Definition
An action for falsely and maliciously suing out a commission of bankruptcy was a common law tort remedy available against a creditor who procured a commission of bankruptcy against a debtor without lawful cause and with malicious intent. Under the old English bankruptcy system, creditors could petition for — or "sue out" — a commission of bankruptcy, which was a formal proceeding that subjected the debtor to the bankruptcy jurisdiction. Where that commission was obtained without genuine grounds and driven by malice rather than legitimate debt enforcement, the debtor who suffered resulting harm could bring an action against the petitioning creditor for damages. The action was analogous in structure to malicious prosecution: it required proof that the proceeding was initiated without probable cause, that it was animated by malice, and that it had terminated in the debtor's favor.
Common Confusion
The phrase "suing out" does not mean filing a lawsuit in the modern sense. In historical practice, to "sue out" a writ or commission meant to apply for and obtain the formal issuance of that instrument from the appropriate authority — here, the Lord Chancellor's office. Researchers encountering this phrase should not read it as initiating civil litigation; it describes the procurement of an administrative or quasi-judicial commission. The action for falsely and maliciously suing out such a commission is itself the lawsuit, brought afterward by the aggrieved debtor.
This action should also be distinguished from the modern tort of wrongful use of civil proceedings and from malicious prosecution in the criminal sense, though all three share a family resemblance. The commission of bankruptcy context is entirely historical and belongs to a system abolished in England well before the twentieth century.
Core Elements
For a successful action, the plaintiff-debtor generally needed to establish:
1. Procurement — that the defendant creditor sued out or caused to be issued a commission of bankruptcy against the plaintiff.
2. Falsity — that the commission lacked a lawful basis, meaning the debtor was not in fact subject to the bankruptcy jurisdiction at the time (e.g., did not qualify as a "trader" under the act, or had not committed an act of bankruptcy).
3. Malice — that the creditor acted not to enforce a genuine debt but from improper or malicious motive.
4. Damage — that the plaintiff suffered actual injury as a consequence of the commission being sued out.
5. Termination — that the commission or proceeding ended in a manner favorable to the debtor, consistent with the general principle borrowed from malicious prosecution doctrine.
Why It Matters in Research
This term is functionally extinct as a live legal doctrine. No modern bankruptcy system — American or English — operates through creditor-petitioned commissions issued by a chancellor, so the specific action has no direct modern counterpart. Researchers encountering this phrase in historical sources are almost certainly reading materials from the eighteenth or early nineteenth century, when English bankruptcy law was structured around acts of bankruptcy, trading qualifications, and commissions issued under the Lord Chancellor's authority.
The critical research trap is treating this as merely a precursor to modern wrongful bankruptcy filing claims. While there is a conceptual kinship, the procedural machinery is entirely different. American federal bankruptcy law has never used a commission system, so American cases on this precise action are rare; when found, they typically arise from the colonial or very early republic period applying English common law principles, or they appear in treatises analogizing to English authority.
The Rapalje & Lawrence entry cross-references 2 Wilson 146, an English King's Bench report. Researchers pursuing this doctrine should consult English sources directly — Wilson's Reports, Burrow's Reports, and the early volumes of the Term Reports — rather than expecting developed American authority.
For researchers working in the history of debtor-creditor law or the development of malicious prosecution doctrine, this action is a useful case study in how courts extended the malicious prosecution framework beyond criminal proceedings into collateral civil and administrative proceedings. That extension remains contested in some American jurisdictions even today, making the historical lineage relevant to modern arguments.
Historical Dictionary Support
Rapalje & Lawrence treat this action primarily through cross-reference, directing the reader to 2 Wilson 146 without extended analysis. The entry appears as a subhead under "Commission of Bankruptcy," reflecting the organizational logic of nineteenth-century legal dictionaries that grouped terms by the underlying proceeding rather than by the nature of the cause of action. This placement can cause researchers using historical dictionaries to overlook the entry when searching under "malicious" or "false" headings.
The companion entries listed — "falsely and voluntarily" (in perjury indictments, citing 3 Yeates (Pa.) 407) and "falsely pretended" (in indictments, citing 2 Maule & Selwyn 379) — confirm that historical lexicographers treated "falsely" as a term of art requiring judicial construction in each distinct procedural setting. The adverb carried different weight and implications depending on context: falsity in a perjury indictment implicated subjective belief and oath obligations; falsity in suing out a commission implicated the objective existence of a legal basis for the proceeding.
Historical dictionaries generally do not analyze the damages recoverable in this action or the precise relationship between the bankruptcy commission system and the tort remedy. Researchers needing doctrinal depth should consult treatises on the history of English bankruptcy law rather than relying on dictionary entries alone.
Jurisdictional Note
This action belongs exclusively to the English common law tradition built around the pre-1869 commission of bankruptcy system. American law never adopted the commission mechanism, so U.S. courts addressing analogous claims have done so under malicious prosecution or abuse of process frameworks rather than under this specific heading. The term is jurisdictionally bounded to English law and to American courts citing English precedent in the historical period.