chapman versus Pickersgill c b case for false and malicious sue out a  commission of bankruptcy which be afterward supersede be a very proper action  at law though the chancellor have power to give damage by statute action upon  the case for false and malicious sue out a commission of bankrupt against the  plaintiff who declare upon three count in the first have state his honesty he  allege that the defendant do false and malicious exhibit a petition to the  Lord chancellor that the plaintiff be indebt to he in and have commit a act of  bankruptcy that the commission thereupon issue and the defendant be declare a  bankrupt and that afterward the commission be supersede and the plaintiff aver  that be never commit anyact of bankruptcy the second count be much the same  with the like averment the three count be much the same but without such  averment to this the defendant plead the general issue and there be a general  verdict and damage for the plaintiff take upon all the three count whereupon  it be move that the judgement may be arrest for two reason first because this  action will not lie there be in this case a particular remedy give by the  statute of bankrupt Geo and geo which enact that before any commission shall  issue the petition creditor shall among other thing give bind to the Lord  chancellor in the penalty of to be condition for prove his debt and the party  a bankrupt before the commissioner and upon a trial at law c and if it shall  appear that the commission be take out fraudulent or malicious the chancellor  may Wilson king bench order satisfaction to the party grieve or may assign the  bind to the say party who may sue the same in his own name the second point on  which the judgement be move to be arrest be because it be not aver in the  three count that the plaintiff be not indebt to the defendant in or that he  never commit any act of bankruptcy this case be argue twice at the bar in two  former term by sergeant Hewitt and sergeant Burland for the defendant and by  sergeant Whitaker and sergeant nares for the plaintiff and in this term the  Lord chief justice give the opinion of the whole court that judgement must be  for the plaintiff Lord chief justice upon the argue of this case the first  objection be that this action will not lie there be a remedy give by statute  that a proceed on a commission of bankruptcy be a proceed in nature of a civil  suit and that no action of this sort be ever bring but we be all of opinion  that this action be maintainable the general ground of this action be that the  commission be false and malicious sue out that the plaintiff have be great  damage thereby scandalize upon record and put to great charge in obtain a  supersedeas to the commission here be falsehood and malice in the defendant  and great wrong and damage do to the plaintiff thereby now wherever there be a  injury do to a man property by a false and malicious prosecution it be most  reasonable he shall have a action to repair himself see Mod Mod Mod I take  these to be two lead case and it be dangerous to alter the law see also Mod  Rep Bulwers case Leon I roll Abr I Ven side but it be say this action be never  bring and so it be say in Ashby and white I wish never to hear this objection  again this action be for a tort tort be infinite various not limit or confine  for there be nothing in nature but may be a instrument of mischief and this of  sue out a commission of bankruptcy false and malicious be of the most  injurious consequence in a trade country it be further say the stat geo have  give a remedy a d therefore this action will not lie but we be all of opinion  that in this case the plaintiff will have be entitle to this remedy by action  at commonlaw if this Act have never be make and that the statute be in the  affirmative bath not take away the remedy at law raym and this be a universal  rule that a affirmative statute be hardly ever repeal by a subsequent  affirmative statute for if it be possible to reconcile two statute they shall  both stand together if they can be reconcile the Wilson king bench last shall  be a repeal of the first but the most decisive answer be that this  statuteremedy Wilson king bench er p be a most inadequate and uncertain remedy  for though there be the most outrageous malice and perjury and the party  injure suffer to the amount of ten or twenty thousand pound yet the chancellor  have no power to give he more than the penalty of beside the method of apply  to the chancellor be more tedious expensive and inconvenient than this  commonlaw remedy and this case in its nature be more proper the province of a  jury than of any judge whatever it be further object that in the three count  there be no averment that the plaintiff be not indebt to the defendant or ever  commit a act of bankruptcy but no case be cite to show such averment to be  necessary the ground and substance of the declaration be falsehood and malice  there be no instance of such averment in conspiracy that the party be innocent  or do not do the fact on which he be indict but the precedent be the other way  in a action for word as for say a man be a thief the plaintiff have no  occasion to aver he be not a thief and this case be analogous for after the  plaintiff have allege that the commission be false and malicious it will be  tautology to make such averment that he be not indebt c and this declaration  will have be good on a demurrer more clear it be so after a verdict judgement  for the plaintiff