Cooper against William Harding and George Smith
| Jurisdiction | England & Wales |
| Judgment Date | 28 June 1845 |
| Date | 28 June 1845 |
| Court | Court of the Queen's Bench |
English Reports Citation: 115 E.R. 737
QUEEN'S BENCH
S. C. 9 Jur. 777. Applied, Johnson v. Emerson, 1871, L. R. 6 Ex. 380.
[928] cooper against william harding and george smith. Saturday, June 28th, 1845. If attorneys, conducting the business of a fiat in bankruptcy, take out a summons to attend before a commissioner under stat. 6 G. 4, c. 16, s. 33, which is disobeyed, and they afterwards obtain a warrant of the commissioner to arrest and bring before him for examination the party so summoned, which warrant proves invalid, the attorneys are not liable in trespass, if they have taken no ateps in the execution of the warrant, except ordering it to be prepared by an agent, who, when it was ready, gave the messenger notice to take it. Although the attorneys, in applying for the warrant, used urgency, and, being told by the commissioner that they must take it at their peril, said they would do so. For the granting of a summons, under stat. 6 G. 4, c. 16, s. 33, to bring before commissioners a person "known or suspected" to have property of the bankrupt in his possession ; semble, per Lord Detiman C.J. and Williams J., and Held, by Coleridge J., that the suspicion required is that of a party applying for such summons, and not of the commissioner. [S. C. 9 Jur. 777. Applied, Johnson v. Emerson, 1871, L. R. 6 Ex. 380.] Trespass for assaulting plaintiff, and for imprisoning and detaining him in prison without any reasonable or probable cause (a). Pleas by defendant Harding. 1. Not guilty. Issue thereon. 2. Stating bankruptcy of John Jones and John Boon, and fiat (to be prosecuted in the county of Stafford), under which they were adjudged bankrupts. That afterwards, and after the passing of stat. 5 & 6 Viet. c. 122, Her Majesty appointed a district Court of Bankruptcy, called the Birmingham district, and the fiat was removed into that Court by general order of the Lord Chancellor under the statute (A). That afterwards, viz. 13th November 1843, the plaintiff "was a person suspected of having some of the estate of the said bankrupts in his possession (n), and was capable of giving information concerning the trade, dealings and estate of the said bankrupts, according to the true intent and meaning of the statute in such case made and provided, and material to the full disclosure of the dealings of the said bank [929]-rupts : and thereupon, to wit "on," &c., "at Birmingham," &o., "Edmund Robert Daniel Esq., then and still being a commissioner of the Court of Bankruptcy duly appointed and authorized to act in the prosecution of fiats in bankruptcy for the said Birmingham district for the purposes of the said Act, and being duly authorized to act as such Court in the prosecution of the said fiat, suspecting the plaintiff of having some of the estate of the said bankrupts in his possession, and believing the plaintiff to be capable of giving such information as aforesaid, did, by a certain summons, (a) There was no allegation of malice, nor any other special averment. (6) Stat. 5 & 6 Viet. c. 122, ss. 46, 52, 59. (c) Stat. 6 G. 4, c. 16, s. 33. K. B. xr.iv.-24 738 COOPER V. HARDING 7 Q. B. 0. bearing date "to wit," &c., "and directed to the said plaintiff, summon the said plaintiff personally to be and appear before a commissioner acting in the prosecution of the said fiat on a certain day in the said summons specified, to wit," &c., " at the said Birmingham District Court of Bankruptcy in Birmingham aforesaid, then and there to be examined by virtue of the said fiat, and of the said statutes in such cate," &e. Averments, that plaintiff was served with the summons, but (though having no lawful impediment) did not appear. " Whereupon he the said William Harding did afterwards, to wit on," &c., "at," &c., "as solicitor to the said fiat, and to one Thomas Wood, who was then an assignee under the said fiat," &c,, " according to the statutes in force concerning bankrupts, apply to the said commissioner to issue a warrant under his hand and seal to apprehend the plaintiff and bring him before the said commissioner to be examined as aforesaid ;" and the commissioner then being duly authorized to act, and acting, as such Court of Bankruptcy as aforesaid, by his warrant under his hand and seal, bearing date, &c., and directed, &c. (to the messenger under the fiat and his assistant), after re-[930]-citing (a) the fiat and proceedings down to the default, required and authorized the messenger and his assistant to arrest plaintiff and bring him before a commissioner acting in prosecution of the fiat, at, &c., on, &c., in order to his being examined as aforesaid. The plea then averred delivery of the warrant to the messenger to be executed, " by virtue of which said warrant the defendant W. Harding, as such solicitor as aforesaid, then caused and procured the messenger to, and the said messenger did then by virtue thereof, take and arrest," &c.; concluding with the ordinary averments in justification. Verification. Replication to plea 2. (After...
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