Actions. Limitation of actions. issue. at any time before issue joined, pay into Court such sum as he shall think fit; upon which such proceedings shall be had, as in other actions where the defendant is allowed to pay money into Court. Every action against any person, for any thing done in pursuance of the act, must be commenced within three calendar months (1) next after the fact committed; and the May plead defendant may plead the general issue, and give the statute general and the special matter in evidence at the trial, and that the same was done by authority of the statute; and if it shall appear to have been so done, or that the action was commenced after the time limited for bringing it, the deDefendant fendant will be entitled to a verdict; and in that case, or entitled to in case of a nonsuit, or discontinuance of the action after appearance, or if upon demurrer judgment shall be given against the plaintiff, the defendant will be entitled to double double costs. When commissioners liable to action. costs, The right of action against the Commissioners is founded upon the general rule of law, applicable to all actions of trespass against persons having a limited authority. If they do any act beyond that limit, they thereby subject themselves to an action of trespass; but if the act done be within the scope of their authority, although it be done through an erroneous or mistaken judgment, they are then not liable (2) to such action. Thus, though it was formerly held that an action would lie against them, for committing a person for not answering improper questions, or not acquiescing in a proper answer (3), — it has been since decided, that commissioners are not liable to an action of trespass for committing a bankrupt, who does not answer to their satisfaction, notwithstanding he is discharged afterwards by habeas corpus on the ground of the Court thinking the answers (4) satisfactory; for the commissioners have a discretionary power to commit, if the answers are not (1) Section 44. (2) Per Abbott C. J. Doswell v. Impey, 1 B. & C. 169., and see ante, 150. and seq. (3) Miller v. Seare, 2 Bl. 1141. (4) Doswell v. Impey, 1 B. & C. 163. satisfactory to themselves. Neither will any action lie Actions. against commissioners for a commitment, which is bad only in consequence of a formal defect in the warrant. (1) In an action brought against the Commissioners by a Where person apprehended on their warrant, for not obeying a onus of proof lies previous summons requiring his attendance before them, on plainit lies on the party summoned, having a lawful excuse for tiff. not attending, to prove the fact of his being prevented from attending by a lawful impediment. (2) When the Commissioners have incurred any costs, by Right to defending an action brought against them for an act done indemnity in the strict discharge of their duty, they have a right to be compensated by the assignees; and the Chancellor will not restrain them from bringing an action to recover such costs, though the assignees have not received sufficient to pay the expenses of the commission, and have, in fact, no prospect of obtaining any more of the bankrupt's property. The Commissioners, indeed, act under a double security; for, besides that which every other judge is entitled to in the exercise of his duty, they have also the covenant of the assignees. (3) from costs. warrant ment. Where the bankrupt is confined in prison under pre- How far vious process, the mere issuing of the commissioners' war- evidence rant does not amount to an imprisonment by them, until it of the has been in some way operative to the detention of the imprisonparty, independently of the other process; for the warrant is only evidence of the order for imprisonment, and not of the imprisonment itself. But if it operate to the confinement of the party within narrower bounds, it is then, coupled with proof of that fact, evidence of an imprisonment by the commissioners. (4) Where the bankrupt had been already nonsuited in an Court will action against the Commissioners in the King's Bench, stay proceedings Actions. a former on the ground that he was not prepared with evidence to till costs of prove the validity of a former commission, the Court of Common Pleas, in an action for the same cause, stayed the proceedings until the plaintiff paid the costs of the former action. (1) action paid. When commis sioners affidavits in answer other Notwithstanding a petition from the bankrupt, or any person, reflects on the conduct of the commissioners, may make they are not called upon, and indeed ought not, to make affidavits in answer to the allegations contained in it, unless they to any pe are actually served with the petition. In that case they tition. are made parties, and may properly come forward, and defend their conduct upon affidavit; but they are not otherwise to make themselves a species of witnesses, either with respect to their own conduct, or the general nature of the transactions under the commission. They are to take it for granted, that the Lord Chancellor will give them credit for having acted properly, unless such a case appears upon the petition, as induces him to call upon them for an explanation of their conduct, in which case, if the imputations against them prove to be groundless, they will then have justice done them with respect to their costs and expenses. But this cannot be done, where they come forward as parties, without being served with the petition.(2) (1) Crowley v. Impey, 8 Taunt. 407. 2 Moore, 460. (2) Ex parte Husband, 1 G. & J. 169 CHAP. VIII. OF THE MESSENGER, the office. THE Messenger is the officer of the Commissioners, and Nature of his duty is to execute promptly the summonses and warrants directed to him by them, whether for the seizure of the bankrupt's property, or for summoning or apprehending the bankrupt, or other persons, during the different proceedings under the commission. For his trouble in the discharge of these duties, he is entitled to certain fees, which are taxed by the commissioners, and are paid out of the bankrupt's estate. There are several messengers attached generally to the commissioners of bankrupts in London; and it is usual for the solicitor, who issues a town commission, to nominate which of them he chooses to act as messenger under it. rity as to of the bankrupt's the seizure person and pro The messenger is amply protected in the discharge of His authohis duty, if he behaves himself properly, and does not exceed the limits of his authority, as defined in the various enactments of the statute. He may, by warrant under the hands and seals of the commissioners, "break open (1) any house, chamber, shop, warehouse, door, trunk or perty. chest of any bankrupt (2), where the bankrupt or any of his property shall be reputed to be, and seize upon the body, or property, of the bankrupt." And if the bankrupt be in prison or in custody, he may seize any property (3) (except (1) Section 27. (2) The wording of this section is rather obscure; for it seems doubtful whether the words, " of any bankrupt," are intended to apply only to "trunk or chest," (as from the pointing of the printed act would seem to be implied), or are meant to be connected with the matters previously enumerated, namely, "any house, chamber, &c.,"—under which last construc- (3) There is also an omission in Where his necessary wearing apparel) in the custody or possession of the bankrupt, or of any other person, in any prison or place where the bankrupt is in custody. If any of the bankrupt's property (1) is in Ireland, the part of the messenger may in the same way seize the property there; property is in Ireland. but the warrant in that case must be verified upon oath by the solicitor under the commission, before the mayor or other chief magistrate of the city or town where or near to which the commission is executed, and be also verified under the common seal, or the seal of office of such mayor or magistrate; and the messenger must also depose upon oath, before a justice of peace residing in the county where the bankrupt's property shall be reputed to be, that he is the person named in such warrant. Where Where there is reason to suspect that property of the the probankrupt is concealed (2), the messenger may then obtain perty is concealed. a search-warrant from any justice of peace in England, or Ireland, and may execute it in the same manner, and is entitled to the same protection, as is allowed by law in the execution of a search-warrant for stolen property. Where any property is in Scotland. Inventory of bankrupt's effects. If, in the execution of the commissioner's warrant, it becomes necessary to have access to any house or place of the bankrupt in Scotland (3), the warrant, after being verified upon oath as before mentioned, must be backed or indorsed with the name of a judge ordinary or justice of the peace in Scotland, which will be then sufficient authority to the messenger, and all officers of the law in Scotland, to execute it within the county or burgh wherein it is so indorsed. The messenger, when he seizes the bankrupt's property, should make an inventory of every article, which the bankrupt ought, if possible, to see and acknowledge to be correct; and the inventory, with the articles contained in it, must as soon as assignees are chosen be delivered up to them. None of the property should be left in the bank, (3) Section 30. (1) Section 28. |