Ex parte William Anthony Freston William Anthony Freston, a Bankrupt
| Jurisdiction | England & Wales |
| Judgment Date | 13 February 1861 |
| Date | 13 February 1861 |
| Court | High Court of Chancery |
English Reports Citation: 45 E.R. 1016
BEFORE THE LORD CHANCELLOR LORD CAMPBELL AND THE LORDS JUSTICES.
[612] Exparte william anthony freston. In the Matter of william anthony freston, a Bankrupt. Before the Lord Chancellor Lord Campbell and the Lorda Justices. 7^6.8,9,13,1861. The final examination of a bankrupt was adjourned from the Gth of November to the 3d of December. On the 29th of November, the Commissioner issued a Ba. certificate under sect. 257 of the Bankrupt Law Consolidation Act, declaring that the bankrupt was not protected from process against his person. By virtue of this certificate, a creditor sued out a z. sa., and on the 1st of December arrested the bankrupt. After the 3d of December, the Commissioner issued another Ba. certificate, and by virtue of it, another creditor sued out a ca. sa. and lodged a detainer against the bankrupt. Held, that the Commissioner had no authority to issue a Ba. certificate, before the expiration of the time allowed to the bankrupt for finishing his examination, the privilege from arrest given by sect. 112 of the Bankrupt Law Consolidation Act. during that period being absolute, and that the arrest on the 1st of December was therefore illegal. Held, further, that while the bankrupt was illegally imprisoned under this arrest, he could not be lawfully detained under the second Ba. certificate, though granted after the 3d of December. This was an application by the bankrupt for his discharge from imprisonment, on the ground that his original arrest was illegal, having boon made while he was entitled to protection under the provisions of the Bankrupt Law Consolidation Act. On the 15th of September 1859 a petition for adjudication was presented against William Anthony Preston in the Court of Bankruptcy for bhe f'ri-stol District, and on the 17th he was adjudged bankrupt, not being in custody at the time. On the same SBEG.Fr&J.ffl3. EX PARTS FRESTON 1017 day he surrendered to the bankruptcy. On the 2d of October the first meeting under the bankruptcy was held and assignees chosen. On the 6th of November the second meeting was held, at which the examination of the bankrupt was proceeded with, and adjourned till the 3d of December. 613] The bankrupt filed his balance-sheet on the 29th of November. On the 1st of December the bankrupt was arrested by the officers of the Sheriff of Middlesex under a writ of ca. sa. issued out of the Court of Exchequer at the suit of J. V. Ockford, upon a certificate granted by the Commissioners on the 29th of November, at the instance of Ockford, as a creditor, under the 257th section of the Bankrupt Law Consolidation Act. The bankrupt, on the 3d of December, caused a summons to be served on Ockford, to shew cause why the bankrupt should not be discharged out of custody. The case was argued before Baron Martin on the following day and adjourned to the 7th, when his Lordship referred the matter to the Court of Exchequer. While the bankrupt was in custody a detainer was lodged against him on a ca. sa., which had been issued out of the Exchequer at the suit of Joseph Chapman, upon a certificate granted by the Commissioners on the 3d of December. On the llth of January the bankrupt obtained a rule to shew cause why Ockford's ca. sa. should riot be set aside and the bankrupt discharged, and also a similar rule as regarded Chapman. On the 15th of January an order made by Mr. Justice Wightman to charge the bankrupt in execution at the suit of A. M. Bateman and H. Batemau for certain moneys, was lodged with the keeper of the Queen's prison, in whose custody the bankrupt then was. This order was obtained on a certificate granted by the Commissioner shortly before the 15th of January, and long [614] after the time to which the bankrupt's examination had been adjourned. On the 17th of January the rules obtained by the bankrupt came on to be argued in the Court of Exchequer. The Court set aside Ockford's ea. sa., and ordered that the bankrupt should be discharged from custodj' under it and under Chapman's detainer (Ockford v. Freston, 6 H. & N. 466). On the 21st of January an application to the Court of Queen's Bench to discharge the bankrupt from custody under Bateman's detainer came on to be heard, and on the 26th was refused (Batenmn v. Freston, 9 W. Rep. 311). On the 30th of January the bankrupt moved before the Lord Chancellor for a writ of habeas corpus to bring him up, that he might be discharged out of custody, and the writ was granted. On the 8th of February the bankrupt was brought up under the writ, and applied for his discharge. Mr. Gray, in support of the application. The first proposition I have to support is, that the original arrest was illegal. By the old Bankrupt Act, 5 Geo. 2, c. 30, s. 5, the bankrupt was protected up to the last adjourned examination. The question arose whether this statute gave protection when the examination was adjourned sine die, and it was decided that it did not; Ex parte J foods (1 G-l. ife J. 7.r ). The provisions of 6 Geo. 4, c. 16, ss. 117, 118, are not materially different, and Ex parte Leigh (1 Gl. & J. 264) is in point, as shewing that the statute itself, and not the indorsement of the petition, [615] gives protection until the adjourned examination. The case now depends on the provisions of the Bankrupt Law Consolidation Act, 12 & 13 Viet. c. 106, ss. 105, 112, 113. Ex parte Leigh (1 Gl. & J. 264); Price's case (3 Ves. & B. 23); Ex parte Woods (I Gl. & J. 75), and e Dalian (1 Ball. & B. 130), all shew that the bankrupt was entitled to protection, arid that this was not a good arrest. Secondly, I contend that, if the original arrest was not good, the bankrupt cannot lawfully be kept in custody under the subsequent detainers. It was said in the Queen's Bench, that the illegality of the arrest lay with the judgment creditors, not with the sheriff', for that the writ was good on the face of it; and...
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