1851.

In re EVERARD.

by an auditâ querelâ. Then, is there anything in the succeeding part of the clause at variance with that construction? It provides, that no execution, by virtue of any certificate for execution, "shall be issued" after allowance of the certificate of conformity. But if the allowance of that certificate is an absolute destruction of the certificate for execution, this part of the section ought to be read as if it had been "provided that no execution shall be issued or enforced after allowance of the certificate of conformity." That is the meaning of the 257th section. Then, with regard to the 259th section, if we were to put the construction on it which is contended for, and hold that the bankrupt, whatever the period of suspension might be, must undergo a year's imprisonment when taken in execution, it would be extremely unjust. For instance, suppose the judgment of the Commissioner entitled the bankrupt to be discharged at the end of three months, would it not be strange, that the assignees or a creditor should have power to imprison him for a year, while only a like consequence would follow if the certificate were suspended for two or three years? It appears to me, therefore, that on a reasonable construction of the 259th section, its meaning is this, that when a certificate of conformity is altogether refused, the bankrupt may be taken into custody and imprisoned for the period of a year, with power for the Court to discharge him if they think fit. So likewise, if the certificate is suspended, though it may be for a year or more, still the bankrupt is only liable to be kept in prison for one year. The result is, that inasmuch as the period during which the certificate in this case was inoperative expired on the 4th of January, 1851, the bankrupt could not be taken in execution after that day, and is now entitled to be discharged.

ALDERSON, B.—I am of the same opinion. It is not necessary to alter the words of the 257th section in order to construe it. The previous sections say, that the certifi-,

cate of conformity may either be granted, or altogether refused, or suspended for a limited time. Then schedule (Ba) contains a form of certificate for execution; which merely certifies, that the assignees or creditor are entitled to a writ of execution against the bankrupt, on the ground that the Court has refused him protection; but it does not say how long the certificate is suspended, or whether it has been altogether refused; so that it is competent for the assignees or creditor to apply at any time to the of ficer for a writ of execution, on production of that certificate; for the officer who is to grant the writ can know nothing of the matter. Then the 257th section further provides, that as soon as allowance of the certificate of conformity has taken place, that is, when the period, if any, of suspension has expired, the certificate thus given shall be deemed to be cancelled and discharged. It is, as my brother Parke has observed, similar to a judgment defeated by an auditâ querelâ, the result of which is, that everything founded on the judgment must fall with it. Then it may be asked, why did the legislature put in the words "no execution, by virtue of any certificate which shall be granted to any creditor or assignees as aforesaid, shall be issued after the allowance of his certificate of conformity." If according to the previous part of the section, such execution can neither be issued nor enforced, these latter words are useless, for they are implied in the words that "the certificate shall be deemed to be cancelled and discharged." But these words may possibly have this effect, that the execution, if granted after the allowance of the certificate of conformity, may be an irregular execution, and as such liable to be set aside with costs. So that, in that case, the party would not only be entitled to be discharged out of custody, but also to set aside the writ of execution. That is not a part of this rule, because the writ has regularly issued; the complaint being that it was irregularly enforced. The only rational con

1851.

In re EVERARD.

1851.

In re EVERARD.

struction of the 259th section, and the only one which will render it consistent with the 257th is, that when the certificate of conformity has been suspended for a longer period than a year, the bankrupt is entitled to be discharged at the end of the year; but if the suspension expires before the expiration of a year, the imprisonment ends when the certificate for execution is cancelled and discharged. The 259th section in truth merely limits the period of imprisonment, which might otherwise be an indefinite number of years.

PLATT, B.—I am of the same opinion. Mr. Gray has taken a correct view of the law, by assimilating the provisions in question to those in the Insolvent Debtors Act; for clearly, in my judgment, the legislature had in view precisely the same object, namely, punishment, by rendering the fraudulent bankrupt either a fugitive or a prisoner for a certain time. That being so, the legislature says that the Court of Bankruptcy, when it shall have suspended the certificate of conformity, shall grant a certificate to the assignees or creditor, and that such certificate shall have the effect of a judgment in the superior Courts until the allowance of the certificate of conformity. Therefore the moment that takes place, it ceases to have the effect of a judgment, and is to be deemed absolutely cancelled and discharged. The latter part of the section perfectly agrees with that. Here, then, the certificate is gone altogether; and why, then, is the bankrupt to be kept in custody? Then it is asked, how is the proviso at the end of the section to be construed? It seems to me that my brother Alderson has put that matter on its right footing; for the officer whose duty it is to act on the certificate for execution can know nothing about the time for which the certificate of conformity was suspended.

PARKE, B.-I do not wish to be understood as not agree

ing with my brother Alderson as to the construction which he puts on the latter part of the 257th section; it is unnecessary to decide that point.

1851.

In re EVERARD.

Rule absolute.

THIS

SLOCOMBE v. LYALL.

was an action of trespass quare clausum fregit. The defendant took out a summons for leave to plead the following several matters:-First, Not guilty; secondly, that the close in which &c. was not the close of the plaintiff; thirdly, liberum tenementum. The summons was heard before Martin, B., who refused to allow both the two latter pleas, and required the defendant to make his election. A rule having been obtained, calling on the plaintiff to shew cause why the defendant should not be allowed to plead the above matters,

Ogle shewed cause.-The learned Judge was correct in refusing to allow these pleas. Before the case of Jones v. Chapman (a), some doubt might have existed whether a plea, that the close in which &c. was not the plaintiff's, put in issue more than the bare right of possession. In Whittington v. Boxall (b), the Court of Queen's Bench held, that the defendant could not under such a plea offer evidence of title in himself. That decision, however, must now be considered as overruled by Jones v. Chapman, in which it was held, that under that plea the defendant may shew a lawful right to the possession of the close, either in himself or some other person under whom he claims. [Parke, B.-That does not make the pleas iden

(a) 2 Exch. 803.

(b) 5 Q. B. 139.

Jan. 18.

In trespass quare clausum fregit, the defendant is entitled to plead liberum tene

mentum toge

ther with a plea denying

that the close

in which &c. is the plaintiffs.

tical. The plea denying that the close is the plaintiff's, is a denial of his possession; liberum tenementum admits his possession but denies his title. Long before the case of Whittington v. Boxall, it was the constant practice to allow both these pleas. It was done in Morse v. Appleby (a). The difficulty has arisen from using the term "not possessed," a term wholly inapplicable to this plea, which is "it is not his close."] If both pleas be allowed, the plaintiff would be entitled to apply to the Court to strike one out, as being in violation of the rule Hil. T. 4 Will. 4, s. 5. [Parke, B.-No: they do not necessarily relate to the same subject-matter of defence. Under the plea, that the close is not the plaintiff's, he must prove himself in possession, and that is sufficient until the defendant shews a better title; but the plea of liberum tenementum sets up the title of the defendant. Alderson, B. It has been the universal practice to allow these pleas, and we ought to adhere to it.]

J. Brown appeared in support of the rule, but was not called upon.

POLLOCK, C. B.-The rule must be absolute. The plea of liberum tenementum raises a question of title and nothing else. The plea, that the close is not the plaintiff's, denies his possession as well as title. One reason why we should allow these pleas is, that should the defendant fail as to one of these matters, and succeed on the other, if we disallowed these pleas it would materially affect the costs. A defendant, who means to deny a particular matter, should be enabled to do so in such a way that he may get his costs if he succeeds.

PARKE, B.-Under the denial that the close is the plain

(a) 6 M. & W. 145.