Doswell against Impey and Two Others
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1823 |
| Date | 01 January 1823 |
| Court | Court of the King's Bench |
English Reports Citation: 107 E.R. 61
IN THE COURT OF KING'S BENCH.
[163] doswell against impey and Two others. 1823. Commissioners of bankrupts are not liable to an action of trespass for committing a person who does not answer to their satisfaction when examined before them touching the estate and effects of a bankrupt. Trespass for false imprisonment. Pleas, first, not guilty ; secondly, a justification, under 5 G. 2, c. 30, s. 16, which it is unnecessary to set out, as nothing turned upon the form of the plea, and an abstract of it is given in the judgment delivered by the Court; thirdly, a justification similar in substance to the second ; fourthly, a general justification, under 13 Eliz. e. 7 ; fifthly, a similar justification, under 1 Jac. 1, c. 15. Issue on the first plea; demurrer to the second and third, and joinder; and replication de injuria to the fourth and fifth pleas. The demurrer was argued in Easter term last, by E. Lawes, for the plaintiff. The question for the Court is, whether commissioners of bankrupts are liable to an action of trespass under the circumstances stated upon this record. The case of Morgan v. Hughes (2 T. R. 225), is decisive that an action on the case does not lie; if, therefore, any action be maintainable, it must be trespass. Now admitting, that, according to the case of Dr. Groenvelt v. Burwell (1 Ld. Kaym. 454), no action lies against a Judge for any thing done by him in his judicial capacity ; still the question to be decided here, is, what makes a Judge? Lord Holt's definition of a Judge is, that he has power to commit for punishment; and he adds, [164] " commissioners of bankrupts may commit a man for refusing to be examined concerning the estate of the bankrupt; but they are not Judges" (a): and in the late case of Brittain v. Kinnaird (1 B. & B. 439), this dictum of Lord Holt was cited with approbation by Park J., who had once been a commissioner of bankrupt. In Ex parte Scarth (15 Ves. 293), the Lord Chancellor held, that commissioners of bankrupts may, under certain circumstances, be compelled to pay costs occasioned by their misconduct, which would be a singular d_ecision if they are Judges. Again, the proceedings of commissioners of bankrupts are traversable. In Dr. Bonham's case (8 Rep. 240), it is said, that " the warrant of commissioners of bankrupts is under the Greal Seal, and by Act of Paaliament; yet, because the party grieved has no other remedy, if the commissioners do not pursue the Act and their commission, he shall traverse that he was not a bankrupt, although the commissioners affirm him to be one." And in Banibridge v. Bates (Sir T. Raym. 337, and Vin. Abr. tit. Creditor and Bankrupt, (C), pi. 2, S. C.), it was held, that, " although the commissioners have sole authority to adjudge a man bankrupt, yet in an action, the jury must find whether he was a bankrupt or no, and not barely by the adjudication of the commissioners." Hence it follows, that if they exceed their jurisdiction, their proceedings are coram non judici, they cease in the particular instance to be protected as commissioners, and are liable to an action of (a) 1 Ld. Raym. 467. 62 DOSWEI/L V. IMPEY lB;fcC.J65. trespass. Terry v. Huntington (Hardr. 480), Gregory's case (5 Mod. 368). In Farr's [165] case (9 Ves. 513), the Lord Chancellor would not interfere to control the discre^ tion of the commissioners, as to the questions which should be put to a bankrupt, observing that they were to determine at the hazard of an action, whether the ques* tions were such as the person is bound to answer; and in Perkin v. Proctor (2 Wils. 382), it is said, that if commissioners of bankrupts exceed their jurisdiction, the law gives a remedy against them. It will perhaps be argued on the other side, that, as commissioners of bankrupts are invested with power to act according to their discretion, they are not liable to an action ; but in Booke's case (5 Rep. 100), it is laid down, that, although commissioners of sewers are to act according to their discretion, yet their proceedings ought to be limited and bound with the rule of reason and law. The same rule is applicable to commissioners of bankrupts. [Holroyd J. Different ideas have prevailed since that time; it was then thought that an action might be maintained against a sheriff for refusing a vote, although without malice; but the contrary has since been held (a)l; it has also been decided, that no action lies against commissioners for raising and paving a street, whereby the plaintiff's premises sustained damage. Governor, &c. of Cast Plate Manufacturers v. Meredith (4 T. R. 794).] It may be admitted, that if there had been a mere formal error iu the commitment, that would not have made the commissioners liable to an action. Bracy's case (Comb. 390). But that was not the case here; the proceeding was substantially wrong; and Miller v. Seare (2 W. Bl. 1141), is expressly in point, to shew that, under such circumstances, the commissioners are liable [166] to be sued in trespass. That case was not decided until it had been argued three times, and must, therefore, be received as a deliberate and well considered judgment; and the same point had not long before been ruled in Dyer v. Missing (2 W. Bl. 1035). [Abbott C.J. It is very singular, that, in the judgment delivered by the Court in Miller v. Seare, you do not find any allusion to the words of the statute, giving the power in...
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