Court Of Common Pleas, We...
T'his case was argued before the Court on Friday and Saturday last. Cnief Justice BusT proceeded to give judgment this morning. The facts of the case, as they appeared in the cuarse of the argu- ments, were in substance these $-Bakerhad brought an action against Ridgway for goods sold ard dAelivered, and recovered a ver- dict for 3,0001. and upwards. Before judgment could be eltered up on this verdict, the defendant disposed of aU his property. The plaintiffin the next term (no motion having been made to disturb the verdict) entered up judgment, and arrested the defendant in exe- cntion. Soon after this, a commission of bankruptcy was issued against defendant on a bill of exchange, wlich had been given idnce the verdict, and became due after his imprisonment. TFhe plaintiff being,by act 49th George III., obliged to make his election either to continue the defendant in execution or come in and prove big debt ur.der the commission, he adopted thc latter course, was appointed assignee, aznd then the defendant was discharged out of custody. Immediately on his dischage from custody, he petitioned the Lord Chancellor to have the commission of bankruptcy superseded, on the ground of the insufficiency of the petitioning creditor's debt. The prayer of the petition was at length complied with, and the commis- sian superseded. The plaintiff, being now deprived of his remedy under the commission, betook himnself to the only other means in his power,by again arresting the defendant in execution. The defendant then applied to the Court to be discharged Cut of custody; and the question for their Iordships' consideration was, whether the plain- tiff could continue to hold the defendant in castody under the execu. tion; and wlhether he did not deprive himself of aul further power ot suing on the judgment, by having made his election, and proved un- der tlhe commission of bankruptcy. For the plaintiff, it was contended by Sergeants V.4uGmAw and TADDY, that the commission having been superseded, the partiei were left just in the same situation as if it had never existed; and as the plaintiff would have had his remedy in the execution on the judgment, if the commission had not issued, that commission be- ing dedared invalid, could not put him in a worse situation that he was before; and that therefore his right under the judgment remained unimpaired. It was farther contended, that these argu- ments would apply with still greater force to the case, as it appeared from the affidavits of the plaintiff, that the commission was got up by concert of defcndant, in order to drive the plaintift' from his exe- cution, and to bring him to prove under a commission which he (defendant) well knew weuld be afterwards set aside as irregular. The defendant, in his affidavits, denied all concert in the suing out th counmission,and that atthe time when theplaintiffhad chosen top pove his debt,and was appointed assignee under it,he (defendant) had no idea that the commission was invalid or could beset aside. It was now contended by his counsel, Sergeants BOSANQUET and WVILDE, that under these circumstances, the plaintiffhaving made his election, given up his execution. and proved under the commis- sion,had deprived himself of any power of resorting to the same exe- cution again. Lord Chief Justice BEsT, in delivering thejudsment of the Court this moming, observed,that in his opinion the application ought to be refusedt, and that the det'endant ought not to be discharged. It was true that, generaUy speaking,when a man gave up an execution, and chose to proceed against a defendant under a commission of bank- ruptcy, he gave up for then and for ever his right to proceed under the execution; but no person cotld maintain that when a creditor was induced to prove his debt under a commission got up by concert of defendant himself, and which the defendant afterwards set aside, that this proceeding would deprive the plaintiff of all fartber remedy under the execution. To support a doctrine contrary to this, would be to oppose that well-known maxim of law, that no man should be allowed to take advantage of his own wrong. It was dear, tben, thar if Fhere was any fraud on the part of the defendant, he could not take advantage of it; and that if he had concerted the bank- ruptcy, his present application could not be grante(l. The next question was-had the defendant beer guilty of fraud ? His Lord- ship then took a review of the facts of the case, and observed, that from the whole takeentogether-from the sale of his property after the verdict against him and before execution, from the suing out of the commission and the setting aside the verdict by the defendant himself-tlat he had been guilty of fraud, and could not avail him- self of it to obtain his discharge The application must therefore be refused. MIr. Justice PARK concurred riA the Lord Chief Justice as to the law of the case, but he was not equally impressed as to the facts. It was positively sworn by the defendant, that he bad no knowledge that the commission against him was invalid, and that he had no concert in issuing it; and as it was the rule of the Court to take the statement of the party swearing last, when not inconsistent with the admitted facts of the case he could not bring himself to think that the defendant had sworn falsely in this instance. There- fore, not being of opinion that fraud was intended by defendant, he thought that plaintiff hating made his election, and given up the execution, and gone to proof of Isis debt under the commission, hc could not now (the commissi9n failing) go back again to his execu- tion. Ee thought, therefore, that the defendant was entitlcd to be discharged from custody. MIr. Justice BUstitou;i concurred in opinion as to the law and facts of the case with the Lord Chief Justice, and the application was refused. I COURT OF COMiAMON PLEAS. WESTMI-43TEL. MATA 17- BAKE:B V. RIDGWAY.