GIBSON v. a man is liable to an action if he sue against his release, or after the debt duly paid. He observed, that the rule with respect to CHATERS. proving malice in actions for malicious prosecutions, did not hold in the case of actions for holding to bail in a mere civil suit, since the rule in the former instance proceeded on the danger of discouraging prosecutions for public offences. But the COURT were of opinion that the facts of this case precluded any inference of malice, and that the plaintiff therefore to entitle himself to recover, ought to have given evidence of actual malice. Best took nothing by his motion. LYON v. WELDON AND OTHERS (1). (2 Bing. 334-340; S. C. 9 Moore, 629; 3 L. J. C. P. 27.) Goods which, with the consent of the owner, come to the possession of a party after he becomes a bankrupt, do not vest in the assignees under 21 Jac. I. c. 19, s. 11 (2); and he becomes a bankrupt on committing the act of bankruptcy, which is followed up by a commission. A party who purchases goods under a distress irregularly conducted, has a sufficient title to maintain trover. TRESPASS for breaking and entering the plaintiff's dwelling-house, and taking away his goods. Pleas first, that the supposed trespasses were done by authority of an Act of Parliament, made in the 13th year of Elizabeth, intituled "An Act touching orders for bankrupts"; second, by authority of an Act of Parliament, made in the first year of James I., intituled "An Act for the better relief of the creditors against such as shall become bankrupts." At the trial before Best, Ch. J., London sittings, after last Term, the case appeared to be as follows. One Abrahams, who had married the plaintiff's daughter, rendered himself to the custody of the marshal of the King's Bench for a debt of 580l. on the 2nd of December, 1823. On the 26th of February, 1824, he was duly declared a bankrupt, for having lain in prison till that time. On the 9th of December, 1823, Nightingale, Abrahams' landlord, distrained for a year's rent, due the Michaelmas preceding. One of the brokers who made the distress having been sworn by a constable, valued the goods, and the plaintiff purchased them under that valuation. He then permitted them to remain on the premises in possession of his daughter, who still continued to reside (1) Followed, The Ruby (1900) 83 L. T. 438, but the point was thought doubtful by learned persons: see Williams on Bankruptcy, 11th ed. 260; the principal case and The Ruby were followed by the 1824. Nov. 19. [334] LYON 27. WELDON. [ *335 ] [ *336 ] there. The plaintiff also thenceforth resided with her, and paid the rent of the premises. On the 26th of February, 1824, the defendants acting under the commission of bankrupt, which had been *issued against Abrahams, seized the goods which the plaintiff had, as above, purchased under Nightingale's distress. Upon these facts, the plaintiff was nonsuited, with leave to move to set aside the nonsuit, and instead thereof enter a verdict for 55l., the value of the goods. Pell, Serjt. accordingly obtained a rule nisi to this effect, and Vaughan and Cross, Serjts. now showed cause : First, the sale under the distress being irregular, the plaintiff never acquired any title to these goods. According to the provisions of 2 W. & M. c. 5, sess. 1, the person who makes the distress is to cause the goods to be appraised by two sworn brokers: here, one of the brokers himself made the distress. But the act of bankruptcy having relation back to the 2nd of December, the first day of the bankrupt's imprisonment, the bankrupt's goods were in truth vested in his assignees before the sale on the 9th; and if it be urged that the landlord had a right to distrain them while on the premises, still, if the purchaser under the distress chose to leave them on the premises, in the possession of the bankrupt's wife, it is the same thing as if they were in the order and disposition of the bankrupt, as apparent owner, at the time of his bankruptcy, in which case they would belong to the assignees, under 21 Jac. I. c. 19, s. 11. By the time of the bankruptcy the statute must mean the whole interval between the act of bankruptcy and suing out the commission, or either of those periods, indifferently. If it were otherwise, assignees would seldom be able to recover goods, on the ground of reputed ownership at the time of the possessor's becoming a bankrupt, for the party might always defeat them, by showing an anterior secret act of bankruptcy, at the time of which the goods *might not have been in his possession. * Pell and Wilde, Serjts., who were to have supported the rule, were stopped by the COURT. BEST, Ch. J.: At the time I nonsuited the plaintiff I had not the statute of James the First before me. If the view I then took of the policy of that statute was correct, the words of the eleventh section will not admit of the construction which I put on it. I am glad, therefore (for I believe the plaintiff's to be an honest case), that I reserved to him a right to move to set aside the nonsuit, and to enter a verdict for the sum in dispute. It is now insisted that we cannot grant this; first, because from the irregularity of the sale under the distress no property in the goods passed to the plaintiff; and, secondly, if the goods were the property of the plaintiff, they became vested in the assignees by the operation of the statute of James. Upon the first point I must observe, that the statute of William to protect persons distrained on from an improvident or corrupt sale of goods, has provided that the person making the distress shall cause the goods to be appraised by two sworn brokers. That person must not appoint himself one of these brokers, for by so doing he defeats the object of the Legislature, which was, that these brokers *should be a check on him. But if such an irregularity made the sale of the goods void, men would be afraid to purchase goods sold under a distress, and thus poor tenants would suffer more than they did from the evil which the statute was intended to remedy. The 11 Geo. II. c. 19, s. 19, has prevented the sale of the goods from being affected by any irregularity of the broker, and enacted, that for any injury that a tenant may sustain from irregularity, he may have his action; this statute has therefore taken away this objection, and the case of Wallace v. King (1) has decided the point. Wherever the person making the distress does make himself one of the sworn brokers, and the goods distrained are sold for less than their value, I think a jury would, by the damages they would give in an action against such person, teach him that the offices of distrainor and sworn broker are incompatible. As to the second point, the facts are extremely complicated. On the second of December, 1823, the bankrupt was the true owner of the goods; on that day he went to prison. By lying in prison he committed an act of bankruptcy which related back to the 2nd of December. From that day he could not part with his interest in the goods, but they were liable to a distress for the rent of the house in which they were kept, and on the 9th of December they were distrained. This distress put an end to the real ownership of the bankrupt. The plaintiff bought the goods under the distress, and permitted them to remain in the possession of the bankrupt's wife and family: from this time they were in the possession, order, and disposition of the bankrupt as the reputed owner. Before the goods were thus in his possession, order, and disposition, his bankruptcy was by relation of law complete. Now the statute of James says: "If any persons, at such time as they shall become *bankrupts, shall by the consent and permission of the true owner have in their possession, order, and disposition, any goods and chattels, whereof they shall be the reputed owners, and take upon themselves the sale, alteration, and disposition as owners, the Commissioners shall have power to sell and dispose of the same." These goods did not (1) 1 H. Bl. 13. LYON v. WELDON. [ *337 ] [ *338 ] LYON v. WELDON. [ *339 ] 66 get back into the possession of the bankrupt until after he had committed an act of bankruptcy, and therefore do not pass to the assignees under this statute. It has been argued that the words, "at the time they shall become bankrupts," are to be construed, “ at the time they shall be declared bankrupts"; but such a construction would create an anomaly in the bankrupt laws. The bankrupt is divested of all right in his estate from the time of the act of bankruptcy, and no debts were, before Sir Samuel Romilly's Act, proveable under his commission but what were contracted before that period. We must consider that he became a bankrupt within the meaning of this clause of the statute of James, at the same time that he becomes a bankrupt under all the other parts of the bankrupt laws. The words of this section are too clear to allow any other construction. I think, on consideration, that this construction is agreeable to the spirit of the Act. The spirit of the Act is, that where people are induced to give credit by seeing a bankrupt in possession of property, that property, whether it be the bankrupt's or another's, shall be applied in payment of the debts proveable under his commission. There can be no other just principle on which one man's debts are to be paid with the property of another. The persons whose debts were proveable under the commission could not have given the bankrupt credit on account of property of which he did not get the possession until after his bankruptcy; for before the statute of Geo. III. no debts were proveable but such as were contracted before the act of bankruptcy. The Legislature, which has extended the right of proving debts, can alone accommodate the law to the now state of things. I am therefore of opinion that the nonsuit must be set aside, and a verdict entered for the plaintiff. PARK, J.: * The chief question in this case arises on the construction of 21 Jac. I. c. 19, and the defendants, in order to succeed, must put an interpretation on the words of the statute which they will not bear. The preamble to the eleventh section is almost decisive of the question, although a construction has been put on that beyond what its language imports; but is there anything in that preamble which applies to the fact now under consideration? Did the bankrupt first convey the goods away and then keep the same? The intention of the Legislature was, to prevent fraudulent transfers for the purpose of deception, and it proceeds to enact, that the Commissioners may dispose of goods, which, with the consent of the true owner, the bankrupt may have in his possession as reputed owner, at such time as he shall become a bankrupt. I dissent from the argument, that the words "at such time as he shall become a bankrupt," may apply either to the date of the commission GASELEE, J.: The only doubt in my mind was, whether the plaintiff acquired a sufficient title by the sale under the distress, considering the way in which it was conducted. But, independently of the stat. 11 Geo. II. c. 19, which has cured any defects occasioned by mere irregularity, it is for the interest of the party distrained on that purchasers under the sale should be protected as far as possible; because if it were otherwise the insecurity of the title would materially affect the price of the goods. However, if any doubt ever existed on the subject, it has been removed by the case of Wallace v. King. On the second point I agree with the rest of the Court. BURROUGH, J., had left the Court, but the CHIEF JUSTICE stated that he concurred in the decision pronounced, which was, that a Verdict be entered for the plaintiff for 55l., the value of ROBINSON v. BROWN AND ANOTHER, EXECUTOR AND (16 L. J. C. P. 46–49; S. C. 3 C. B. 754.) By a joint and several bond, A. and B. became sureties for the pay. ment of any balance, not exceeding a given amount, due from C. The defeasance provided that it should be void if A. and B., or either of them, should pay such balance within one calendar month next after (1) Foll. and applied, Andrews v. Wirral R. D. Council [1916] 1 K. B. 863, 872, 876, 85 L. J. K. B. 853, C. A. LYON v. WELDON. [ 340] 1846. Nov. 10. [ 46 ] |