Chapman v. Pickersgill In the Common Pleas, Michaelmas Term, 1762. Reported in 2 Wilson, 145

Action upon the case for falsely and maliciously suing out a commission of bankrupt against the plaintiff, who declared upon three counts; in the first, having stated his honesty, he alleges that the defendant did falsely and maliciously exhibit a petition to the Lord Chancellor that the plaintiff was indebted to him in £200, and had committed an act of bankruptcy, that the commission thereupon issued, and the plaintiff was declared a bankrupt, and that afterwards the commission was superseded; and the plaintiff avers that he never committed any act of bankruptcy; the second count is much the same, with the like averment; the third count is much the same, but without such averment. To this the defendant pleaded the general issue, and there was a general verdict and damages for the plaintiff taken, upon all the three counts; whereupon it was moved that the judgment might be arrested.

This case was argued twice at the bar, in two former terms by Serjeant Hewitt and Serjeant Burland for the defendant, and by Serjeant Whitaker and Serjeant Nares for the plaintiff; and in this term the Lord Chief Justice gave the opinion of the whole court, that judgment must be for the plaintiff.

Lord Chief Justice. Upon the arguing of this case, the first objection was, that this action will not lie, there being a remedy given by statute, that a proceeding on a commission of bankruptcy, was a proceeding in nature of a civil suit; and that no action of this sort was ever brought: but we are all of opinion that this action is maintainable.

The general grounds of this action are, that the commission was falsely and maliciously sued out, that the plaintiff has been greatly damaged thereby, scandalized upon record, and put to great charges in obtaining a supersedeas to the commission; here is falsehood and malice in the defendant, and great wrong and damage done to the plaintiff thereby. Now, wherever there is an injury done to a man’s property by a false and malicious prosecution, it is most reasonable he should have an action to repair himself. See 5 Mod. 407, 8; 10 Mod. 218; 12 Mod. 210. I take these to be two leading cases, and it is dangerous to alter the law. See also 12 Mod. 273; 7 Rep. Bulwer’s case, 1. 2 Leon. —— 1 Ro. Abr. 101; 1 Ven. 86; 1 Sid. 464. But it is said this action was never brought; and so it was said in Ashby and White; I wish never to hear this objection again. This action is for a tort; torts are infinitely various, not limited or confined, for there is nothing in nature but may be an instrument of mischief, and this of suing out a commission of bankruptcy falsely and maliciously, is of the most injurious consequence in a trading country.

It is further said the stat. 5 Geo. 2, has given a remedy, and therefore this action will not lie; but we are all of opinion, that in this case the plaintiff would have been entitled to this remedy by action at common law, if this Act had never been made, and that the statute being in the affirmative, hath not taken away the remedy at law. 2 Raym. 163. And this is a universal rule, that an affirmative statute is hardly ever repealed by a subsequent affirmative statute, for if it is possible to reconcile two statutes they shall both stand together; if they cannot be reconciled, the last shall be a repeal of the first; but the most decisive answer is, that this statute-remedy is a most inadequate and uncertain remedy; for though there be the most outrageous malice and perjury, and the party injured suffer to the amount of ten or twenty thousand pounds, yet the Chancellor has no power to give him more than the penalty of £200; besides, the method of applying to the Chancellor, is more tedious, expensive, and inconvenient than this common law remedy, and this case in its nature is more properly the province of a jury, than of any judge whatever.

It is further objected, that in the third count there is no averment that the plaintiff was not indebted to the defendant, or ever committed an act of bankruptcy; but no case was cited to show such averment to be necessary; the ground and substance of the declaration is falsehood and malice; there are no instances of such averments in conspiracy, that the party was innocent, or did not do the fact on which he was indicted, but the precedents are the other way. In an action for words, as for saying a man is a thief, the plaintiff has no occasion to aver he is not a thief, and this case is analogous; for after the plaintiff has alleged that the commission was false and malicious, it would be tautology, to make such averment that he was not indebted, &c., and this declaration would have been good on a demurrer; more clearly it is so, after a verdict.

Judgment for the plaintiff.