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Opinion of the court.

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the Congress has enacted similar laws, and it is matter of history that the framework of those acts, as well as much of their details, was drawn from the various acts of Parliament upon the same subject, and the remark is equally applicable to the principal features of the act uyder consideration, in respect to all the parts of the same, whose construction is involved in the case before the court. Such acts of Parliament have never, in terms, included debts due to the sovereign of the country; and the decisions of the courts of Westminster Hall, for more than a century, have held, without an exception, that such acts or the proceedings under the same do not discharge debts due to the crown.*

Text writers also, of the highest authority, have uniformly promulgated the same rule. Speaking of the order of discharge, Deacon says,† it does not release the bankrupt from a debt due to the crown, for as the crown is not bound by any statute unless specifically named, and crown debts not being mentioned among those of the creditors in general, in any part of the statute relating to the proof of debts or the certificate of discharge, the crown of course will not be barred of the peculiar privileges it possesses for the recovery of its own debts.

Nor does the Bankrupt Act impair or supersede the laws for the collection of taxes, and that rule also is founded upon the same canon of construction, to wit, that the crown is not bound by the bankrupt laws, and, therefore, says Shelford, the appointment of assignees does not relate to the act of bankruptcy as against the crown process, but the bankrupt's personal property is bound under an extent even when tested subsequently to the appointment of the assignees. To which he adds, that the bankrupt's certificate is no discharge as against the crown.g

Such a certificate, says Robson, will not release the bankrupt from any debt or liability incurred by means of any

* Attorney-General v. Alston, 2 Modern, 248; Anonymous, 1 Atkyns, 262. On Bankruptcy, vol. 1 (3d edition), 784; Rex v. Pixley, Bunbury, 202. On Bankruptcy, 303.. Oraufurd v. Attorney-General, 7 Price, 5.

On Bankruptcy (2d edition), 553.

Opinion of the court.

fraud, nor from debts due to the crown, nor from debts with which the bankrupt stands charged at the suit of the crown, or of any person for any offence against a statute relating to any breach of the public revenue, or at the suit of the sheriff or other public officer, on a bail bond entered into for the appearance of any person prosecuted for any such offence.

With a single exception, not material in this case, the views of Cooke are the same as those expressed by Shelford. He says the crown is not bound by the acts relating to bankrupts, not being named in them; therefore an extent served upon the property of the bankrupt will bind it from the teste of the writ and until the actual assignment of the commissioners, but the king is bound by an actual assignment, because the property is then absolutely transferred to a third person.*

Different explanations have been given as the reason of the rule in different adjudications, but perhaps there is none more satisfactory than the original one, that the sovereign is not bound by the act because not named as a creditor in any of its provisions. But the reason for the rule assigned in a recent decision in the Exchequer Chamber is also entitled to much consideration as supporting the original rule. Throughout the Bankrupt Acts the word creditor, says Mr. Justice Blackburn, is used in the sense of a person having a claim which can be proved under the bankruptcy, to which he might have added, and one not required by the act to be paid in full in preference of all other creditors.t

Greater unanimity of decision in the courts or of views among text writers can hardly be found upon any important question than exists in respect to this question in the parent country, nor is there any diversity of sentiment in our courts, Federal or State, nor among the text writers of this country.

Perhaps the earliest decision in this country was that given in the case of United States v. King, which was made almost at the beginning of the present century. In that case

*Eden on Bankruptcy, 143.

† Woods v. De Mattos, 3 Hurlstone & Coltman, 995.

Wallace's Circuit Court, 18.

Opinion of the court.

the question was directly presented and was as directly adju dicated, the court holding that debts due to the United States are not within the provisions of the Bankrupt Act. Other decisions of like character are found in the State Reports.

It is a maxim of the common law, said Savage, C. J., that when an act of Parliament is passed for the public good, as for the advancement of religion and justice, or to prevent injury and wrong, the king shall be bound by such act though not named, but when a statute is general and any prerogative, right, title, or interest would be divested or taken from the king, in such a case he shall not be bound unless the statute is made by express words to extend to him, for which he cites both English and American authorities, and adds, that the people of the State being sovereign have succeeded to the rights of the former sovereign, and that the people of the State are not bound by the general words in the insolvent law.*

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Sanctioned as that principle is by two express decisions of this court, it would seem that further discussion of it is unnecessary, as it has never been questioned by any wellconsidered case, State or Federal, and is founded in the sumption that the legislature, if they intended to divest the sovereign power of any right, privilege, title, or interest, would say so in express words; and where the act contains no words to express such an intent, that it will be presumed that the intent does not exist.t

Such a conclusion, to wit, that Congress intended that the certificate of discharge given to a bankrupt should include his liability as a surety for the faithful performance of duty by a public officer, ought not to be adopted unless such au intention is expressed in clear and unambiguous terms, as the rule, if established, would, in all probability, lead to

* People v. Herkimer, 4 Cowen, 348; see also Commonwealth v. Hutchinson, 10 Pennsylvania, 466, which is to the same effect; Hilliard on Bankruptcy (2d edition), 295.

+ United States v. Knight, 14 Peters, 315; Dollar Savings Bank v. United States, 19 Wallace, 239; United States v. Hoar, 2 Mason, 311; Commonwealth v. Baldwin, 1 Watts, 54.

Statement of the case.

great loss to the public treasury and to great public embar

rassment.*

JUDGMENT REVERSED, and the cause remanded with directions to

ISSUE A NEW VENIRE.

MCPHAUL v. LAPSLEY.

1. An affidavit filed under the act of the legislature of Texas, approved May 13th, 1846,-requiring an affidavit as to the fraudulent character of an instrument of writing, properly recorded, and filed among the papers of the cause, the purpose of requiring the affidavit being to relieve the party meaning to offer the instrument introduced from the burden, after he has filed it among the papers in the cause, of proving its execution, unless the other side swear that it is a forgery-is properly rejected when not filed within the time prescribed by the act.

2. A testimonio executed, in 1832, by the proper Mexican authorities, of a power of attorney for the conveyance of lands, is within the recording acts of Texas.

3. Such a testimonio, under Spanish law, and the adjudications of the Supreme Court of Texas, is considered as a second original, and of equal validity with the first, and is admissible in evidence though not recorded.

4. Evidence of a person who was not the keeper of the archives, nor in any way officially connected with the office to which they belonged, and which was offered to prove that such a testimonio was not a copy of the protocol (this not being produced), though the witness had in his hand photographs of certain pages of the protocol which did conform in other respects than that of signature and date with the testimonio, and when it was not offered to follow the evidence up in any way, held properly rejected; the testimonio being more than forty years old, much litigation having existed on the title made under it; it never having been previously questioned; it having been received in a former case, by this court, as valid, and important rights having grown up on the faith of it; and the instrument being now questioned, not by the parties to it, but by a defendant setting up a hostile title which he failed to establish.

ERROR to the Circuit Court for the Western District of Texas; the case being thus:

* Regina v. Edwards, 9 Exchequer, 50.

Statement of the case.

The State of Texas has made a succession of statutes, on the subject of recording instruments, relating to the titles of real estate. They are thus:

1. An act of 20th December, 1836, after requiring all persons who claim lands, by deed, lieu, or any other color of title, to record their instruments of title in the clerk's office of the county where the land lies within twelve months from the 1st April, makes it, by the thirty-fifth section, the duty of the clerk to record all deeds, conveyances, mortgages, and other liens, and all other instruments in writing, provided that one of the witnesses shall swear to the signature of the signer, or he, himself, shall acknowledge the same.

The fortietli section enacts that no deed, conveyance, lien, or other instruments respecting lands, shall take effect as to third persons until proved and recorded.

2. An act of 10th May, 1838, repealed the limitation of twelve months, in the act of 1836, just referred to.

These acts are cited by the Supreme Court of Texas, in Guilbeau v, Mays,* with the statement that subsequent legislation had not materially changed them.

The subsequent legislation is thus:

3. An act of January 19th, 1839, makes it the duty of county clerks to record all "deeds, conveyances, mortgages, and other liers affecting the title to land; provided that one of the subscribing witnesses shall swear to the signature of the signer, or he, himself, shall acknowledge the same before the clerk," &c. All laws in conflict are repealed.

The act further provides in its second section (and the provision bears specially upon this case), that "copies of all deeds, &c., when the originals remain in the public archives, and were executed in conformity with the laws. existing at these dates, duly certified by the proper officer, shall be admitted to record where the land lies."

4. An act of May 12th, 1846, makes clerks of the county court recording officers for their several counties.

The fourth section makes it their duty to record "all

* 15 Texas, 414.

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