four months of the last step of the said diligence, with concurrence of the said C. & Co. to whom he was so indebted as aforesaid, apply, by summary *13] petition to the lords in council and session of the first division of the

Court of Session in Scotland, for the sequestration of the whole real and personal estate of him the defendant. The plea then stated that a sequestration was granted, and meetings fixed and advertised, as required by section 16, of the 54 G. 3, c. 137, and that the petition was registered as required by section 22. It then stated that the meetings were holden; that at the first, an interim factor, and at the second, a trustee was chosen. That meetings for the examination of the bankrupt were appointed and advertised, as required by section 32. It then set out the amount of debts proved, and of the debts of those creditors who consented to the bankrupt's discharge, showing that the number required by sections 61, and 64, gave such consent. A petition for the discharge was then set out in the terms of the sixty-first section, and that the court on the 11th of March, 1818, did find defendant entitled to be finally discharged of all his debts contracted before the said application to sequestrate his estate, and did grant commission to the sheriff depute of the county of Edinburgh, to take the oath of the defendant. Averment, that the defendant did make oath that he had complied with all the requisites of the 54 G. 3, c. 137; and that afterwards, to wit, on the 2d of June, 1820, the court by their decree did find that defendant had complied with all the requisites of the statute, and therefore found him freed and discharged of all debts contracted by him before the 21st of May, 1816. Averment, that the several supposed debts and causes of action in the declaration mentioned accrued to the plaintiff before the 21st of May, 1816, and were proveable under the *said sequestration. Issue on the first two pleas, and to the third, repli*14] cation, that the said causes of action accrued to the plaintiff in England.

Demurrer and joinder.

Scarlett, in support of the demurrer. The claim of the plaintiff was barred by the discharge under the sequestration, although the debt was contracted in England. The proceedings under the sequestration are calculated to give notice to creditors wherever they are resident; and the 54 G. 3, c. 137, s. 61, which gives the discharge to the bankrupt, is general in its terms, and makes no distinction between debts contracted in Scotland, and in other places. But the question does not depend upon the statute alone; for in The Royal Bank of Scotland v. Cuthbert, et al., 1 Rose, 462, it was decided by the Scotch court, that a certificate obtained under an English bankruptcy discharged Scotch debts contracted before the date of the commission. The jus domiclii is to govern the distribution of the estate, and the principle is known to our law, that a discharge in a foreign country is a discharge here.

Campbell, contra. If the 54 G. 3, c. 137, had been an act of the Scotch parliament, it is clear that it could not have operated as a discharge of this debt. If the debt had been contracted in Scotland, a discharge there would have been a discharge every where ;t but it is otherwise when the debt is contracted in a foreign country. It has frequently been decided that a 15"] foreign bankruptcy is no bar to the demand of a debt contracted here; Quin v. Keefe, 2 H. Bl. 553, Smith v. Buchanan, 1 East, 6. But it must be admitted, that the 54 G. 3, c. 137, being an act of the parliament of the United Kingdom, was made by an authority capable of saying that the Scotch sequestration shall operate as a discharge here. The question then is, what was the intention of the legislature. Since the Union, all the judicial regulations of the courts have remained the same, and the judgments of Irish and Scotch courts are still treated as foreign judgments. The title of the act is not immaterial: it is, "An act for rendering the payment of creditors more equal and expeditious in Scotland." Now where an act is made relating

+ See Ballantyne v. Golding, Co. Bkpt. Laws, 464. Pepder v. M'Master 8 T. R. 609. Potter v. Brown. 5 East, 124. B2

VOL. X.-3

expressly to one particular part of the United Kingdom, prima facie as least, it applies to that alone, and it cannot have a larger operation, unless such an intention on the part of the legislature is clearly made out. The notices which are required to be given in the London Gazette, might be for the information of Scotch creditors resident in England. If this plea be a bar to the action, then all English creditors must, in similar cases, go down to Scotland, in order to prove their debts there. So, also, an Englishman, being insolvent, might go down into Scotland, and become domiciled there by a short residence, and then take the benefit of a Scotch sequestration, under which the distribution of the estate is very different from that which is made under an English commission.t An English creditor certainly might prove under a Scotch sequestration, but a trustee under such a sequestration could [*16 not sue in England, for a debt due here. Jeffrey v. M Taggart, K. B. Hil. 57 G. 3. The creditor, therefore, proving in Scotland, would not have the same advantage as under an English commission of bankruptcy. The same difference arises as to the real property. If the Scotch sequestration bars an English commission, the English real property cannot be touched. Selkrig v. Davis. In the face of these difficulties the court will not hold that the debt is barred by the sequestration, unless the intention of the legislature that it should be so is plainly expressed. In the case of the Bank of Scotland v. Cuthbert, an opinion was thrown out, that a certificate under the 5 G. 2, c. 30, barred a debt in Scotland; but that was not the point decided. [Bayley, J. It appears to me, that some of the difficulties which you mention apply equally to English commissions and Scotch sequestrations. Is there any clause in the 49 G. 3, c. 121, which transfers the bankrupt's real property in Scotland and Ireland?] The only case which can be cited in favor of the defendant is Odwin v. Forbes, 1 Buck. 57, where a suit in Demerara, was held to be barred by a certificate under an English commission: but there the debt arose in England; for although the goods were shipped from Demerara, yet the order was given, the goods were delivered, and the bills for the price were accepted in England. That it was to be considered as a debt arising in England, is therefore plain, from Lewis v. Owen, 4 B. & A. 654, which is also important in another point of view; for there the court said, that a certificate under a commission of bankruptcy in Ireland, since the union with that country, could have no greater operation than a certificate under a Scotch sequestration, *which was never thought to discharge a debt contracted [*17 in England.

Scarlett, in reply. [Abbott, C. J. You have this difficulty to contend with. Supposing a debt contracted in England, to be discharged by the certificate under a sequestration, the bankrupt may enjoy real property in England, without discharging his debts.] In the cases of the Bank of Scotland v. Cuthbert, and Selkrig v. Davis, it appears to have been considered that the creditors might compel the bankrupt to assign his real property, by withholding his certificate until he consented to do so. Besides the 29th section of the 54 G. 3, c. 137, appears to have contemplated the passing of real estates in England, as well as Scotland. As to the title of the act, that relates merely to the residence of the debtor, not of the creditors, and the sixty-first section gives the discharge from all debts contracted before the application for sequestration, without reference to the place where they were contracted. Cur. adv. vuli.

The judgment of the court was now delivered by

ABBOTT, C. J. This case was argued in Easter term, in the last year, when the present Lord Chief Justice Best, was one of the Judges of this Court. It stood over for some time in order that an amendment might be made in the

+ Per Lord Eldon, in Selkrig v. Davis, 2 Rose, 314.

defendant's special plea, and afterwards for the consideration of the court; the judgment which I am now about to deliver, is to be considered as the opinion only of my Brothers Bayley and Holroyd, and myself. We are of opinion that judgment must be given for the defendant.

*The action is for goods sold and delivered and on the common money 18*] counts, the venue being laid in London. The defendant has pleaded the general issue and the statute of limitations upon which no question arises. He has also pleaded, that before and at the time of the accruing of the several causes of action in the declaration mentioned, and also before and on the first of Junuary, 1816, and from thence continually until the sequestration of his estate in the plea after mentioned, he was a merchant and trader in gross and by retail, residing and carrying on his trade at Edinburgh, in Scotland; and then has proceeded to allege, with all due formalities, a sequestration and a decree of the lords of council and session, discharging him from all debts contracted before the 21st of May, 1816, being the date of the application for sequestration, and has averred that the plaintiff's several causes of action accrued before that day, and were proveable under the sequestration. To this plea the plaintiff has replied, that the several causes of action accrued in England. The defendant has demurred to the replication, and the plaintiff' has joined in demurrer.

The plea is framed upon the statute 54 G. 3, c. 137, of which statute the sixty-first section gives the discharge. The statute is entitled "an act for rendering the payment of creditors more equal and expeditious in Scotland.” And the question is whether a trader residing in Scotland, and during such residence contracting a debt in England, can be discharged from it under a sequestration issued in Scotland, in conformity to that statute, in like manner as from a debt contracted in Scotland. The statute is an act of the parliament of the United Kingdom, competent to legislate for every part of the kingdom, and to bind the rights of all persons residing in England, equally with those of persons residing in Scotland. There is, there19] fore, no question as to the authority of the power by which the statute was passed, and the question must turn entirely upon the construction and effect of the statute. By the sixty-first section, the bankrupt is enabled, with the concurrence of the persons therein mentioned, to apply to the Court of Sessions by petition, praying that he may be held as finally discharged of all his debts contracted before the application for sequestration; and the court is authorised, under the circumstances therein mentioned, to pronounce an act or order in terms of the prayer of the petition. The expression here is "all debts," and it is used without any reference or regard to the place where the debts may have been contracted. It must be admitted, however, that notwithstanding this generality of expression, it is possible that debts contracted in England, may be out of the general operation and view of the statute, and, therefore, not to be comprehended within the terms, " all debts." But there is not a single expression in the statute importing that debts contracted in England, are to be excluded from its operation; and there are many provisions manifestly showing the contrary.

By section 15. Any creditor, without reference to his country or residence, or the place at which the debt was contracted, may petition for a sequestration, the deposition being made before any judge ordinary or justice of the peace, and the sequestration is to be of the debtor's whole estate and effects, heritable and moveable, real and personal, for the benefit of his whole, just, and lawful creditors,

By sect. 17. The interim manager is to take possession of the bankrupt's whole estate and effects, and of the title deeds and instructions 20*] of his estate; and the bankrupt must, if required, grant powers of attorney, or other deeds necessary or proper for the recovery of his estate and effects situate in foreign parts.

By sect. 25. The bankrupt is required to exhibit a state of his affairs, specifying the whole estate and effects, heritable and moveable, real and personal, wherever situate.

By sect. 29. When the nomination of a trustee has been approved, the court shall ordain the bankrupt to execute proper deeds of conveyance, making over to the trustee his whole estate and effects, heritable and moveable, real and personal, wherever situate, with full powers of recovery and sale for behoof of the creditors, and on refusal to do so, may be punished by imprisonment; and whether such deeds be executed or not, the whole estate and effects, of whatever kind, and wherever situate, (in so far as may be consistent with the laws of other countries when the effects are out of Scotland,) shall be deemed to be vested in the trustee for behoof of the creditors.

By sect, 33. The bankrupt is to make oath, that the state of his affairs contains a full and true account of all his estate and effects, heritable and moveable, real and personal.

By sect. 41. The trustee is to proceed to recover and convert into money the whole estate under his management or power, whether at home or in foreign parts.

By sect. 43. Oaths of verity upon debts may be taken before any judge ordinary or justice of the peace: and where any creditor is out of the kingdom of Great Britain and Ireland, an oath of credulity by his agent, taken in the same manner, shall be sufficient.

*Upon the view of these clauses it is manifest, that all the property [*21 of the bankrupt of every kind and wherever situate, is to be taken from him for payment of his debts; and that creditors, wherever resident, may prove their debts and receive their share of the estate.

But this is not all: notices are required to be given in the London Gazette, as well as in the Edinburgh Gazette, on important occasions: as of the meetings to choose an interim manager and a trustee, sect. 16: of the appointment of the trustee, and the two days appointed for the public examination of the bankrupt upon the state of his affairs, sect. 32: of meetings of creditors for directing a sale of remaining effects, and of the time of the sale, sect. 56: of the bankrupt's petition for his discharge, of which the court is to resume the consideration at a distance of not less than three months, sect. 61: and of a meeting after the expiration of three years for the disposal of outstanding effects, sect. 75.

Now it appears to us, that the legislature would not have required these notices unless it had been intended that the discharge should operate upon English as well as Scotch creditors. No sufficient reason has occurred to us for giving the opportunity of inquiring into the affairs and conduct of the bankrupt, and of objecting to his discharge, to persons against whom the discharge would be inoperative with reference to a proceeding in an English court. If it be said, that it was intended only to enable English creditors to take the benefit of the sequestration if they should so think fit, and to object to the discharge for the purpose of retaining their right of suit in Scotland, this argument will contain an acknowledgment that English creditors may have the benefit of the sequestration; and then, it being clear that the [*22 bankrupt is deprived of all his property for the benefit of all his creditors who choose to partake of the distribution of it, by an act of a legislature having authority over all parts of the United Kingdom, justice seems manifestly to require that no one who may partake of the benefit, should be allowed to sue the debtor, whose all has been thus given up, if by accident he may happen to meet with him in England. And, therefore, we think we ought not to narrow the effect of the language of the sixty-first section, but to give to the phrase, all his debts," the meaning usually and ordinarily belonging to those words.

66

Several cases were quoted in the argument at the bar, which I will now

proceed to notice. The cases of Smith v. Buchanan, 1 East, 6, and Potter v. Brown, 5 East, 124, arose upon discharges under the authority of American states, that is, of legislatures not competent to bind the subjects of this country. Pedder v. M Master, 8 T. R. 609, arose on a discharge at Hamburgh, and came before the court on an application to discharge the bail and enter an ezoneretur on the bail-piece, which of course would not be done if the effect of the discharge was doubtful. Quin v. Keefe, 2 H. Bl. 553, came before the court first in the same way, and afterwards upon a plea which was badly pleaded, and there was no decision on the merits. It was the case of an Irish certificate, and of a debt contracted in England, while the defendant was residing here. The case of Jeffery v. M Taggart, which was before this court in February, 1817, on a motion for a new trial, arose, indeed, upon this act of the 54 G. 3, c. 137, but the question was entirely different from the 23] present. It was an action of assumpsit brought by the trustee under a Scotch sequestration in his own name. The demand had vested in the trustee under this statute, so far as by the law of this country it could do, but as the assignee of a chose in action cannot, by the common law of this country, sue in his own name but must sue in the name of the assignor, and as this statute gives no express power to the trustee to sue in his own name, and the statute 1 Jac. c. 15, s. 13, does expressly give such a power to the assignees under an English commission, it was decided that the action was not well brought in the name of the trustee.

Upon this view of the cases, it appears that no one of them contains a decision contrary to our present opinion, which is founded not upon any general principle, but upon the effect of the particular statute on which the defendint's plea is framed. And for the reasons already mentioned, the judgment of the court is to be entered for the defendant.

Judgment for the defendant.

24]

*M.GREGOR v. THWAITES, et al.

Declaration for a libel purporting to contain an account of a proceeding which had taken place before a magistrate respecting a matter in which he was merely asked for advice, and not called upon to act in his magisterial capacity. The libel itself alleged that A. B. and C. D. stated the matter charged to the magistrate, a great part of which was not actionable when spoken, but became so when written. Plea, that A. B. and C. D. did go before the magistrate and make the statement set forth in the libel, and that it contained a correct account of the proceedings before the magistrate, and that the facts charged in it were true. The jury found that the matters contained in the libel were not true, but that it contained a correct account of the proceedings which had taken place before the magistrate: Held, first, that, as the matter brought before the magis trate was not brought before him in his judicial character, or in the discharge of his magisterial functions, the defendant could not justify the publication on the ground of its being a correct report of the proceedings which had taken place before the magistrate. Held, secondly, that it was no justification that the defendants, when they published the libel, mentioned the names of the parties who stated the matter of the libel to the magistrate, because as to part of the slanderous matter no action would lie against the party who stated it to the inagistrate; it had become actionable merely from its having been published by the defendants in print, and therefore, by stating the names of the persons from whom they heard it, they gave the plaintiff no right of action against them. Held, thirdly, that, in order to justify the repeating of slander, it was necessary that the party repeating it should, at the time of repeating it, offer himself as a witness to prove the uttering of the slander, and therefore, that, as the defendants did not state that they themselves heard the slander uttered by A. B. and C. D., but merely stated that A. B. and C. D. had said so and so, the plea was bad.

DECLARATION charged, that the defendant published the following libel in the Morning Herald newspaper, in the shape of a report of certain pro