William Lunham v George Henry Wakefield and Joseph Godsden Nash
| Jurisdiction | Ireland |
| Judgment Date | 12 January 1864 |
| Date | 12 January 1864 |
| Court | Queen's Bench Division (Ireland) |
Queen's Bench
Pim v. WilsonENR 2 Phil. Ch. Cas. 653.
Savile v. RobertsENR 1 Salk. 14.
Purton v. HonnorENR 1 Bos. & P. 205.
Chapman v. Pickersgill 2 Wils. 145.
Farley v. DanksENR 4 El. & Bl. 493.
Cotterell v. JonesENR 11 C. B. 713.
Anonymous 1 Fonbl. Bank. Cas. 134.
Reynolds v. Wilson 1 Wils. 232.
Hadden v. LottENR 15 C. B. 411.
Fivaz v. NichollsENR 2 C. B. 501.
Florence v. JeningsENR 2 C. B., N. S. 454.
Waterer v. FreemanENR 1 Hob. 205. 266.
Farley v. Danks 4 Ell. & Bl. 493.
Goslin v. Wilcock 2 Wils. 302.
Churchill v. Siggers 3 Ell. & Bl. 929.
Cotterell v. JonesENR 11 C. B. 713.
Haddan v. LottENR 15 C. B. 411.
Craig v. Hassell 4 Q. B. 481.
Grainger v. HillENR 4 Bing., N. C. 212.
Haywood v. Collinge 9 Ad. & Ell. 268.
Rolin v. StewardENR 14 C. B. 595.
Oldfield v. Dodd 8 Ex. Rep. 579.
Martin v. Lincoln Buller's N. P. 12.
Price v. WilsonENR 2 Ph. Ch. Cas. 656.
Marsh v. Veal Cro. Eliz. 701.
Mills v. MillsENR Cro. Car. 239.
Goslin v. Wilcox 2 Wils. 305.
Savile v. RobertsENR 1 Salk. 14.
Waterer v. FreemanENR 1 Hob. 205, 266.
Martin v. Lincoln B. N. P. 13.
Waterer v. FreemanENR Hob. 266.
Farrel v. Nun B. R. T.; 5 G. 3, S. P.
Lewis v. FarellENR 1 Str. 114, S. P.
Atwood v. Monge Styles' Rep. 379.
Chapman v. Pickersgill 2 Wils. 145.
Cotterel v. JonesENR 11 C. B. 713.
Pratt v. Goswell 9 Scott, C. B., N. S. 710.
Roberts v. SavileENR 1 Salk. 13.
Waterer v. FreemanENR Hob. 205, 266
Pim v. WilsonENR 2 Ph. Ch. Cas. 653. 656.
Farley v. Dawks 4 Ell. & Bl. 493.
Craig v. Hassell 4 Q. B. 481.
Churchill v. Siggers 3 Ell. & Bl. 929.
Chapman v. Pickersgill 2 Wils. 145.
Savile v. Roberts 1 Lord Ray. 378 to 380.
Craig v. Hassell 4 Q. B. 481.
Cotterell v. JonesENR 11 C. B. 713.
COMMON LAW REPORTS. 507 M. V. 1863. Queen's Bench WILLIAM LUNHAM v. GEORGE HENRY WAKEFIELD and JOSEPH GODSDEN NASH.* (Queen's Bench.) Dec. 7, 17. H. T. 1864. Jan. 12. DEmuRRER.-Summons and plaint :-That, at the time of the corn- The - plaint al leged that the mitting of the grievances hereinafter mentioned, the plaintiff was defendant W., having made • not indebted to the defendants in the sum of £220. 7s. Od., or in demand of a certain sum of any sum amounting to or extending to the sum of or in any money on the plaintiff L., sum whatsoever ; yet the defendants, maliciously contriving and according to the form in the intending to injure the plaintiff, and to make him commit an act schedule to - Bank Irish of bankruptcy, and to sue out thereon a commission of bankruptcy ruptcy and In- solven against him, and to have him thereupon adjudicated bankrupt,solvency , Act falsely and ma- or by reason of the fear of such proceedings to compel him to liciously, and without rea- submit to the unjust demand made on him for the sum of £220. sonable or - pro bable cause, 7s. Od., hereinafter mentioned, and falsely alleged to be due by the had a sum mons issued plaintiff to the defendants,--falsely, maliciously, and without rea- out of the Bankrupt sonable or probable cause, to wit, on the 8th day of October 1862, Court, for the personal ap made or caused to be made an account in writing of the pretended pearance of L.; that the bank- particulars of a pretended demand of the defendants on the plaintiff ruptcy pro- ceedings were for the sum of £220. 7s. Od., for goods falsely pretended to have determined in been sold and delivered by the defendants to the plaintiff, with a favour of L.; and that L. notice thereunder requiring immediate payment thereof, purporting had suffered much in his credit and re putation by having had to appear at the said Court. ,To this defendant deÂmurred Held (dissentiente HAYES, J ), allowing the demurrer, that the plaint disclosed no cause of action. Held also, that the suing out a commission of bankruptcy is not analogous to the proceeding by trader debtor summons. Held (per HAYES, J.), that special damage was sufficiently averred. * Before O'BRIEN, HAYES, and FITZGERALD, JJ. 508 COMMON LAW REPORTS. M. V. 1863. to be in the form, or to the effect specified in the schedule (F) to a Queen's Bench certain Act of Parliament passed in the twenty-first year of the LUNA AM reign of her present Majesty, intituled " The Irish Bankrupt and WAKEFIELD. Insolvent Act, 1857 ;" and afterwards, on the 7th day of November 1862, falsely and maliciously, and without any reasonable or pro bable cause, caused the said particulars of demand and notice requiring payment to be served at the plaintiff's place of abode ; and afterwards, falsely and maliciously, and without reasonable or probable cause, caused to be filed in the office of the Court of Bankruptcy and Insolvency in Ireland, an affidavit subscribed and sworn on behalf of the defendants by the said George Henry Wakefield, one of the defendants, and one Michael Collins, purÂporting to be in the form required by the said Act, in which affidavit the said George Henry Wakefield, on behalf of said defendants, and with the privity and assent of one Joseph Godsden Nash, amongst other things, falsely, maliciously, and without reasonable or probable cause, swore that the plaintiff was justly and truly indebted to the defendants in the sum of £220. 7s. Od., for goods sold and delivered ; and thereupon the defendants falsely and maliciously, and without reasonable or probable cause, procured the Honorable Judge Lynch, being one of the Judges of the. BankÂruptcy and Insolvency Court, to issue a summons in pursuance of the said Act, whereby the plaintiff was required personally to be and appear before the 'Court of Bankruptcy and Insolvency at the said Court, Four-courts in the city of Dublin, on the 14th day of November 1862, at twelve o'clock, for the purpose of ascertaining in manner and form prescribed by the Irish Bankrupt and Insolvent Act, 1857, whether or not the plaintiff admitted the said demand of the defendants, who claimed of him the sum of £220. 7s. Od., for a debt, or any and what part thereof; or whether the plaintiff verily believed he had a good defence upon the merits to the said demand, or to any and what part thereof ; and the defendants falsely, maliciously, and without any reasonable or probable cause, caused a copy of the said summons to be served on the plaintiff. And the plaintiff says that he attended in pursuance of the said summons at the said Court, before the Honorable Judge Lynch, one of the COMMON LAW REPORTS. 509 Judges of said Court, on the said 14th day of November, said M. V. 1863. Queen's Bench Court being then open to the public, and there being divers persons therein, and did then and there, pursuant to the provisions of the LIINHAM V. 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 proÂceedings were had that the said proceedings, so as aforesaid instiÂtuted 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 comÂmitted 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 proÂceedings, 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. 510 COMMON LAW REPORTS. 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, LIINLIAM an action will lie for maliciously having a party sued and made v. 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..--EFurzamiALD, J. The Court of Bankruptcy has a discretionary power to give costs. If it does not give them, is not that a damnification...
To continue reading
Request your trial