CENTRAL CRIMINAL COURT. October 24, 1861. (Before Mr. Baron MARTIN.) REG. v. POWELL. (a) Bankrupt-Obtaining goods, &c., within three months' of filing a petition and date of fiat-12 & 13 Vict. c. 106, s. 253. An indictment for "obtaining goods, &c., on credit within three months, next preceding the date of the fiat and the filing of the petition for adjudication of bankruptcy, under the false colour and pretence of carrying on business and dealing in the ordinary course of trade," cannot be sustained upon evidence that the petition filed was one for private arrangement, under sect. 211 of 12 & 13 Vict. c. 106, although the defendant be afterwards adjudicated a bankrupt and the proceedings adjourned into open court. The misdemeanor contemplated by sect. 253 of 12 & 13 Vict. c. 106, arises upon the filing of a petition under the 89th section of the Act. CHA HAMPNEY POWELL was indicted for unlawfully obtaining goods within three months next preceding the date of the fiat, or the filing of his petition for adjudication of bankruptcy, under the false colour and pretence of dealing in the ordinary course of trade. Giffard, F. H. Lewis, and Eyre Lloyd for the prosecution. This was a prosecution directed by Evans, one of the Commissioners of the Court of Bankruptcy in London, under the 12 & 13 Vict. c. 106, s. 253, enacting "that if any bankrupt shall within three months next preceding the date of the fiat or the filing of the petition for adjudication of bankruptcy, under the false colour and pretence of carrying on business and dealing in the ordinary course of trade, obtain on credit from any other person any goods or chattels with intent to defraud the owner thereof, or if any bankrupt shall within such time and with such intent remove, conceal, or dispose of any goods or chattels so (a) Reported by ROBERT ORRIDGE, Esq., Barrister-at-Law. obtained, knowing them to have been so obtained, every such bankrupt shall be deemed guilty of a misdemeanor, and on conviction be liable to imprisonment," &c. It appeared in evidence that the defendant filed a petition for arrangement with his creditors under the control of the court, stating his inability to meet his engagements, and praying for protection whilst proposals to his creditors were being carried into effect under the authority of the court. This was under section 211 of 12 & 13 Vict. c. 106, which enacts "that any such trader unable to meet his engagements with his creditors, and desirous of laying the state of his affairs before them under the superintendance and control of the Court of Bankruptcy, and of submitting himself to the jurisdiction of the court in manner hereinafter mentioned, may present a petition to the court setting forth the true cause of such inability, and praying that his person and property may be protected from all process until further order; and the court, on such petition, shall have power to grant such protection, and may renew the same from time to time as it shall think fit, and if the petitioner be in prison or in custody for debt may, except in the cases next hereinafter mentioned, order his immediate release either absolutely or on condition, and may take bail for his attendance at the several sittings of the Court hereinafter mentioned, provided always that the court shall not order such release, &c., and provided also that such release shall in nowise affect any rights of the creditor at whose suit such petitioner may be in prison or in custody against such petitioner, except the right of detaining him in prison or in custody whilst protected from imprisonment by order of the court." This proposal of the petitioner not being assented to by a creditor, and cause being shown, the court adjudged the petitioner a bankrupt, and adjourned the proceedings into the public court by virtue of power given by section 223 of the 12 & 13 Vict. c. 106, which enacts, amongst other things, "if at any time after the filing of any petition for protection, it shall be shown to the satisfaction of the court by any creditor, that the debts of such petitioner, or any part thereof, have been contracted by reason of any manner of fraud or breach of trust, &c., &c., it shall be lawful for the court to adjudge such petitioner a bankrupt, and to adjourn all further proceedings in the matter into the public court, and to advertise such adjudication, and appoint sittings for choice of assignees and for last examination as in bankruptcy, and such petitioner shall thenceforth be amenable to the jurisdiction of the court in the same manner as any other bankrupt; and any proposal which may have been made, or assented to, or confirmed, shall be wholly and altogether void, and the court shall have power at any time, on the application of any creditor, to appoint a private sitting for the purpose of such inquiry, and may summon before it such petitioning creditor, or any other person, and examine him upon oath. touching such matters; and every such summons and examination REG. บ. POWELL. 1861. Bankrupt- goods. REG. v. POWELL. 1861. Obtaining goods. shall be enforced in such manner as summonses and examinations are enforced in matters of bankruptcy." At the close of the case for the prosecution, Ballantine, Serjt.-I submit that the prisoner cannot be convicted Bankrupt upon this indictment. The words of the 253rd section of 12 & 13 Vict. c. 106 are, "if any bankrupt shall within three months next preceding the date of the fiat or the filing of the petition for adjudication of bankruptcy;" so involving the necessity for a petition of adjudication and an act of bankruptcy. Here there is no such petition, but a petition for an arrangement to avoid bankruptcy, and there was even no act of bankruptcy, because there was no petition for adjudication of bankruptcy against him within two months after petition for arrangement was dismissed. The 76th section of 12 & 13 Vict. c. 106 enacts, "that the filing of a petition by any such trader for an arrangement between such trader and his creditors under the provisions of this act with respect to arrangements between debtor and creditor under the superintendence and control of the court, shall be accounted and adjudged conclusive evidence of an act of bankruptcy committed by such trader at the time of filing such petition, provided a petition for adjudication of bankruptcy shall be filed against him within two months after such petition for arrangement shall have been dismissed; provided also that no adjudication shall be made on any such act of bankruptcy unless and until after such petition for arrangement shall have been dismissed." MARTIN, B.-The petition in this case is for protection, the petition referred to in section 253 of 12 & 13 Vict. c. 106 is a petition for adjudication of bankruptcy. This is a petition to be enabled to do something to avoid an adjudication. Giffard (F. H. Lewis and Lloyd with him).-Although at the outset this petition took the form of a petition for arrangement, it was ultimately the proceeding upon which the petitioner was adjudicated a bankrupt, and everything done under it was to be carried on under the control and superintendence of the Court of Bankruptcy. The moment the proceedings were adjourned into open court, and the petitioner was adjudicated a bankrupt, as the adjudication followed upon the petition, the petition is to be construed with reference to the 253rd section as a petition for adjudication. MARTIN, B.-I do not think that. case. We are now on a criminal very forced even in a civil Giffard.-The petitioner by his petition, a form of which is given in Schedule (Aa) of the Act, and ordered by the 212th section, states that he "is desirous of laying the state of his affairs before the court under the superintendence and control of this honourable court, and of submitting himself to the jurisdiction thereof." That being so, the commissioner adjudicates him a bankrupt; and one of the grounds which authorises the commissioner to dismiss the petition for private arrangement and adjourn the proceedings into open court, is that there has been fraud. If the point urged on behalf of the prisoner be good, the very fraud found and acted on by the commissioner renders the prisoner not amenable to indictment. MARTIN, B.-That is a defect in the legislation. The Legislature never contemplated such a case as this arising, and we have only to deal with the law as it stands. The petition filed by the defendant was for protection, not that he might be adjudicated a bankrupt; and I think the charge contained in this indictment, framed upon the 253rd section of 12 & 13 Vict. c. 106, cannot be sustained. Not guilty. Upon two other indictments against the prisoner no evidence was offered. REG. v. POWELL. 1861. Bankrupt Obtaining goods. NORFOLK CIRCUIT. BUCKINGHAMSHIRE SPRING ASSIZES. Aylesbury, March 7, 1862. (Before MR. BARON MARTIN.) REG. V. THE UNITED KINGDOM ELECTRIC TELEGRAPH Nuisance-Obstructing highway-Direction to jury. A permanent obstruction on a highway, erected and placed there without lawful authority, which renders the way less commodious to the public, is an unlawful act and a public nuisance at common law, although it be not placed upon the hard or metalled part of the highway, or upon a footpath artificially formed upon it, and although the jury may think sufficient space for the public traffic remains. THE HE defendants were indicted for a nuisance in obstructing O'Malley, Q. C., D. D. Keane and Lathom Browne for the defendants. (a) Reported by ROBERT ORRIDGE, Esq., Barrister-at-Law. REG. V. KINGDOM ELECTRIC COMPANY jury. The indictment was as follows: to wit. } THE UNITED Buckingham First count.-The jurors for our Lady the Queen, upon their oath present, that the United Kingdom Electric Telegraph Company (Limited), on the 1st day of January, TELEGRAPH A.D. 1860, and at divers times subsequent thereto, the surface of a (LIMITED). Certain common and public footway in and upon that part of the south side of a certain turnpike-road from the town of Beacons1862. field to the river Colne, all in the county of Buckingham, where Nuisance the said turnpike-road passes near to a tenement occupied by one Obstructing Thomas Osborne, near the said river Colne, being the Queen's highwaycommon highway for all her subjects to pass and repass at their Direction to free will and pleasure, unlawfully and injuriously did dig up, remove, and misplace, and did dig certain holes in the said footway and placed soil, earth, and rubbish upon the surface of the said footway, and did erect, put and place and cause to be erected, put and placed, certain wooden posts, to wit, five with wires fastened to both sides of the said posts upon the said footway; and from the said 1st day of January, A.D. 1860, until the day of the taking of this inquisition at the place aforesaid, unlawfully and injuriously did continue, and doth still continue, these posts with wires attached so erected, put up and placed as aforesaid, whereby the said highway was, and is, obstructed and encumbered, and the Queen's subjects were prevented from passing and repassing so freely and safely along the said footway as they ought, and were, and are entitled to do, to the great damage and common nuisance of all the Queen's subjects there residing and passing along the said road and against the peace of our said Lady the Queen, her crown and dignity. Second count.-And the jurors aforesaid, upon their oath aforesaid, do further present that the United Kingdom Electric Telegraph Company (Limited) on the 1st day of January, A.D. 1860, and at divers other times; the surface of a certain street, called High-street, in the town of Beaconsfield, in the county of Buckingham, being the Queen's common highway for all her subjects to pass and repass at their free will and pleasure, unlawfully and injuriously did dig up, and remove, and misplace, and did dig certain holes in the said street, and placed soil, earth, and rubbish upon the surface of the said street, and did erect, put, and place, and did cause to be put, erected, and placed, certain wooden posts, to wit, eight with wires fastened to both sides of the said posts, upon the said street; and from the said 1st day of January, A.D. 1860, until the day of the taking of this inquisition, unlawfully and injuriously did continue, still doth continue, the said posts with wires attached so erected, put up, and placed as aforesaid, whereby the said highway was obstructed and encumbered, and the Queen's subjects were, and are, prevented from passing and repassing so freely and safely along the said street; and they ought, and were, and are entitled to do the great damage and common nuisance of all the Queen's subjects there residing, and along the said street, and against the peace of our said Lady the Queen, her crown and dignity. |