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overseers to refund ought to have been made to the same court of quarter sessions which ordered the rate to be reduced. The stat. 41 G. 3, c. 23, s. 8, enacts, "that if on the hearing of any appeal from any rate for the relief of the poor, the court of general or quarter sessions shall order the sum rated on any person to be decreased or lowered; and it shall be made appear to the said court that such person has, previously to the hearing of such appeal, paid any sum of money in consequence of such rate which he ought not to have paid or been charged with, then and in every such case the said court shall order such sum to be repaid and returned to the person having paid the same, together with all reasonable costs occasioned by such person having paid or been required to pay the same." It is manifest from the words said court, and "on the hearing of any appeal," that the legislature intended the application for an order of repayment to be made to the same court of general or quarter sessions which ordered the sums assessed on any person to be lowered. The power given by the statute is not an original power, but annexed to the appellate jurisdiction, like the authority to award costs. Here it ceased with the April sessions.

Sir James Scarlett and Wightman contrà. The statute ought to receive a liberal construction; and so construing it, the words said court signify the sessions generally, and not the justices who compose any specific court of general or quarter sessions. It was impossible here to apply for the order to the justices who heard the appeal, for they had ceased to constitute a court of quarter sessions before it had been ascertained by the decision of the Court of the King's bench that the sums paid were not due.

DENMAN, C. J. The motion ought to have been made either to the court of quarter sessions which heard the appeal, or to the court which ordered the sums rated on the company to be decreased or lowered. The application here was too late.

LITTLEDALE, J. concurred.

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TAUNTON, J. The court of quarter sessions had no power to order money improperly paid to overseers to be refunded until this statute gave it them; and the statute limits the power to the court of sessions which heard the appeal, or at least to the court which orders the sums rated on any person to be lowered. No application was made in this case to either the one or the other. PATTESON, J. concurred.

Rule discharged.

The KING v. E. O. JONES and others. Nov. 25.

Indictment, after stating that a commission of bankrupt had issued against A. by virtue of which the commissioners adjudged him to be a bankrupt, charged that he and other defendants conspired to conceal a part of his personal estate: Held, that even since the stat. 6 G. 4, c. 16, s. 112, such an indictment is defective for not shewing that the party had actually become bankrupt.

INDICTMENT stated that "on, &c. (1828) at, &c. a commission of bankrupt founded on the statute made and then in force concerning bankrupts, was duly awarded and issued against E. O. Jones, directed to the commissioners therein named, thereby giving them authority to proceed according to the statute with the body of the said E. O. Jones, as also all his lands which he had in his own right before he became bankrupt, &c. by virtue of which said commission, the commissioners found that the said Jones did become a bankrupt within the true intent of the said statute before the suing forth of the said commission, and did adjudge him to be a bankrupt accordingly." It then charged that all the defendants, contriving and intending to cheat the creditors of Jones on, &c. at, &c. unlawfully did conspire to conceal and *embezzle a great part of the personal estate of Jones so then having been declared and adjudged a

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bankrupt, that is to say, twenty-two Bank of England notes for 1007. each, and in pursuance of such conspiracy, Jones did deliver to E. T., (one of the defendants,) and E. T. did, in pursuance of the said conspiracy, receive and have from Jones the said several bank notes of him Jones so then declared bankrupt, to the intent that the same might be removed, concealed, and embezzled. Plea, not guilty. The defendants having been convicted at the Bristol Summer assizes 1831, a rule nisi was obtained for arresting the judgment, on the ground that the indictment was defective in not stating the petitioning creditor's debt, the trading, and the act of bankruptcy.

Merewether Serjt. now shewed cause. It must be conceded that so long as the 5 G. 2, c. 30, was in force, an indictment against a bankrupt for removing or concealing his goods must have stated a petitioning creditor's debt, a trading, and an act of bankruptcy. But that statute (by sect. 1,) made it felony in any person who had become a bankrupt, and against whom a commission had issued, to conceal any part of his personal estate to the value of 207. This is repealed by 6 G. 4, c. 16, which by sect. 112, makes it felony if any person against whom a commission has been issued, and who has been thereupon declared bankrupt, shall not surrender himself, &c.; or if any such bankrupt shall remove, conceal, or embezzle any part of his estate to the value of 107. It is sufficient, therefore, since the latter statute, for an indictment to allege the issuing of the commission, and the adjudication that the party was a bankrupt. [PARKE, J. *347] According to your argument, if a commission issued against a person who was not a trader or not indebted, he would be liable to be transported for seven years if he did not surrender and discover his estate, as required by the statute. The words "such bankrupt" in sect. 112, mean a person not merely declared a bankrupt by the commissioners, but a person liable to be so declared.] The legislature had in view the enactments of the 5 G. 2, c. 30, when they passed the 6 G. 4, c. 16, for the former act is recited in the preamble. But, independently of this point, the indictment is good, because it charges that the defendants conspired to do an unlawful act. [PARKE, J. The concealment of Jones's goods was not an unlawful act, unless he had duly become bankrupt.] Bompas, Serjt. and Crowder contrà. The Court, in construing an indictment, will not infer that the words therein used constitute a crime if they will bear any other construction. Now it is consistent with the allegations of this indictment, that Jones may have been illegally, and without jurisdiction, declared bankrupt; and if so, he had a right to conceal his own goods. The words of sect. 112, "if any such bankrupt shall remove, conceal, or embezzle," &c. refer to the section which describes the persons against whom a commission may issue, and sect. 12 authorizes the Lord Chancellor to issue a commission, on a petition made to him in writing against any trader having committed an act of bankruptcy, by any creditor of such trader. A commission, therefore, can only be lawfully issued upon the petition of a creditor against a trader who has committed an act of bankruptcy. Sect. 31, provides, that when an action is brought against any person appointed by the commissioners for any thing *348] *done in obedience to their warrant, there must be a previous demand of a perusal and copy of such warrant, and a refusal to give the same for six days after such demand; and if after such demand, and compliance therewith, any action be brought against the person so appointed without making the petitioning creditor defendant, the jury, on production of the warrant, shall give their verdict for the defendant, notwithstanding any defect of jurisdiction in the commissioners. The statute, therefore, contemplates a case where the commission issued in due form might, nevertheless, be invalid, and give no title. to the parties acting under it. If, according to the argument urged on the other side, the words "any such bankrupt" in sect. 112, may mean a person against whom an invalid commission has issued, it will follow that the bankrupt might be liable to an indictment for felony, for concealing goods which in fact were his own property, and which he might be entitled to recover in an action. That

never could have been intended. The words, "if any person against whom any commission has been issued, or shall hereafter be issued, whereupon such person hath been or shall be declared bankrupt," must be construed to mean where he has legally been declared bankrupt.

DENMAN, C. J. It is quite clear, that if this indictment had charged Jones with felony, it would have failed, because it does not contain averments that he was a trader, &c. or had become bankrupt. The question then is, whether the indictment be good, because it charges a conspiracy to defraud the creditors of a bankrupt against whom a commission had issued de facto. The same answer applies in either case. If the party against whom the commission issued was not a trader, *the commission was illegal. The indictment ought to [*349 charge a conspiracy, either to do an unlawful act, or a lawful act by unlawful means. Here the indictment charges a conspiracy to remove and conceal the goods of Jones; but if the commission was bad, Jones had a right to remove them. If we were to hold such an indictment good, it would follow as a consequence, that a party who was entitled to recover goods in an action, if taken from him, might be declared a felon for removing the very same goods. There is nothing stated on the face of this indictment to constitute an offence. PARKE, J. I am of the same opinion. This indictment ought to have shewn a conspiracy to do an unlawful act, or to do a lawful act by unlawful means. Now it does not state enough to shew that the defendants conspired to do any unlawful act; it ought to have alleged, not merely the issuing of a commission of bankrupt, but that there had been a trading by Jones, and a petitioning creditor's debt, and that he became bankrupt. Without such allegations the indictment would clearly have been insufficient under the statute 5 G. 2, c. 30, and then that reduces it to the question whether an offence is charged within the statute 6 G. 4, c. 16. I think it is not. Section 112, implies that the commission therein mentioned shall have duly issued. The twelfth section shews that a valid commission could issue only against a trader who had committed an act of bankruptcy, and upon the petition of a creditor.

TAUNTON, J. The indictment ought to contain averments of all matters necessary to constitute the offence; it is not sufficient merely to allege matter which makes it probable that an offence has been committed. It was not enough to shew in this case that a commission issued, or that the [*350 commissioners adjudged the party to be a bankrupt. He must actually have become bankrupt. This indictment sets out the commission in part, and states that the commissioners were directed to proceed with the lands which Jones had in his own right, &c. before he became bankrupt. The commission, therefore, issued on the supposition that the party had become bankrupt. But the indictment ought to have shewn distinctly that he had become so. It is consistent with all the allegations, that Jones's goods may have been seized unlawfully, he never having subjected himself to the jurisdiction of the commissioners; and if this were so, it was not an unlawful act in him to remove or conceal them. The indictment is, therefore, defective.

PATTESON, J. It is conceded that so long as the statute 5 G. 2, c. 30, was in force, it was necessary to shew, in such an indictment as this, that a valid commission had issued against the person adjudged a bankrupt; but it is said that the law in this respect is altered by the statute 6 G. 4, c. 16, s. 112. It is quite clear that if the removal of the goods by Jones would not have been illegal, a conspiracy by him and the other defendants to remove them is not, unless the means used for that purpose were unlawful, which is not alleged. The question, then, is, did the legislature mean to enact that a person against whom an illegal commission of bankrupt issued should be guilty of felony if he removed his own goods? Without an express enactment to that effect, I could not come to such a conclusion. I think the words "such bankrupt," in s. 112, import, not merely a person against whom a valid commission has issued, but one who has become bankrupt. The rule for arresting the judgment must be made absolute.

[*351 Rule absolute.

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The statute 6 G. 4, c. 16, s. 127, which vests in assignees the future effects of a bankrupt who had before been bankrupt, or taken the benefit of an insolvent act, and has not paid 158. in the pound under the subsequent commission, does not apply to a bankrupt who had obtained his certificate under such subsequent commission, before that statute passed; and, therefore, where A., after being discharged under an insolvent act, had a commission of bankrupt issued against him, and obtained his certificate before the passing of 6 G. 4, c. 16, but did not pay 15s. in the pound, and he was afterwards sued on a bond executed before his discharge under the insolvent act, but not inserted in his schedule, it was held, that his certificate did not bar the action.

DEBT on bond. Pleas, first, non est factum; secondly, bankruptcy. At the trial before Patteson J., at the Middlesex sittings after Hilary term 1832, the following appeared to be the facts of the case. The defendant had, some years ago, and since the date of the bond, been discharged under an insolvent debtor's act, but the bond had not been inserted in the schedule; a commission of bankrupt had afterwards been issued against him, under which he obtained his certificate before the 2d of May 1825, on which day the statute 6 G. 4, c. 16, received the royal assent, but his estate had not produced 15s. in the pound. It was contended for the plaintiff that he was entitled to a verdict and judgment against the effects of the bankrupt by the 5 G. 2, c. 30, s. 9, and for the defendant that by 6 G. 4, c. 16, s. 127, his effects were vested in his assignees, and his certificate an absolute bar to the action. The learned Judge directed a verdict for the plaintiff. A rule nisi for a new trial was obtained upon the ground that the certificate barred the action.

Sir J. Scarlett and Follett now shewed cause. It never could have been the intention of the legislature that the 127th section of the new bankrupt act *3521 should make the certificate obtained by every bankrupt since the passing of the 5 G. 2, c. 30, under the circumstances mentioned in s. 9, a bar to subsequent actions by the creditors. The 135th section enacts, "that nothing herein contained shall affect or lessen any right, claim, demand, or remedy which any person now has under any commission of bankrupt, or upon or against any bankrupt against whom any commission has or shall have issued, except as is herein specifically enacted." Now here the plaintiff had at the time of passing that statute a demand upon the bankrupt, to which his future effects were liable, and there is no specific enactment which takes away that right.

White contrà. The words of section 127, are retrospective as well as prospective. They are "if any person who shall have been discharged by any insolvent act, shall be or become bankrupt, and have obtained or shall hereafter obtain such certificate as aforesaid." They evidently include a person who had already obtained his certificate at the time of passing the statute. So section 121, enacts, "that every bankrupt who shall have duly surrendered and in all things conformed himself to the laws in force concerning bankrupts at the time. of issuing the commission against him, shall be discharged from all debts due by him when he became bankrupt." In Robertson v. Score, 3 B. & Ad. 338, the Court intimated an opinion that section 127, applied to cases where the first certificate was granted under a commission issued before the passing of the act; the same construction applies where the second was so granted.

Cur. adv. vult.

*353] *DENMAN, C. J. now delivered the judgment of the Court. This was an action on a bond. The defendant pleaded, first, non est factum; secondly his bankruptcy. It was proved at the trial that the defendant had been discharged under an insolvent debtors' act some years ago, and since the date of the bond, but that the bond had not been inserted in his schedule; that a commission of bankrupt had since that discharge been issued against him, under which he obtained his certificate in 1825, before the day on which the statute

6 G. 4, c. 16, received the royal assent, but the estate had not produced 15s. in the pound. Under these circumstances the plaintiff contended that he was entitled to a verdict, and judgment against the effects of the defendant, under the 5 G. 2, c. 30, s. 9. The defendant, on the other hand, contended that by the 127th section of the 6 G. 4, c. 16, his effects were vested in his assignees, and therefore that his certificate was an absolute bar to the action according to the case of Robertson v. Score, 3 B. & Ad. 338, in which the certificate pleaded in bar had been obtained after the passing of the 6 G. 4, c. 16, a former certificate having been obtained by the party, under a commission issued before The question, therefore, is, whether the 127th section of the 6 G. 4, c. 16, has a retrospective operation, so as to vest in the assignees of a bankrupt under a second commission, where the estate does not pay 15s. in the pound, and where the bankrupt has obtained his certificate under the 5 G. 2, c. 30, those effects which did not vest in his assignees under that act, but were liable to be taken in execution by his creditors. The language of the 127th section of the *6 G. 4, c. 16, which appears to have been taken with some omissions from the 9th section of the 5 G. 2, c. 30, (a), is by no means clear, [*354 and it is extremely difficult to collect from it whether the legislature intended to alter the effect of a certificate obtained prior to that act or not. If it did, the rights of creditors, and of the bankrupt himself, would be much affected; and by the 135th section of the act, we find it enacted "that nothing herein contained shall render invalid any commission of bankruptcy now subsisting, or which shall be subsisting at the time this act shall take effect, or any proceedings which may have been had thereunder, or affect or lessen any right, claim, demand, or remedy which any person now has thereunder, or upon or against any bankrupt against whom any commission has or shall have issued, except as is herein specifically enacted."

Now we cannot find any words in the 127th section by which the right of a creditor situated as the plaintiff was, to sue the bankrupt and recover a judg ment, and have execution against his effects, is specifically and expressly taken away, or the effects of a bankrupt situated as this defendant was, are specifically and expressly vested in his assignees.

We think therefore, on these grounds, that the certificate is no absolute bar in the present case, and the grounds of our judgment leave the case of Robertson v. Score wholly untouched. Rule discharged.

*The KING on the Prosecution of the Rev. H. SMITH, Executor of the late Lady BLAKE, v. BLAKE. Nov. 26.

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A defendant arrested on an irregular writ de contumace capiendo, was brought up by habeas corpus before a Judge, to be discharged. Immediately after his discharge, and before he had time to return home, he was again arrested on a similar writ, for the same matter: Held, that he was protected from arrest redeundo.

The second writ was sued out of Chancery without any return made to the first; nevertheless it was held to be regular.

The stat. 1 W. 4, c. 3, s. 2, which enacts, that all writs returnable in the King's Bench, Common Pleas, or Exchequer, on general return days, may be made returnable on the third day exclusive before the commencement of each term, &c.; and the day for appearance shall as heretofore be the third day after such return, exclusive of the day of the return, &c., applies to all writs, not merely to those on mesne process, and consequently it extends to a writ de contumace capiendo.

THE defendant, on the 12th of May, 1832, had been arrested by an officer of the sheriff of Surrey, under a warrant granted upon a writ de contumace capi

(a) This latter clause is in express terms made retrospective only, both as to the first and second certificate.

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