Clarke v. Ray

1 H. & J. 318

• Court: General Court of Virginia
• Decided: May 15, 1802
• Status: Published

Opinion

Key, Ch. J.

delivered the following opinion: After hearing and considering the arguments of counsel, I am of opinion, that a person who falls within the purview of the bankrupt law of the United States, after commitment of three months, cannot avail himself of the benefit of a state insolvent law, if the creditors of such person sue out a commission of bankruptcy against him within six months next succeeding the act of bankruptcy occasioned by his commitment.

The first section of the law of Congress gives to the creditors a period of six months to prosecute com. missions of bankruptcy after the act of bankruptcy committed.'

It is contended, that the sixty-first section must be taken into consideration with the first section, and that it operates as a restriction of the time in the special case of bankruptcy arising from imprisonment; and that but three months is allowed in this latter instance, it being in favor am libertatvs.-

In sound construction the two sections must be taken together; and in my judgment they are consistent with each other, and the sixty-first section is not re* pugnant to* nor does it restrict or abridge the operation of the firsts

No part of a law ought to be considered as a repeal or restriction of a former express provision in the same law, unless such construction be inevitable.

The. subject of bankrupt laws early engaged the at* tention of this country; and to produce a system of uniformity with respect to merchants and traders, the constitution of the United States took from the individual states all power on this subject, and gave it to the general government. The states were left in possession of the power to pass insolvent laws. But as to the bankrupt system, when Congress legislated ora that subject, the states ceased to have power except so far as that law gives it.

The'Jirsi section, considering the extended situation; of our country, and the relative situation of the several states, adopted a reasonable and wise limitation in point of time, viz. six months to prosecute a commission of bankruptcy; more time might have been oppressive to the debtor, less might have been injuri* ous to the distant creditors.

No man can make himself a bankrupt* Hence it is obvious, that if none of his creditors prosecuted a commission of bankruptcy, a debtor, against the principles of humanity and the general sentiment of this country, might be imprisoned for life; and this gave rise to the provisions of the sixty-first section.

But “it is necessary that this section should be so Construed as to repeal the provisions of the first, cjuoad debtors lying in gaol for three months.”

I am of opinion it does not, and that the policy of this section was to compel the creditors to sue out a commission within the time prescribed, or if they, did not, the debtor might avail himself of a state insol- . vent law. Congress did not legislate with a view to the local laws of any state. Some states have permanent insolvent laws, others have annual ones, but none of them admit a debtor to be finally liberated in less than three months proceedings; and there is a great difference between imprisonment for life, and imprisonment until an annual session of a legislature takes place nest after creditors shall have for sis months failed to prosecute a commission.

Under my ideas of the bankrupt law, if a debtor be imprisoned for three months, and no commission is sued out by his creditors, he may apply for the benefit of an-insolvent law, and if the commission is not sued in six months, may have full benefit of the insolvent law; but if after his application, and within six months after the act of bankruptcy committed, his creditors sue out a commission, it draws the transaction (rom state cognizance to the forum, where the constitution and the law of congress place it, and precludes state relief.

This construction gives efficacy and consistency to the,first and sixty-first sections. It- prevents the clashing of the general government and state jurisdictions, and enables the debtor if Jte has acted honestly and fairly to have the full benefit of the bankrupt law.

If three months imprisonment, as has been contended, ousts the operation of the' bankrupt law, remote creditors would be defeated of its provisions. All and every creditor is entitled to make his debtor (if a merchant or trader and committing an act of bankruptcy,) a bankrupt. Now a creditor cannot know that bis debtor will remain in gaol two' full months, and until that event takes place no act of bankruptcy Is committed. If then the bankrupt law ceases to operate after an imprisonment of three months, then, there is but one month allowed in Maine or Massachusetts to prosecute a commission of bankruptcy against Ids debtor in Savannah or Hie Natchez. Creditors in the neighbourhood may do it, but as all are to haver an equal right, I cannot lessen the express limitation of the first section by a forced construction of the’ sixty-first section.

Again — if at the end of three months imprisonment fixe bankrupt law ceases to operate on a- debtor, it is against the express provisions of the first section, and precludes distant creditors, in remote states, from making their debtors bankrupts, and draws their business into state courts, and jjiakes their property in debts liable to state regulations, against the constitution of the United States, which gives to them federal tribunals for the determination Qf their rights: a construction that draws these consequences must not be by implication; it should be imperative pnd unavoidable, which does not exist in this case.

These are the reasons which infiueii.ce my opinion* drawn amidst the hurry of incessant engagements.