Clarke v Parker
| Jurisdiction | England & Wales |
| Judgment Date | 18 November 1812 |
| Date | 18 November 1812 |
| Court | High Court of Chancery |
English Reports Citation: 34 E.R. 217
HIGH COURT OF CHANCERY
Reports of CASES ARGUED' and DETERMINED In the HIGH COUET OE CHANCERY, from the Year 1.789 to 1817. By FRANCIS YSSEY, JUNIOR, Esq., Barrister-at-Law. Yol. XVIII. Second Edition. 1827. [1] GO (lEORGK 111. 1811. wood, Ex parle. Feb. 5th, 6th, 1811. [S. C.| 1 Rose's Jlanlcrupt Cases, 46.-Protection of Commissioners of .Bankruptcy, granted at a private meeting, on the application of the bankrupt tho day after he was served with notice, and before the first public mooting, good. Order on the Plaintiff in the action to discharge tho bankrupt; and the officer to pay the costs. The Petition stated, that a Commission of .Bankruptcy issued against the petitioner Alfred Wood and his partners William Andrew Wood and John Birch, of Manchester, cotton, merchants; dated the 22d of December 1810; under which they were duly declared bankrupts ; and by the summons of tho Commissioners, dated the 2d of January 1811, the bankrupts wore required to surrender themselves to the said Commissioners or tho major part of them forthwith, and on tho 19th and 21st days of January 1811, and the 16th of February next, at the George Inn, Manchester, to bo examined by tho said Commissioners touching tho discovery and disclosure of their estate arid effects. The petitioner in pursuance of the said summons surrendered himself to the major part of the Commissioners on the 3d of January 1811, tho day after it was served on [2] him ; and submitted to be examined, &o. ; a memorandum, of which surrender and submission was indorsed by the Commissioners on the said summons to surrender. On the 6th of January the petitioner was arrested at the suit of George and William Shaw by writ of Latitat; and though he produced the summons and memorandum, signed by the Commissioners, and claimed to be discharged, the officer persisted in detaining him ; and on the 14th of January he was committed to the castle of Lancaster. The Petition prayed an Order, that the petitioner shall be discharged from the custody of the gaoler of Lancaster at the suit of George and William Shaw at the expence of the officer. Tho Commissioners by their certificate stated, that on tho 3d of January they declared tho parties bankrupts ; and appointed the days of meeting ; and on 3d of January, William Andrew Wood and Alfred Wood surrendered themselves in pursuance of the Commissioners' summons to them, at a meeting, fixed by the Commissioners at the request of the said bankrupts for the purpose of taking their surrender ; and submitted themselves to be examined, &c. Mr. Leach, in support of the Petition, no one appearing against it, obtained an Order upon the Plaintiff in the action to discharge the Petitioner, and upon the Officer to pay the costs of the discharge and of the Petition. 217 218 EX PARTE WOOD 18 VES. JTOI. 8. Mr. Richards, on the following day produced an affidavit by the officer ; stating, that he was advised, that there is no decision as to the validity of a protection, granted at a private meeting ; that having arrested the bankrupt on the 4th of January, the day before the [3] advertisement in the Gazette, and the summons being shewn to him, he consulted the Plaintiff's attorney ; who theatened him with an action for an escape ; and the Counsel, who was consulted, recommended him as the question was undecided, and doubtful, to persist in the arrest. Lord Chancellor [Eldon]. I ordered the officer to pay the costs ; the bankrupt being clearly, by analogy to other cases, whether within the terms of the Act of Parliament, or not, entitled to his discharge ; and therefore to be indemnified against the cxpenco, occasioned by the arrest. The exact case occurred lately in the House of Lords. An attorney had arrested a Peeress, entitled to privilege of Parliament. In the transaction ho had done nothing, which did not appear, according to his notion of the Law, to be his duty. His conduct was marked with great propriety : but the rule is, that he, who violates the privilege of a person from arrest, especially in the instance of a bankrupt, must indemnify him against the expence. If it will be any satisfaction to the officer, who has had the misfortune to get into this situation, 1 have no difficulty in saying, he has acted rightly and worthily : but the bankrupt must not be put to the expence of replacing himself in that state of freedom from arrest, to which he was entitled from the moment he received the protection of the Commissioners. The Order therefore stood, as it was pronounced.(1) (1) Previously to this decision considerable difference of opinion prevailed upon the point, whether a bankrupt could receive protection by a surrender before the first public meeting. Mr. Christian, in his valuable work (Origin, Progress, and present Practice of the Bankrupt [4] Laws, 1st vol. p. 132), has stated the reasons against the validity of such a protection : in effect, 1st, that the terms of reference in the 5th section of the Act 5th George II. c. 30 (now repealed), " having surrendered " as aforesaid," and " such summons or notice," can apply only to a surrender after, and in consequence of, the notice, that the party is declared bankrupt; in the 1st section, directed to be left at the bankrupt's place of abode, or to be served personally, if he is in prison ; arid the notice, to be published in the London Gazette, that the Commission has issued, and of the time and place of meeting : 2d, that the submission to bo examined must mean at a time and place, advertised for creditors to attend : 3d, that the protection for a period, exceeding forty-two days, is a violation of the language of the Act : 4thly, that the protection is directed to bo given in order to his attendance upon his assignees; who are not chosen for some time after the commencement of the forty-two days : 5th, the evidence of collusion ; where the bankrupt appears, and claims protection, immediately upon the adjudication. The following are the principal reasons, that seem by a fair construction of the Act of Parliament to support the practice, which has now the sanction of high authority ; to take the surrender upon the bankrupt's application at any time after the declaration of bankruptcy. The 5th section of the Statute 5th George II. c. 30, directing, " that the bankrupt " shall be free from arrest in coming to surrender, and from the actual surrender " of such bankrupt to the said Commissioners for and during the said forty-two days " (mentioned in the 1st section), in terms applying to the full period, upon general principles of constructionsupposos asurrender previous to its commencement; and cannot, without some violence to language, be understood as the remainder of the time from the first public meeting; necessarily short by some days of that full period, described in terms intelligible and plain. A remarkable difference of expression occurred in the preceding part of the same sec [5]-tion.; giving the bankrupt liberty to inspect his books, not " for and during " but " at all seasonable " times before the expiration of the forty-two days " : correctly marking the distinction, that during a part of the period there would not, except in the case of a provisional assignment, bo assignees, in whose presence, or by whose authority, the inspection was to be had. The subsequent words " and in order thereto," which, understood as relating1 to the bankrupt's attendance on his assignees, would raise the same objection to a surrender at the first public meeting, referred with more propriety 18.VE8. JlttT. S. EX PARTE WOOD 219 to the immediate antecedent, " the better to enable the bankrupt to make a full " discovery," Such being the plain interpretation of the 5th section, there was nothing in any other part of the Act, necessarily requiring a construction, not merely strained, but perfectly inconsistent with that. The qualification as to the manner of giving notice was added, in the 1st section for very special purposes ; that the creditors should be distinctly apprised of the period, within which they would have the opportunity of proving their debts, and examining the bankrupt : for the more important object of insuring to the bankrupt notice, and marking with precision the time, when he would incur the severe penalty, imposed on his omission to surrender. The reference in the 5th section, if applied to the notices, mentioned in. the 1st, might be well understood without including the qualification, as to the mode of giving notice, added with a particular view to the direct objects of the 1st section : having no connection, and clearly inconsistent, with the provisions of the 5th ; but, attending to the expired Act 5th George 1st, c. 24, s. I, the foundation of the argument from this supposed reference wholly fails : and the cause of the difficulty in construing the subsequent Act, is obvious : the adoption, almost in terms, of the clause, imposing penalties upon a violation of the protection ; not adverting to the important change in its nature and limits. The former Act giving the protection only " in going to, staying with, or coming from, the [6] said Com-" missioncrs, in case such bankrupt shall attend the said Commissioners in obedience to " any notice or summons from them," such summons or notice was the proper evidence, as it was the sole basis, of the protection, granted upon attendance in obedience to it under that Statute; but those terms are perfect irrelevant to the more beneficial and extended protection, to which the latter Statute gave the bankrupt a positive right, not depending upon any summons or notice to attend the Commissioners ; and the case Ex parte Leigh, 1 Glyn & Jam, 264, has sanctioned this construction. The clause, which, as it stood in the prior Act, evidently had relation to the particular notice or summons immediately preceding, not to the notices, previously mentioned in the first enacting part of the...
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