one fourth in number and one third in value of his creditors, still comply with the provisions of the act of 1868, before he can obtain a discharge. But this is only through a failure in the act of 1874 to relieve him from the operation of the act of 1868, and imposes upon him no burden to which he was not subject when the act of 1874 was passed. Entertaining these views, I must withhold discharges in this case until the provisions of the act of 1868 are complied with." Vol. I.] 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. "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. 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 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. 11. 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. If the water of a stream becomes polluted by the emptying into it of city sewers, so that a 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 thereof, 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&T. L. Nelson, for the defendants, cited Boston & 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 |