Queen's Bench LUNHAM บ. Judges of said Court, on the said 14th day of November, said M. V. 1863. Court being then open to the public, and there being divers persons therein, and did then and there, pursuant to the provisions of the said Acts, make a deposition upon oath that he verily believed WAKEFIELD. he had a good defence on the merits to the said demand, as by same filed of record in said Court appears. And afterwards such proceedings were had that the said proceedings, so as aforesaid instituted by the defendants against the plaintiff in the said Court of Bankruptcy and Insolvency, have wholly ceased and determined in favour of the plaintiff. And the plaintiff avers that, by being compelled publicly to appear in the said Court of Bankruptcy and Insolvency, and by said several grievances so as aforesaid committed by the defendants, the plaintiff was greatly injured in his credit; and was for several days prevented from attending to his business, and incurred great costs and expenses in and about attending at the said Bankrupt Court, and resisting the said proceedings, and making the said deposition,-to the plaintiff's damage of £1000. To this plaint the defendants demurred, and noted for argument the following points: First; that no action will lie for such wrongs as are alleged in the writ of summons and plaint, inasmuch as all persons having a debt due to them, or claiming a debt to be due to them, by a trader, have a right to take the proceedings complained of, without being liable to be sued for so doing. Secondly; that no action will lie for such wrongs as are alleged in the writ of summons and plaint, without an allegation of legal damage resulting to the plaintiff therefrom; and that there is no sufficient allegation of legal damage so resulting in the writ of summons and plaint. Devitt and C. R. Barry, in support of the demurrer. This action is not maintainable on the construction of the 20 & 21 Vic., c. 60, ss. 105–13, schedules E to K, and the Rules of the Court, 37 to 43. There is no allegation of fraud, so that this case is not ruled by Pim v. Wilson (a). For a proceeding, (a) 2 Phil. Ch. Cas. 653. M. V. 1863. without malice, in a Civil Court of competent jurisdiction, no action Queen's Bench will lie: Savile v. Roberts (a); Purton v. Honnor (b). Of course, LUNHAM v. an action will lie for maliciously having a party sued and made WAKEFIELD. a bankrupt. But that proceeding has the effect of an execution against the man's property; and that case bears no analogy to this, where a man has been merely brought into Court to state whether he owes a debt: Chapman v. Pickersgill (c); Farley v. Danks (d). But neither in these nor in any of the intermediate cases has it ever been decided that an action will lie for a malicious attempt to make a man a bankrupt, when bankruptcy does not in fact result. But, even if such an action would lie, this plaint does not contain a sufficient averment of special damage. Unless an award of costs is shown, extra costs not awarded are not a ground of special damage in law Cotterell v. Jones (e). The 20 & 21 Vic., c. 60, s. 113, enables the Court of Bankruptcy to award costs. There is not any averment that they were awarded, and the defendant is therefore entitled to assume that they were not.-[FITZGERALD, J. The Court of Bankruptcy has a discretionary power to give costs. If it does not give them, is not that a damnification?]-According to the decision in Cotterell v. Jones, it is not a legal damage. The averment of special damage is therefore reduced to the allegation that the plaintiff was greatly injured in his credit. [FITZGERALD, J. The plaint states no instance of injury.]-No; and the Court must take cognizance of the practice of the Bankruptcy Court, which is to enter such cases in the daily lists anonymously.— [FITZGERALD, J. But we must also take cognizance of this practice, that the cases are investigated in public Court.]-But the party can, if he likes, have a Private Sitting under the 20 & 21 Vic., c. 60, s. 354. The non-introduction into Ireland of the provisions of the 12 & 13 Vic., c. 113, s. 86, has left parties simply to their remedy under the 20 & 21 Vic., c. 60, s. 113. Moreover, though the sections of that Act require in terms the party summoned to appear in person in the Bankrupt Court, yet, under the Rules of that Court, personal appearance is not necessary. Counsel (a) 1 Salk. 14. (b) 1 Bos, & P. 205. (e) 11 C. B. 713. also cited Anonymous (a); Reynolds v. Wilson (b); Haddan v. M. V. 1863. Lott (c); Fivaz v. Nicholls (d); Florence v. Jenings (e). Waters and Heron, contra. No doubt a creditor who has a just claim has a right to proceed against his debtor in the Bankrupt Court. But the plaintiff avers here that he did not owe anything to the defendant; who must therefore argue that a man may, though he has not a just claim or any claim, take these proceedings to make a man a bankrupt; and yet that no action for such malicious conduct will lie against him, though an action admittedly lies for a malicious abuse of civil process. A man who has been improperly arrested under a fiat may bring an action for the false arrest.—[FITZGERALD, J. Have you found any instance of maliciously instituting an action for an unfounded debt or claim where an arrest has not been made?]There is a great difference between instituting proceedings in bankruptcy, and a simple attempt to recover a debt. In the former case, even the recovery of costs is not a sufficient redress. Any man brought into the Bankrupt Court, however unjustly, is tainted. But a man's character suffers no injury when an unfounded action is brought against him: to him costs are an entire compensation : besides, a defendant need not appear personally; his defence may be conducted by his attorney and witnesses, while he remains in the country attending to his business. But the summons to the Bankrupt Court resembles a summons to a police-office. The party summoned must appear personally, no matter what the injury to his trade may be, and how remote soever his dwelling may be from Dublin. If he fails to appear in person, that is an act of bankruptcy; and that the damage is great, appears from this, that to say of a trader that he is a bankrupt is actionable.-[FITZGERALD J. I think it is inaccurate to say that a trader who does not appear in person, when summoned to the Bankrupt Court, becomes ipso facto a bankrupt. He does not become a bankrupt unless the summoning (a) 1 Fonbl. Bank. Cas. 134. (c) 15 C. B. 411. (b) 1 Wils. 232. (d) 2 C. B. 501. (e) 2 C. B., N. S. 454. Queen's Bench LUNHAM v. WAKEFIELD. M. V. 1863. creditor proves his debt legally.]-The 20 & 21 Vic., c. 60, s. 108, Queen's Bench makes him a bankrupt [FITZGERALD, J. He is liable to become LUNHAM v. a bankrupt. But, when the summoning creditor sues out a petition WAKEFIELD. in bankruptcy, and comes to establish the act of bankruptcy, he must prove his debt clearly]-The Bankrupt Code is to be applied only to insolvent or to dishonest traders. To take proceedings to make a man a bankrupt is therefore to assert that he is an insolvent or a dishonest trader; in each case a stigma is involved in the accusation. An action undoubtedly lies for maliciously commencing civil process against a man, for the mere purpose of vexing him: 1 Co. Lit., 161 a, note 4; Waterer v. Freeman (a). In Chapman v. Pickersgill the commission of bankruptcy had been superseded; and it was, as this case is, a mere attempt to make a man a bankrupt.—[FITZGERALD, J. In that case I see that the plaintiff was declared a bankrupt.]-Certainly, in Farley v. Danks (b) he was not. In Goslin v. Wilcock (c), Lord Camden said that an action for a malicious arrest lies, “because the costs in the cause are not a "sufficient satisfaction for imprisoning a man unjustly, and putting "him to the difficulty of getting bail for a larger sum than is due.”— [FITZGERALD, J. That was a case in which legal process had been abused.]-And so is the present case. The Bankrupt Act was not meant as an ordinary mode of recovering debts, nor as a remedy when there is any matter in dispute between the parties. Proceedings taken maliciously to force a man to commit an act of bankruptcy give a cause of action: Churchill v. Siggers (d). The case of Savile v. Roberts is better reported in 1 Lord Ray., page 374; which also shows the distinction between an action which is merely unfounded, and one brought for purposes of vexation.— [Counsel also cited Hilliard on Torts, p. 466, and Add. on Wrongs, p. 441.]-Cotterell v. Jones (f) is not an authority against the plaintiff here, because there the principal point in the case was not decided; and, with respect to the costs, there is this distinction, that in Cotterell v. Jones the plaintiff had been entitled to get costs (a) 1 Hob. 205. 266. (e) 11 C. B. 713. (b) 4 Ell. & Bl. 493. (f) 11 C. B. 713. Queen's Bench LUNHAM v. as a matter of course, and the Court presumed that he had sustained M. V. 1863. his injury solely by his own neglect to apply for them. But the present plaintiff was not entitled to get costs as a matter of course. The Judge of the Bankrupt Court has a discretion in the matter; WAKEFIELD. so that negligence cannot be presumed against the plaintiff. Of the other cases cited for the defendant, Haddan v. Lott (a) is the only one which relates to special damage; and the point decided in it was merely that, in that particular case, the special damage averred had not flowed naturally from the acts complained of. Counsel also cited Craig v. Hassell (b); Grainger v. Hill (c) ; Haywood v. Collinge (d); Rolin v. Steward (e); Oldfield v. Dodd (f); Martin v. Lincoln (g); and two unreported cases of Fitzpatrick v. O'Brien and Darcy v. Cahill. Devitt was heard in reply. He cited Shelf. Bank., pp. 158 to 176. FITZGERALD, J. Cur. adv. vult. H. T. 1864. Jan. 12. This case was argued before us on the 7th of December last; and as the question, which arose on a demurrer to the plaint, was of considerable practical importance, we took time to consider the arguments addressed to us, and the numerous authorities to which we were referred.-[See statement.]-The complaint against the defendants is in substance that, there being no debt due to them by the plaintiff, they took the proceedings in question maliciously, and without any reasonable or just foundation; and the plaint contains strong expressions, and imputes very criminal motives; but these allegations are no farther material for the decision of the question now before the Court, save as showing "malice" and "want of probable cause." I may observe, too, that the defendants' proceedings could not have the effect of compelling plaintiff to commit any act of (a) 15 C. B. 411. (e) 4 Bing., N. C. 212. (e) 14 C. B. 595. (g) Buller's N. P. 12. (b) 4 Q. B. 481. (d) 9 Ad. & Ell. 268. VOL. 16. 65 L |