Cotton against James, Gent., one, &
| Jurisdiction | England & Wales |
| Judgment Date | 30 June 1830 |
| Date | 30 June 1830 |
| Court | Court of the King's Bench |
English Reports Citation: 109 E.R. 735
IN THE COURT OF KING'S BENCH.
S. C. 8 L. J. K. B. O. S. 345: at Nisi Prius, 3 car. & P. 505; Moo. & Mal. 273. Followed, Isitt v. Beeston, 1868, L. R. 4 Ex. 159. Referred to, Johnson v. Emerson, 1871, L. R. 6 Ex. 343.
cotton against james, gent., one, &c. Wednesday, June 30th, 1830. In an action for maliciously suing out a commission against the plaintiff, under which he was adjudged a bankrupt, and his goods seized, but which was afterwards superseded, the plaintiff proved in addition to these facts, an action of trespass brought by him against the defendant for the seizure: plea, alleging the bankruptcy, issue joined on that fact, and verdict for the plaintiff. He further proved, that shortly before the commission was taken out, he had removed some goods under circumstances which did not make the removal an act of bankruptcy, but were probably relied on by the defendant as having that effect. It was not shewn that this was the fact upon which the commissioners made their adjudication, or by which the defendant supported his plea in the former action. Held, that this was sufficient evidence to throw on the defendant the onus of proving probable cause. [S. C. 8 L. J. K. B. 0. S. 345: at Nisi Prius, 3 Car. & P. 505 ; Moo. & Mai. 273. Followed, Isitt v. Beeston, 1868, L. R. 4 Ex. 159. Referred to, Johnson v. Emerson, 1871, L. R. 6 Ex. 343.] Case for maliciously suing out a commission of bankrupt against the plaintiff. Plea, not guilty. The cause was tried before Lord Tenterden C.J., at the sittings for Middlesex after Trinity term, 1829. It appeared that the defendant having purchased an estate [129] at Worthing, the plaintiff, an architect and surveyor, contracted with him, in May 1827, to build some houses upon it; and for that purpose the defendant agreed to furnish him with certain sums of money at stated times, and with bricks at a stipulated price. The security for payment was to be, in the first instance, the buildings themselves; after they were finished, the debt was to be paid off, or the defendant to have mortgages. When the buildings were partly completed, a disagreement arose between the parties, and in October 1828 the defendant commenced an action against the plaintiff for 991. arrears of interest on the money advanced. It appeared doubtful on the evidence, whether this demand could have been supported. Little progress had been made in the building for some months ; after the commencement of the action it was wholly left off, and some sash-frames and other articles, valued altogether at 3001., which had been brought upon the premises for the completion of the work, were taken to Shoreham by the plaintiff's son, who had principally managed the building for his father, but appeared to have acted without his...
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...Hawkes, [1891] 2 Q.B. 718; (1891), 60 L.J.Q.B. 332; on appeal, [1891] 2 Q.B. 718, followed. (4) Cotton v. JamesENR(1830), 1 B. & Ad. 128; 109 E.R. 735, followed. (5) Elsee v. Smith(1822), 2 Chit. 304; 1 Dow. & Ry. K.B. 97. (6) Everett v. Ribbands, [1952] 2 Q.B. 198; [1952] 1 All E.R. 1, con......
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.... their silence in circumstances in which they would be expected to answer might convert that evidence into proof : Cotton v. James, 1 B. & Ad. 128, 130, 135; Taylor v. Willans (1831) 2 B. & Ad. 845; Reg. v. Inland Revenue Commissioners, Ex parte T.C. Coombs & Co. [1991] 2 A.C. 283, 300F.” ......
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