Exch. 65); but in both those cases no alternative course was shewn to exist; and this distinction was clearly pointed out by the learned Judge at the trial, and by Cockburn, C.J. in the former of these cases. With respect to the six horses, there was not a particle of evidence of a contract, of the time of starting, or of any delay: it is the clear practice of railway companies, in ordinary course, to have a written contract, and none was produced here, though it is clear there

was one.

ERLE, C.J.-I am of opinion that this rule, so far as it relates to the twelve horses, should be discharged. It appears to me that there is great force in much that has been urged on behalf of the defendants, as to "Wolverhampton meaning the Herbert Street station; but it seems to me there was some evidence to go to the jury that it meant the Bushbury Junction. This matter was left to the jury; the learned Judge is not dissatisfied; and I do not think it would benefit the railway company to have a new trial on the ground of the verdict being against evidence. With respect to the provision that the horses were to be carried at the owner's risk, .I think that the stipulation is entirely free from the decision of the House of Lords in Peek v. the North Staffordshire Railway Company (18 Com. B. Rep. 805, 826; s. c. 26 Law J. Rep. (N.s.) C.P. 25); for it seems to me that the learned and noble Lords who decided that case recognized the doctrine that it is reasonable for a railway company to have two modes of carriage-one, by which they take a great responsibility, and carry by horse-boxes, and another, by which they carry at a cheaper rate, but at a greater risk to the bailor. The contract of the railway company is to deliver the horses in a reasonable time at the owner's risk. Whatever may happen to them on the journey is to be at the owner's risk. But where the contract is to deliver within a reasonable time, there is a duty entirely distinct from the question of damage which may arise from accident on the journey. If a railway company are bound to carry horses in twenty-four hours at the owner's risk, and the horses do not arrive accordingly, then, whether the horses are damaged or not, there is a breach of contract, for which the company are liable. With respect to damage to the horses on the road, in my opinion the company would not be liable for extra damage, but would be liable for all damage which might arise from the breach of contract in not arriving within a reasonable time. This is the total result of the trial in respect of the twelve horses and the 601.

With respect to the six horses, which are alleged not to have been delivered in a reasonable time, the ground the plaintiff relied on was, that because the horses, somehow or other, got into a truck on part of the Great Western Railway, and somehow or other got out of the truck at the terminus at Manchester, therefore there might have been a contract by the Great Western Railway Company to take them to Manchester in a reasonable time. I am clearly o opinion that there was a contract, according to the usual course of the railway company, of which the Judges may almost take judicial notice; and, further, there is direct evidence in this particular case that the railway company took the animals on a written contract; and the plaintiff, in my opinion, cannot, by throwing before the jury the chance facts that, somehow or other, the horses got into the truck at one place, and, somehow or other, got out at another, .ask the jury to infer a contract by the Great Western Railway Company to carry them. It is quite clear there was a written contract, and the plaintif kept it from the jury, for the best possible reason, because it would disprove the thing which he asked the jury to infer. I think there was no evidence to go to the jury that the defendants were liable as to the six horses; and therefore, as to that part of the rule, it must be made absolute to enter a verdict for the defendants.

WILLES, J. and KEATING, J. concurred.

Rule, as to the first count, discharged; and as to the second, made absolute to enter a verdict for the defendants, and reduce the damages by 301.

[IN THE COMMON PLEAS.]

Jan. 20, 1866.

PHILLIPS AND OTHERS v. POLAND.

35 L. J. C.P. 128; L. R. 1 C.P. 204.

Bankrupt Act, 12 & 13 Vict. c. 106. s. 112-Protection from Arrest. BANKRUPTCY.-An order for protection, granted under the 12 & 13 Vict. c. 106. s. 112, does not protect a bankrupt from arrest at the suit of a subsequent creditor, even though he has not passed his final examination.

This was a rule calling on the plaintiffs and the sheriff of Middlesex to shew cause why the defendant should not be discharged out of custody, on the ground that he was privileged both at common law and by the protection granted by one of the Commissioners in Bankruptcy, under the 12 & 13 Vict. c. 106. s. 112. from arrest, till he had passed his final examination.

On the 1st of March, 1864, the defendant filed a petition in bankruptcy, and on the 22nd of March, 1864, he was duly adjudged bankrupt and surrendered, and protection was thereupon granted to him till the 28th of April, 1864. the time appointed for his last examination. This protection was renewed from time to time till the 29th of January, 1866, in order that he might pass his final examination on that day. In August and September, 1865, he purchased of the plaintiffs the goods which were the subject-matter of the action, and, on the 9th of December, 1865, judgment was signed.

On the 16th of December, 1865, a sheriff's officer came to the defendant's lodgings and produced a writ of fi. fa. on the judgment; and on being informed. by the defendant that the goods there were not his and that he was a protected bankrupt who had not passed his final examination, and being shewn the order of protection, such officer produced a writ of ca. sa. and arrested the defendant.

An application had been made on the 19th of December, 1865, to Byles, J. at chambers, to discharge the defendant from custody, and he had referred the application to the Court.

Bullar shewed cause.-The question turns on the 12 & 13 Vict. c. 106. s. 112, which enacts, that if a bankrupt " be not in prison or in custody at the date of the adjudication, he shall be free from arrest or imprisonment by any creditor in coming to surrender, and after such surrender during the time by this act limited for such surrender, and for such further time as shall be allowed him for finishing his examination, and for such time after finishing his examination, until his certificate be allowed as the Court shall from time to time by indorsement upon the summons of such bankrupt think fit to appoint." Now, first, there are three acts partially in force relating to this matter, viz., 12 & 13 Vict. c. 106, 17 & 18 Vict. c. 119. and 24 & 25 Vict. c. 134. By the 24 & 25 Vict. c. 134, the interpretation clause of the 12 & 13 Vict. c. 106. is repealed (see section 230), a new interpretation clause is enacted (see section 229), and the three acts are to be read as one act (see section 232). This being so, " creditor " in the first act must receive the same interpretation as in the third; and on looking through this last act it will be found that wherever the word creditor is used, it is used in reference to creditors who can prove under the bankruptcy. And a different interpretation of the same word cannot be given in different portions of the same act, unless there be something clearly to indicate that this was intended-The King v. the Guardians of the Holborn Union (6 Ad. & E. 68). But, secondly, the case of Grave v. Bishop (25 Law J. Rep. (N.S.) Exch. 58; s. c. reported as Grace v. Bishop, 11 Exch. Rep. 424) is conclusive on the point; that case was decided on this very section, and is on all-fours with the present case, the only difference being that there the bankrupt had passed his last examination. But that was quite immaterial, and the Court decided that E. R. A. [1866]-VOL. 2 3

66

the section only gave protection against creditors under the bankruptcy. the Freston Cases (30 Law J. Rep. (N.S.) Chanc. 460; s. c. 30 Law J. Rep. (N.S.) Q.B. Rep. 133; 30 Law J. Rep. (N.S.) Exch. 89) are inapplicable, for there the creditor was one who had proved.

Quain, for the sheriff, admitted the only distinction between the present case and Grave v. Bishop (25 Law J. Rep. (N.S.) Exch. 58; s. c. reported as Grace v. Bishop, 11 Exch. Rep. 424) was the one pointed out.

Nasmyth, in support of the rule.-The word "creditor," in the 12 & 13 Vict. c. 106. s. 112, extends to all creditors of every description. The case of Grave v. Bishop (25 Law J. Rep. (N.S.) Exch. 58; s. c. reported as Grace v. Bishop, 11 Exch. Rep. 424) is distinguishable on the ground that there the bankrupt had passed his final examination. This distinction is material, because the object of the section is, that the bankrupt should be at full liberty, in order to assist the Court in every way in disclosing every matter in respect of his property, and in collecting it for the benefit of the creditors; and this object would be equally interfered with, whether the arrest was by an antecedent or subsequent creditor; and therefore as long as the Court requires his assistance, and he has a duty to perform in respect of his property, i. e. down to the final examination, he should be protected against every one. And if it be said that this would entail inconvenience and injustice to third parties, it must be recollected that the time during which the protection would last is practically short, and during that time it is known that the debtor is a bankrupt; and therefore this inconvenience is much less than that which would be entailed by the contrary construction. Again, Davis v. Trotter (8 Term. Rep. 475), Ex parte Dalton (1 Ball & B. 130), Darby v. Baugham (5 Term. Rep. 209), and Ex parte Leigh (1 Glyn & J. 264), are authorities in favour of the present argument; and in Chitty's Practice (9th edit. p. 725) it is said, "It would seem from the cases decided under repealed acts on this subject, that these provisions (i. e. 12 & 13 Vict. c. 106. ss. 112, 113.) extend to all arrests by creditors, whether for debts provable under the fiat or not.'

The

WILLES, J.-This is a rule calling on the plaintiffs and the sheriff to shew cause why the defendant should not be discharged out of custody. judgment in this action was in respect of a debt incurred in September, 1865; the action was for goods sold and delivered; the judgment was regularly entered up, and a ca. sa. issued thereon, under which the defendant was arrested. He now claims to be discharged, because he is entitled to protection under section 112. of the Bankrupt Law Consolidation Act, 1849, and he claims this protection under these circumstances. The petition was presented in March, 1864; on the 22nd of that month the defendant was adjudicated bankrupt, and he obtained an order for protection, which was renewed from time to time, and will not expire till the 29th of this present month. And there is no doubt that he was arrested whilst the time was running to which the protection extended. When he was arrested he was not at, going to, or returning from the Court of Bankruptcy, nor was he engaged in business relating to the proceedings in Bankruptcy, although he had not yet passed his last examination. On these facts, it is for us to decide whether he was rightly arrested on the 16th of December last. This question depends, not on any common law privilege, as he was not going to, attending or returning from the Court of Bankruptcy, but on the construction to be put on the word "creditor" in section 112, a section whereby the period during which the bankrupt is protected from arrest may be extended and the protection enforced, not only where the common law privilege exists, but also during the period between the time of his surrender and that of finishing his examination, and "for such time after finishing his examination, until his certificate be allowed, as the Court shall from time to time, by indorsement upon the summons of such bankrupt, think fit to appoint.'

The question for our consideration is, what is the meaning of the word "creditor"; whether it means any creditor for any debt whenever accruing, or one who can come in and prove under the bankruptcy? I am of opinion

that the latter is the true construction. The rule is clear, that general words are to be construed generally, and so as to give full effect to them, unless there be something in the statute to shew that a contrary construction is to be put upon them. But it is also equally clear that general words are to be restrained to matters with which the statute is dealing; and if it be dealing with a certain subject-matter, they are to be restrained to it, unless it appears that the legislature was dealing with something larger. General words are to be restricted according to the persons or things in contemplation of the legislature; and it seems, therefore, on reading section 112, and looking to the use of the word "creditor" in other portions of the statute, that the intention of the legislature was to confine the word creditor" to one who would come in and prove under the bankruptcy. The force of the argument to the contrary consists in respect of the necessity of protecting the bankrupt against, not only creditors who can prove, but also those whose debts have accrued since the bankruptcy. Now, as to this: a Court is appointed, before which the bankrupt is to appear, to which he is to surrender, which he is to assist by information, as to his affairs, and which is to receive, on the final examination, a complete account of his proceedings, by which it is to be guided in considering the question of his order of discharge. It is suggested that it is necessary that the bankrupt should be in a position always to appear before the Court in discharge of the duties imposed on him by the legislature, and that it is not unreasonable to protect him against creditors whose debts have accrued since the bankruptcy, just as a witness is protected when called on by a subpœna to give evidence. The contention, to a certain extent, is true; but in order to make it a valid reason in support of the proposition contended for, it is necessary to go further, and to shew that the bankrupt has no such protection unless the statute be so construed. Now, no such proposition as this is laid down anywhere, or supported by any authority; and a bankrupt in attending before the Court has the same protection as a witness. That alone is sufficient to dispose of the argument. But in addition another answer is afforded by the terms of section 112. itself, because it expressly gives a right to have the bankrupt brought up, when in prison or custody, by order of the Court, whenever it is necessary for the purposes of the bankruptcy proceedings, a power which extends, not merely to cases where the process is in respect of debts, but also where it is in respect of criminal liabilities; for the words are," whenever any bankrupt is in prison or in custody under any process, attachment, execution, commitment or sentence." Therefore, not only is there the common law protection, but an express power given by statute.

So much, therefore, as to the argument: now as to authority. I pass over the cases of Davis v. Trotter (8 Term. Rep. 475), Ex parte Dalton (1 Ball & B. 130), and Ex parte Leigh (1 Glyn & J. 264), because in the reports of them it does not appear when the debts accrued; and Ex parte Freston (30 Law J. Rep. (N.s.) Chanc. 460; s. c. 30 Law J. Rep. (N.S.) Q.B. Rep. 133; 30 Law J. Rep. (N.s.) Exch. 89), because there the original execution creditor had proved under the bankruptcy; and it is therefore not necessary to make any remark on them. The only cases it is necessary to refer to are Darby v. Baugham (5 Term Rep. 209) and Grave v. Bishop (25 Law J. Rep. (N.S.) Exch. 58; s. c. reported as Grace v. Bishop, 11 Exch. Rep. 424). As to Darby v. Baugham (5 Term Rep. 209), that is an authoritative decision of Lord Kenyon; and it is relied on as supporting the proposition that the analogous section (section 5.) of the statute 5 Geo. 2. c. 30. (which protected the bankrupt from a liability to arrest for debt up to the finishing of his examination) applied, whether the debt of the arresting creditor accrued before or after the bankruptcy. It is necessary to look to the circumstances of that case, and to compare it with Grave v. Bishop (25 Law J. Rep. (N.s.) Exch. 58; s. c. reported as Grace v. Bishop, 11 Exch. Rep. 424). The circumstances of the former case were peculiar. It seems that the execution creditor was an accommodation acceptor; and, as I infer from the report of the case, the bill was drawn before,

but became due and was paid after the bankruptcy. The case was peculiar, because it was a case where the original liability was incurred by the bankrupt before his bankruptcy, and where, although the payment was made by the execution creditor, who stood in the position of surety for the bankrupt, after the bankruptcy, proof of such payment could be given under the bankruptcy. It is true that when Lord Kenyon decided the case there was no statutory provision in force-as I supposed during the argument, and Mr. Baron Platt seems to have supposed in Grave v. Bishop (25 Law J. Rep. (N.s.) Exch. 58; s. c. reported as Grace v. Bishop, 11 Exch. Rep. 424)-similar to the 49 Geo. 3. c. 12. s. 8; but in turning to 2 Christian's Bankrupt Laws, 2nd edit. 354, which is the touchstone in these matters, whilst I find that this statute was the first statute containing a provision which allowed sureties who paid after the examination to prove under it, I also find a series of authorities (the first decided in 1791, which was two years, and the second in 1792, one year before Lord Kenyon's decision) which decided that the Lord Chancellor in Bankruptcy would give relief to the surety by making the creditor prove as trustee for him. Mr. Christian doubts the soundness of this; but it is clear that in Bankruptcy the difficulty as to proof by a surety paying after bankruptcy, was got over. This being so, the case of Darby v. Baugham (5 Term Rep. 209) does not seem so much opposed to Grave v. Bishop (25 Law J. Rep. (N.S.) Exch. 58; s. c. reported as Grace v. Bishop, 11 Exch. Rep. 424) as would at first appear. Now, unless Darby v. Baugham (5 Term Rep. 209) is to be explained in the way I have pointed out, Grave v. Bishop (25 Law J. Rep. (N.S.) Exch. 58; s. c. reported as Grace v. Bishop, 11 Exch. Rep. 424) is a decision on the very point decided by it, because, although there is a difference between the two statutes, 5 Geo. 2. c. 30, and the Bankrupt Law Consolidation Act, 1849, yet that difference does not touch the point which we are at present discussing; for the only difference between the two statutes is, that the latter extends the time during which protection can be afforded to the bankrupt, but the latter statute does not either enlarge or restrict the class against whom the bankrupt is to be protected. And the present case can only be distinguished from Grave v. Bishop (25 Law J. Rep. (N.s.) Exch. 58; s. c. reported as Grace v. Bishop, 11 Exch. Rep. 424), which was decided on section 112. of the Bankrupt Law Consolidation Act, 1849, on the ground that there the protection was claimed after the bankrupt had passed his last examination. But the language of the statute as respects the persons to be bound is the same, and we cannot give the word "creditor" two meanings according as the arrest is before or after the last examination; the case of Grave v. Bishop (25 Law J. Rep. (N.S.) Exch. 58; s. c. reported as Grace v. Bishop, 11 Exch. Rep. 424) is, therefore, in point. And on the question of authority the matter stands thus: that if Darby v. Baugham (5 Term Rep. 209) be not explainable in the way I have pointed out, then we have a case decided in the year 1793 one way, and another case decided in 1855, after full discussion, the other way. And we must adopt the latter, and act on it if it be irreconcilable with the former.

MONTAGUE SMITH, J.-I am of the same opinion. No question arises here as to the defendant's right at common law to be discharged from custody, for he was not going to, attending, or returning from the Commissioners, or engaged in any business relating to the bankruptcy. He was in his lodgings, and was there arrested. The question must depend on the proper construction to be put on the Bankrupt Law Consolidation Act, 1849. I think on the question of construction we are bound by the case of Grave v. Bishop (25 Law J. Rep. (N.S.) Exch. 58; s. c. reported as Grace v. Bishop, 11 Exch. Rep. 424), which does not seem distinguishable, and in which the Court, after taking time to consider, discharged the rule. Mr. Nasmyth, who has argued ably for the defendant, confessed he had no authority in his favour on the construction of the statute, and the only decision he has relied on is one of Lord Kenyon's, in the case of Darby v. Baugham (5 Term Rep. 209). I think that case is to be supported on the reasons given by my Brother Willes, and that the decision