Ockford v Freston Chapman v Freston
| Jurisdiction | England & Wales |
| Judgment Date | 18 January 1861 |
| Date | 18 January 1861 |
| Court | Exchequer |
English Reports Citation: 158 E.R. 192
IN THE COURT OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 30 L. J. Ex 89, 9 W. R. 315
[466] ookford v frestux chapman v, freston Jan. 18, 1861-F having been adjudicated bankrupt and having surrendered, the 6th of November was appointed for his last examination. At this meeting his examination was proceeded with, and the meeting was adjourned to the 3rd of December. The bankrupt was not imprisoned or m custody at the date of the adjudication On the 1st of December he was arrested under a wnt of ea sa issued out of this Court, founded upon a certificate granted by a Conmiissionei, under the 257th section of the Bankrupt Law Consolidation Act, 1849. Held, that he was protected from anest by the 112th section of that Act, and the Court therefore dis-chaiged hiru.-A bankrupt airested undei a wnt of ca sa , when privileged from arrest under the 112th section, is entitled to be discharged from custody, and cannot be detained under a writ of ca. sa lodged with the sheiiff after the period of protection has expired. Dubitante Martin, B, [S C. 30 L. J Ex 89, 9 W E. 315 J Gray, in this term, had obtained rules, calling on the plaintiffs to shew cause why the writs of ca sa. issued in these causes should not be set aside, and the defendant discharged out of custody. Oclfoid v. Frtbtwi From the affidavits on which the rule was granted, it appeared that on the 15th of September 1860 a petition for adjudication of bankruptcy was presented, in the Bristol district of the Court of Bankruptcy, against H Freston, under which he was duly adjudicated a bankrupt on the 17th September. On the same d.iy Freston surrendered. On the 2nd of October the first meeting under the bankruptcy was duly holden, aud assignees were chosen therein. The second meeting was held on the 6th of November, when the bankrupt's examination was proceeded with, and the meeting was adjourned until the 3rd of December, and the bankrupt was allowed until that day for finishing his examination On the 1st of December the bankrupt was arrested, by the officer of the sheriff of Middlesex, under a ca. sa. issued in this action at the suit of the plaintiff. The bankrupt was not in prison or in custody at the date of the adjudication The writ was founded on a certificate granted by the Commissioner under [467] the 257th section (a) of the Bankrupt Law Consolidation Act-, 1849, on the 29th of November. Coleridge shewed cause (Jan. 17) The question is whether, the meeting for finishing the bankrupt's examination having been adjourned from the 6th of November to the 3rd of December, the certificate rightly issued in the interval [Wilde, B. You would admit that the certificate under the 257th section cannot be granted until after the Court had refused to grant any further piotection. Martin, P. What power has the Court to grant protection from arrest before the bankrupt has finished (a) Which enacts, that " every creditor of any bankrupt, immediately after the proof of his debt shall have been admitted, shall be deemed a judgment creditor of such bankrupt to the extent of such proof, and the Court, when it shall have refused to grant the bankrupt any furthei protection, or shall have refused 01 suspended hia certificate, shall on the application of such assignees, or of any such creditor, grant a certificate, under the seal of the Court, in the form contained in Schedule B to this Act annexed, and every such certificate shall have the effect of a judgment entered up in one of her Majesty's superior Courts of common law at Westminster until the allowance of the certificate of conformity of such bankrupt, and the creditor to whom, according to such certificate, the bankiupt shall be indebted as therein mentioned, shall be thereupon entitled to issue and enforce a writ of execution against the body of such bankrupt; and the production of any such certificate to the proper officer of any such superior Court shall be sufficient authority to him to issue and seal such writ/' &e. IH.&K. 44S. CSAPMAN V. f RfiSTON 193 his examination, except under the 162nd section 1] The 112th section enacts "That if the bankrupt be not in prison or custody at the date of the adjudication he shall be free from arrest or imprisonment by any creditor in coming to surrender, and after sucb surrender, during the time by this Act limited for such surrender, and for such further time as shall be allowed him for finishing his examination, and for such time after finishing his examination until his certificate be allowed as the Couit shall from time to time by indorse-[468]-ment upon the summons of such bankrupt think fit to appoint" It may fairly be contended that the time allowed to the bankrupt "for finishing his examination " was on the 6th of November, though there was an adjournment of the meeting The words " as the Court shall from time to time by indorsement upon the summons of such bankrupt think fit to appoint," must be construed as ovejrriding the whole clause, and giving to the Court a salutary power of withdrawing protection, [Wilde, B. The Court should hear all that the bankrupt has to say, and not punish him first and then again examine him. Martin, B. It would appear that tha H2th section gives the bankrupt absolute protection when the last examination is adjourned to a day certain. The 162nd section provides that in cases where the adjournment is sine die the bankrupt shall be free from arrest for such time (if any) as the Court shall, by indorsement on the summons of the bankrupt, think fit to appoint. Wilde, B. If the argument for the plaintiff were well founded the 162nd seotion would be unnecessary.] By the 256th section it is enacted, that if, at any sittisg appointed for the last examination of any bankrupt, or at any adjournment thereof, it shall appear to the Court that the bankrupt committed any of the offences thereinafter enumerated, the Court shall refuse to grant the bankrupt any protection from arrest, [Channell, B. That is at the sitting appointed for his last examination, or at any adjournment thereof, when he does finish his examination.] In sections 160 and 162, the...
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Ex parte William Anthony Freston William Anthony Freston, a Bankrupt
...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......