arrest and imprisonment by any creditor in coming to surrender, and after such surrender during all the time limited for it, and for such further term as shall be allowed him for finishing his examination, and for such further time after finishing his examination, until his certificate be allowed, as the Court shall by indorsement upon the summons think fit to appoint.

One question submitted to us was, whether the plaintiff was free from arrest and imprisonment for poor rates at all; and it was alleged with great confidence that there was nothing in the statute to prevent his arrest for the poor rate which became due on the 31st of January, 1857, after his bankruptcy, and that for this rate, at all events, the plaintiff was liable to be arrested. The 162nd section in this Act corresponds with the section in the old Bankrupt Act (6 Geo. 4, c. 16, s. 118,) which followed the one similar to the 112th, in the old Act. It enacts, that at the last examination it should be lawful for the Court to adjourn that examination sine die, and in such case the bankrupt shall be free from arrest or imprisonment for such time as the Court should by indorsement on the summons of the bankrupt think fit to appoint. Looking at the two sections, we think that, to say the very least, there is very great doubt whether the Court of Bankruptcy or a Commissioner had power to protect from arrest in respect of this rate. The rate was not proveable under the bankruptcy at all. If the bankrupt be free from arrest in regard to it, we can see no reason why he should not be free from arrest as to all debts contracted between the bankruptcy and the certificate, and our opinion in the case of Grace v. Bishop (a) was that a bankrupt was not so free. Now, Lord Campbell, C. J., draws no distinction between this rate and the two others, and for this reason we think (a) 11 Exch. 424,

1858.

PHILLIPS

v.

NAYLOR.

1858.

Feb. 9.

The plaintiff, a bankrupt, who had ob

tained an order

for protection

examination,

under the

112th section of the Bank

rupt Law Consolidation Act,

THE

PHILLIPS v. NAYLOR, MOODY and Others.

HE first count of the declaration stated that at the time of the grievances, &c., the defendants, Naylor and others, were overseers, and the defendant Moody assistant overseer, to complete his of the parish of St. Andrew the Less, in the borough of Cambridge: that the plaintiff had been adjudged a bankrupt, &c., and at the date of the adjudication was not in prison or custody, and after the adjudication had surrendered, &c., but had not finished his last examination, according to the Act, during the time limited for such surrender; that such further time had been allowed him for finishing his examination, as by a certain indorsement on the summons of the plaintiff as such bankrupt, the Court of Bankruptcy had thought fit to appoint; whereby the plaintiff obtained from the said Court freedom and protection from arrest, pursuant to the overseers of the practice in bankruptcy, during such further time, and poor, during

1849, at the time of his bankruptcy owed two poor

rates, and had been assessed to a third, but such third rate was not al

lowed or pub. lished until after his bank

ruptcy. The

defendants,

the continuance

of such protection, summoned the plaintiff for the nonpayment of the three rates. The plaintiff did not attend before the justices. It did not appear what took place at the hearing, but it was shewn that the plaintiff had returned the summons served on him to one of the defendants, who was the assistant overseer, with the facts respecting his protection written upon it. The justices issued a distress warrant for the three rates, which proving ineffectual, a warrant of commitment issued upon which the plaintiff was taken, carried to prison and kept there during the period of protection granted to him.

Semble, that under such circumstances no action could be maintained by the plaintiff against the defendants.

But Held: First, that there was no absence of reasonable and probable cause for supposing that the Court of Bankruptcy had not power to protect the plaintiff from arrest in respect of the rates made before, but not allowed till after the bankruptcy.

Secondly, that there was no absence of reasonable and probable cause for supposing that the protection granted to the plaintiff did not avail against the warrant for arrears of all the rates. Thirdly, that in the absence of any evidence that the defendants had concealed anything or done anything but speak the whole truth before the justices, there was no evidence of malice. Fourthly, that trespass would not lie against the defendants for causing the plaintiff to be arrested under the warrant.

Held, also, that the remedy given by the 113th section does not affect the right of action of a bankrupt wrongfully arrested in violation of the privilege given by the 112th section.

Semble, that the protection under the 112th section does not extend to a warrant of commitment for nonpayment of poor rates made before but not published or allowed by the justices till after the bankruptcy.

Quare, whether bankruptcy, before certificate, has any operation upon a demand for poor rates.

which was still unexpired at the time of the grievances, &c., of which the defendants had notice. Averments. -That while the plaintiff was such bankrupt, &c., and while the adjudication was in force, and while the plaintiff was free from arrest pursuant to the said Act by any creditors, the defendants wrongfully, maliciously and without any reasonable or probable cause, caused to be made and obtained from T. B. and C. B., Esquires, two of her Majesty's justices of the peace, &c., having lawful authority, &c., a certain warrant of commitment under the hands and seals, &c., addressed to the overseers, &c., whereby the said overseers, &c., were commanded to take the plaintiff and him safely convey to the borough gaol of Cambridge, and there deliver him to the keeper, &c., and the keeper was thereby commanded to receive the plaintiff, and to imprison him unless the sum of 17. 16s. 6d. and the sum of 17. 16s. 7d., and the sum of 17. 16s. 6d., making together a sum of 51. 9s. 7d., and certain sums for costs, &c., making together 6l. 5s. 7d., should be sooner paid to the said keeper, and that the said sums of 17. 16s. 6d., 17. 16s. 7d., and 17. 16s. 6d. were sums which before and at the time of the said adjudication the plaintiff had been rated and assessed, by rates and assessments for the relief of the poor of the parish of St. Andrew the Less, therefore duly made, allowed and presented, dated respectively the 21st day of July 1856, the 17th of November 1856, and 22nd of January 1857, which at the time of the grievances were in arrear and due from the plaintiff to the defendants Naylor and others, as overseers, before and at the time of the adjudication; and that the defendants before and at the time of the adjudication and at the time of the making and obtaining and of the executing the said warrant of commitment, were creditors of the plaintiff within the meaning of the Act, and entitled to prove under the bankruptcy, and to receive

1858.

PHILLIPS

v.

NAYLOR.

1858.

PHILLIPS

v.

NAYLOR.

left for payment in ten days or legal proceedings would be taken to enforce them. On the 13th of February Moody applied to the justices and obtained a summons in the usual form, requiring the plaintiff to appear before them for the non-payment of the rates. The plaintiff wrote upon the summons that his goods were under the protection of the Court of Bankruptcy, and the rates would be paid out of the estate, and left it at Moody's house. He did not appear before the justices, and they granted the usual distress warrant. To this a return was made of nulla bona, and thereupon, on the 16th of March, a warrant was issued by the justices, commanding the constable to arrest the plaintiff and commit him to gaol, to be kept for one month, unless the rates and expences were sooner paid. All the proceedings were in due form and as prescribed by the act of parliament. On the 19th of March the constable arrested him, and he produced his protection; he was then released. On the 23rd of March he was arrested again by the constable. We think it must be taken that this was done by the direction of the defendants, against whom the verdict passed. He was kept in custody until the 7th of April, when he was discharged by the order of a Commissioner of bankrupts. Lord Campbell, C. J., was of opinion that the defendants acted without reasonable cause, and the jury found that they acted maliciously, and a verdict was found for the plaintiff for 801. damages. Leave was reserved to the defendants to enter a verdict for them on both counts, and the plaintiff was to have leave to sustain the verdict on either count. A rule to enter the verdict for the defendants, and also for a new trial, was granted, and cause has been shewn against it.

The 112th section enacts, that if a bankrupt be not in prison (which the plaintiff was not) he shall be free from

arrest and imprisonment by any creditor in coming to surrender, and after such surrender during all the time limited for it, and for such further term as shall be allowed him for finishing his examination, and for such further time after finishing his examination, until his certificate be allowed, as the Court shall by indorsement upon the summons think fit to appoint.

One question submitted to us was, whether the plaintiff was free from arrest and imprisonment for poor rates at all; and it was alleged with great confidence that there was nothing in the statute to prevent his arrest for the poor rate which became due on the 31st of January, 1857, after his bankruptcy, and that for this rate, at all events, the plaintiff was liable to be arrested. The 162nd section in this Act corresponds with the section in the old Bankrupt Act (6 Geo. 4, c. 16, s. 118,) which followed the one similar to the 112th, in the old Act. It enacts, that at the last examination it should be lawful for the Court to adjourn that examination sine die, and in such case the bankrupt shall be free from arrest or imprisonment for such time as the Court should by indorsement on the summons of the bankrupt think fit to appoint. Looking at the two sections, we think that, to say the very least, there is very great doubt whether the Court of Bankruptcy or a Commissioner had power to protect from arrest in respect of this rate. The rate was not proveable under the bankruptcy at all. If the bankrupt be free from arrest in regard to it, we can see no reason why he should not be free from arrest as to all debts contracted between the bankruptcy and the certificate, and our opinion in the case of Grace v. Bishop (a) was that a bankrupt was not so free. Now, Lord Campbell, C. J., draws no distinction between this rate and the two others, and for this reason we think (a) 11 Exch. 424.

1858.

PHILLIPS

v.

NAYLOR.