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1812,

LO

execution cre

stat. 49 G. 3. c. 121. that

RANKIn and Others, Assignees of Miller, against

Wednesday,

June 17th, Horner, Sheriff of SOMERSETSHIRE, and LAUDAY. ORD ELLENBOROUGH, C. J. now delivered the opi- In trover by

the assignees of nion of the Court in this case, which had been a bankrupt,

against the argued on a former day of this term by Pell, Serjt. and sheriff and an Giffard, against the rule; and by Lens, Serjt. and Jekyll, ditor, where in support of it. The facts and point of the case, with the defendants the arguments and authorities cited, appear by the judg- tice under the ment. This came on upon a rule to shew cause for a new they intended

to dispute the trial in an action of trover against the late sheriff of petitioning creSomersetshire and an execution creditor, and the only proof by the question was whether the bankruptcy of Miller, the sup- one of the de. posed bankrupt, was sufficiently established. The plain- fendants, the tiffs had had notice, under the stat. 49 Geo. 3. c. 121., that ditor, had the defendants intended to dispute the petitioning cre- under the com

proved his debt ditor's debt; but instead of producing the ordinary proof mission is no

proof of the of the trading and act of bankruptcy, they contented petitioning

creditor's debt, themselves with proving that the defendant Lauday, the either against

the sberiff or execution creditor, had proved a debt under the com

such execution mission; and this, they insisted, was sufficient primâ creditor. facie evidence against both the defendants, that there was such a debt as would support the commission. The Court expressed its opinion upon the argument, that however this evidence might affect the defendant Lauday, who had proved his debt, it was no evidence whatever against the sheriff, Horner: and we are of opinion, upon consideration, that it is not evidence against the other defendant Lauday. When a commission issues, the creditor,

who

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1812.

who sues it out, is to be prepared at his peril with evi

dence to support it: the commissioners are not to declare RANKIN and Others the party a bankrupt unless there be satisfactory proof against

that he is so; and when they have so declared him, creHORNER and Another. ditors are to come in, under the peril of being barred by

a certificate, to prove their debts. The creditors have not the means of knowing what was the evidence upon which the party was declared a bankrupt; they had no right to be present when that evidence was given; they have no right to look at the proceedings under the commission in order to see what that evidence was: and is it reasonable that they should be put to the dilemma of being barred by a certificate, or of being taken to have admitted that every act necessary to support the commission really existed, when they had not the means of judging whether such acts existed or not, and of having such their supposed admission received as evidence against them in every case in which the question could arise? The certificate, when obtained, is conclusive evidence of every fact necessary to support the commission; so that they would be conclusively barred of their debt in case of a certificate, if they did not prove it under the commission; and it should seem to require some strong authority to establish that, by proving, they had admitted facts, respecting the existence of which they had no means of inquiring. By proving a debt, the party at most only gives credit to the petitioning creditor, and to the commissioners, that the former has not sued out the commission, nor the latter declared the party bankrupt, without proper grounds. The petitioning creditor and the commissioners hold out to the world that there are such grounds; and the party who proves his debt cannot in reason be considered as admitting more than that he

knows

and Others

HORNER

knows nothing at the time to the contrary. It is to be 1812 considered indeed, before the proof of a debt is to be

RANKIN taken as an admission by a creditor of every thing neces

against sary to sustain the commission, how a creditor, as such, is capable of disputing a commission. The only step he and Another. can take is by petition to the great seal to supersede the commission: and is a creditor to be driven to the expenseof such a step? If the proof be primâ facie evidence, how is it to be rebutted ? How is the negative, that there was no petitioning creditor's debt, no trading, no act of bankruptcy to be established ? The only cases cited for the plaintiffs were Maltby v. Christie, 1 Esp. N. P. Cas. 340., and Walker v. Burnell, Dougl. 303., and 3 Term Rep. 321. The former was an action by the assignees of Durouveray to recover from the defendant the price of some glasses which the defendant had received from Durouveray to sell, and which he had sold after his bankruptcy; and the defendant having described the goods in his catalogue as the property of Durouveray, a bankrupt.Lord Kenyon held this to be evidence against the defendant that Durouveray was a bankrupt, and precluded the defendant from disputing it. This therefore was an express declaration by the defendant, that Durouveray was a bankrupt, and imported that the defendant was acting under his assignees; inasmuch as his bankruptcy would have countermanded any authority Durouveray himself might have given for the sale. In Walker v. Burnell, Lord Mansfield certainly is reported to have said that “he

thought that as the plaintiffs had proved a debt under “ the commission, they could not question its validity, “ though they might at the time of the act of bankruptcy;" or, according to 3 Term Rep. 322., “proving a debt “ under the second commission estopped them from litiVol. XVI.

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1812.

RANKIN and Others

against HORNER and Another,

“gating the regularity of the proceedings under it." But the jury found for the plaintiff, against whom this evidence was to have operated, and the Court refused to grant a new trial ; so that the point did not ultimately become material. This dictum however goes beyond what it is now contended for; for if, after proving a debt, the plaintiffs could not have questioned the validity of the commission, the proof would have been, not merely primi facie, but conclusive evidence; and as the other Judges did not notice the point ; as it does not appear to have been discussed; as it was not decided; as no instance appears in which it has since been acted upon; and as, upon the grounds already stated, it would be unreasonable to bind the creditor by such proof, and it is difficult to see how he could resist it, if it were admitted as primâ facie evidence; we are of opinion that the proof in this case ought to have been received, as proof of the validity of the commission, and that the rule for a nonsuit should be therefore made absolute.

THE

IT'ednesday,

The King against DewSNAP and Another.
June 17th.
Persons dwel.

HE defendants were indicted for a nusance in the ling near to a steam-engine, town of Sheffield, in unlawfully and injuriously erectwhich emitted volunies of ing near the dwelling-houses of several liege subjects, smoke, affecting their breath,

and also near divers streets and common highways, a eyes, clothes, steam-engine with a furnace for the burning of coals, &c. furniture, and dwelling and burning coals, &c. therein, whereby divers noisome houses, and prosecuting an

and unwholesome smokes and smells from thence arose, indictment for

so that the air was greatly corrupted and infected, to it, are parties grieved, en. titled to have their costs taxed under the stat. W. & M.c. 11. s. 3., upon removal of the indictment by certiorari from the sessions into this court by the defendants, and their subsequent conviction,

the

1812.

The King

against DEWSNAP and Another.

the great damage and common nusance of all the king's subjects not only near the same place inhabiting and residing, but also through the said highways and streets passing, &c. After plea of not guilty, the indictment was removed by certiorari at the instance of the defendants, and tried at the assizes, where they were found guilty; and the Master taxed costs for the parties grieved, who had prosecuted the indictment, under the statute 5 W. & M. c. 11. s. 3.

Whereupon Scarlett obtained a rule for setting aside the side-bar rule for the taxation of the costs to the parties grieved, upon the ground that the prosecutors of the indictment, whose names were indorsed upon it as witnesses, were not parties grieved within the meaning of the statute, which did not relate to general grievances, as this was to all the king's subjects inhabiting near or passing by.

Park, and Clayton, Serjt. opposed the rule, and referred to the affidavits of several of the prosecutors and witnesses, one of whom swore that the steam-engine was erected within 50 yards of his dwelling-house in Sheffield, and when working it emitted great volumes of sulphurous smoke which annoyed him very much in his house; and when he approached nearer to it, as he had occasion to do at times, it affected his breathing and oppressed his breast. Another, whose house was 32 yards from the nusance, swore that when the wind blew in a. certain direction the smoke of the engine was very offensive to him and his family, and at times he could scarcely see any thing for it, and could not venture to leave his doors or windows open. That it deposited great

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quantities

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