The Express.
London, England, 1861-01-28 00:00:00

THE EXPRESS, MONDAY EVENING, JANUARY 28, 1861.

COURT OF QUEEN'S BENCH.-JAN. 26.

&tamp i Ileaco.(Bet'ore the Lard Chief Justice, Mr.
Justice Wirtluau, Mr. Justice Crompton, Aud Mr.
Justice H )

DAMIAN AND AM.THEII e. IRETAT..N.
This case, which hen occupied the court during parte of
three days, liaised a most itup.rtant question ea to the con-
struction to be put upon the 112th and 257th sections of
the Bankrupt Lawn lt"nsolithstion Act (Sat. 12 and 13 Viet.,
c. lON. The case comes before the court on a motion for
the diacharrc of the defendant from prism on the ground
of hie illegal detention there.
Mr. S. (;rev appeared io support of the motion ; Mr.
.1. U. Coleridge to oppose it.
The defendant Preenton, who had been an attorney in
wiot respectable practice in the county of Glamrapo, was
adjutheated a bankrupt on the pith of September last,
before the Bristol Bankruptcy Court. The first sitting for
the surrender and examination of the bankrupt wan ap-
pointed for the 2nd of October, mid the soaked for the lith
of November. It appeared that after the examination of
the bankrupt nn the second day bad been taken, the
commissioner, Mr. M. li. Hill, came into court, and having
read over the evidence be came to the conclusion
that with regard to two of the debts charged against Free-
dom they had been incurred by fraud. He thereupon re-
fused to grant the bankrupt any further protection from
arrest ; but at the ewer time, in toustquence of theacemiata
not being in a sufficiently perfect state, he enlarged the
time for completing the examination until Monday, the 3rd
December. The bankrupt being at large on the 29th of
November, the commissioner, on the application of one of
the creditors, granted a sealed certificate under the 112th
section of the act, which set I.lli in the prescribed form that
the bankrupt was without protection, such certificate
having the effect of a judgment in one of the superior
courts. Cleo the certificate thus granted the bankrupt
was arrested on the evening of Saturday, the Ist of Decem-
ber, and subsequently, whilst in prison, a number of detain-
ers at the suit of other credttore, and on certificates
issued by the omunissiener, were lodged against
him. Two questions then arms—first, was the orb
giblet arrest ; and if nut, could the (oak-
rapt
_be held in custody on the detainers subsequently
lodged against him, and wlkilst he was endeavouring to pro.
cure his discharge. Oa behalf of the bankrupt it was urged
that under the 112th section a bankrupt is free from arrest
and impriaoteneet by any creditor in coming to surrender,
sod after such surrender during the time limited for such
surrender, and such further tins as shall be allowed him for
flubbing his examination, and for ouch time after finishing
his examination until his certificate be allowed, or the court
shall from time to time by indorsement upon the summons
of such bankrupt think fit to appoint, provided he was not
in custody at the time of inch surrender. Now, the period
for finishing Freedom's examination had been enlarged from
the 6th November to the 3rd December, and it wan there-
I fore contended that the bankrupt had a statutable protec-
tion against arrest up to Monday, the 3rd. On the other
hand, it was exacted by the 247th 'mike that when the
court shall have refused to great the bankrupt any further
protection, or shall ham refused, or suspended a
bankrupt's certificate, it shall, on the application of the
meioses or nay of the creditors, grant a sealed certificate,
which shall have the effect of a judgment in one of the
sapience warts of Westminster, until the allowance of the
bankrupt's certificate ; end the assignees or the creditors
to wham according to such sealed certificate, the bankrupt
shall be indebted, shall thereupon be entitled to issue and
enforce a writ of execution spinet the body of such bank.
rupt It was argued, therefore, in opposition to the motion,
that the 112th =Won was ovariekku by the Wirth. Last
week, in the eases of " Ocfnrd v. Freemen" and "Ch•pman
v. Preston," the Court of Exchequer held that the bank-
rupt was entitled to his discharge, inasmuch as theca. sa on
which he win arreated on the Ist of December had been
wrongly towed ; adopting the view contended for by the
bankrupt's oonneal, that up to the day appointed for the
completion d his examination, which wag the
led of December, the bankrupt had a statutible
right to protection. In the present case, however,
the demise, at the suit of Anna Main and Henry
Bateman, who are wine merchant, at Stroud,
was lodged en the 14th of January, that is to my, mom
than a math subsequently to the day appoiated for the
adjourned examination ; and the question was whether the
buPt
<=rriZly kept in prison eould be legally
held se • subsequently. Having regard to
the authorities anti more especially to the well-known canes
of "Barrett v. Price," and " Hooper v. law," it would
seem that a distinction has been established between came
where a defendant ham been arrested on a writ bad on the
fats of it—then the wrongful act is the act of the sheriff ;
sod therefore the defendant is entitled to his discharge even
as against detainers perfectly regular and subsequently
loaded—and cases where the writ is perfectly in order on
its raw, bet where it had been wrongly issued in come-
mimeo, for example, of some inegulanty in the judgment
on which it is based, or became of the insufficiency of the
grounds on which it Waned. In the latter ace, although
the original ca. wk. Noy be set amide, yet a defendant may
be held on the sobeequeut detainers. The present case
having been argued, as before observed, at great length,
lb. Justice Wightman, stopping Mr. Colerii2egio:bilthe
middle of hie argument, delivered the written tof
himself and Mr. Justice Crompton and Mr. ustice Bill.
The judgment was to the effect that, although as regarded
the original awed on the let of December, thWr lordships
were inclined to agree with the Court of Exchequer that it
was bed, yet it was not necessary to decide that point, for
whether it was bad or good, they must hold, notwith-
staudiug the great respect which they entertained toward'
the learned barons, that the detention of the bankrupt in
prison on detainers lodged subsequently to the 3rd of I.M.
camber, the day appuinted for the completion of the final
examination, was justified in law, and that he wan not en-
titled to his climbs's.
Rule therefore used.