Fowler against Padget
| Jurisdiction | England & Wales |
| Judgment Date | 08 February 1798 |
| Date | 08 February 1798 |
| Court | Court of the King's Bench |
English Reports Citation: 101 E.R. 1103
IN THE COURT OF KING'S BENCH.
Considered, Robertson v. Liddell, 1808, 9 East, 493. Referred to, Prince, 1875, L. R. 2 C. C. 165. Considered, Mersey Docks and Harbour Board v. Henderson, 1888, 13 App. Cas. 603. Referred to, T. v. Tolson, 1889, 23 Q. B. D. 172.
[509] fowler against padget. Thursday, Feb. 8th, 1798. In order to constitute an act of bankruptcy by a trader in departing from his dwelling-house, it is not alone sufficient that a creditor should be thereby delayed, but the departure must also have been with that intent. The word "or" in the statute of the 1 Jac. 1, c. 15, must be read "and." [8 T. E. 149. 1 Esp. 334. 1 Taunt. 270.] [Considered, Robertson v. Liddell, 1808, 9 East, 493. Referred to, E. v. Prince, 1875, (a) Cowp. 155, 6. (V) Ante*, 4 vol. 57. 1104 POWLES V, FADOET 7 T. R. 510. L. E. 2 C. C. 165. Considered, 'Mersey Docks and Harlwf Board v. Henderson, 1888, 13 App. Cas. 603. Keferred to, JR. v. Tolson, 1889, 23 Q. B. D. 172.] Trespass for breaking and entering the plaintiffs dwelling house at Manchester, and taking and converting his goods. The defendants justified under the bankrupt laws, and the only question was, whether the plaintiff had committed an act of bankruptcy. At the trial before Rooke J. at the last Lancaster Assizes, it appeared that the plaintiff, who was a trader at Manchester, having received intelligence that one Smith in London, who was indebted to him to a large amount, was in a failing condition, left his house early on the 17th April, and went to London for the purpose of arranging his affairs with Smith, and getting security for his demand. That having received of Smith goods of a considerable value and a bill of exchange for 1291. he returned to Manchester after an absence of ten days; during which time, several creditors called at his house at Manchester for payment of their respective debts, which were not satisfied, the bankrupt not having made any provision for them, nor left any person in charge to conduct.his business during his absence. Among these creditors were the holders of several bills, which became due on the day after his departure, and whom he expected to call on him for payment. After his return to Manchester some of his creditors compounded with him and received 10s. in the pound : but a commission of bankrupt was taken out against him by the defendant and his partner. The jury found a verdict for the plaintiff for 271., declaring in answer to a question put to them by the learned Judge, " that they thought the intent of the plaintiff in going to London was laudable; that he had no intent to defraud or delay his creditors; but that delay did actually happen to some creditors." A rule was obtained in the last term calling on the plaintiff to shew cause why the verdict should not be set aside and a new rule had; against which Law, Topping & Bailey, shewed cause. They observed that this was a case where the trader had left his house not with a view to elude or defraud his creditors, but for the purpose of using diligence to secure his property which was in hazard, by which, though some creditors were in fact delayed for a shorter time, yet ultimately his estate was benefited, and their security was bettered. And they contended that if this were to be construed an act of bankruptcy, it would entirely reverse the intent of the Act [510] of the 1 Jae. 1, c. 15, which ought to be regarded in construing the words, otherwise the maxim applies qui heeret in literfi, hoeret in cortice. The departing from the dwelling-house was first made an act of bankruptcy by the 13 Eliz. c. 7; but by the express words of that Act it must have been done "to the intent or purpose to defraud or hinder any of the creditors of their just debts, &c." The 1 Jac. 1, c. 15, after repeating the several acts of bankruptcy declared by the former statute, adds others, which are all premeditated frauds, and then concludes "to the intent or whereby his creditors may be defeated or delayed," &c. Now this variation in the wording was evidently intended to apply to the new acts of bankruptcy, which had been introduced by the Statute of James, all of which are founded in intentional fraud, where the very nature of the act implies a fraudulent intent; whereas all the acts of bankruptcy mentioned in the former statute, amongst others, this of departing from the dwelling-house, are in themselves indifferent acts, and only become criminal when done with an intent to delay or defraud creditors. In order therefore to make the Act of James consistent with...
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...as an `alternative`. The context in which the said word is used justify the court treating it as meaning `and/or`: see Fowler v Padget (1798) 7 TR 509 (101 ER 1103) and Mersey Docks And Harbour Board v Henderson Bros (1888) 13 App Cas 595 (HL) per Lord Halsbury LC.In the premises, having re......
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...Kenyon, CJ, 'that actus non facit reum, nisi mens sit rea. The intent and act must both concur to constitute the crime': Fowler v Padget (1798) 7 TR 509, 514." 25 The leading modern case to this effect is Sweet v Parsley [1970] AC 132, in which the rule was reaffirmed by the House of Lords ......
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