1812. RANKIN and Others, Assignees of MILLER, against DAY. Lo ORD ELLENBOROUGH, C. J. now delivered the opinion of the Court in this case, which had been argued on a former day of this term by Pell, Serjt. and Giffard, against the rule; and by Lens, Serjt. and Jekyll, in support of it. The facts and point of the case, with the arguments and authorities cited, appear by the judg ment. This came on upon a rule to shew cause for a new trial in an action of trover against the late sheriff of Somersetshire and an execution creditor, and the only question was whether the bankruptcy of Miller, the supposed bankrupt, was sufficiently established. The plaintiffs had had notice, under the stat. 49 Geo. 3. c. 121., that the defendants intended to dispute the petitioning creditor's debt; but instead of producing the ordinary proof of the trading and act of bankruptcy, they contented themselves with proving that the defendant Lauday, the execution creditor, had proved a debt under the commission; and this, they insisted, was sufficient primâ 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 1812. RANKIN and Others against HORNER and Another. who sues it out, is to be prepared at his peril with evidence to support it: the commissioners are not to declare the party a bankrupt unless there be satisfactory proof that he is so; and when they have so declared him, creditors 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 1812. RANKIN and Others against HORNER knows nothing at the time to the contrary. It is to be claration by the defendant, that Durouveray was a bank- 66 1812. RANKIN and Others against HORNER and Another. 66 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 primá 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. Wednesday, June 17th. Persons dwelling near to a steam-engine, which emitted volumes of smoke, affect ing their breath, eyes, clothes, furniture, and dwellinghouses, and prosecuting an indictment for it, are parties grieved, en The KING against DEWSNAP and Another. TH HE defendants were indicted for a nusance in the town of Sheffield, in unlawfully and injuriously erecting near the dwelling-houses of several liege subjects, and also near divers streets and common highways, a steam-engine with a furnace for the burning of coals, &c. and burning coals, &c. therein, whereby divers noisome and unwholesome smokes and smells from thence arose, so that the air was greatly corrupted and infected, to 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 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 quantities o 2 1812. The KING against DEWSNAP and Another. |