1832.

HUTTON and Others

BALME

and Others.

Easter term, 18 Car. 2, judgment was given for the defendant, he being an officer, obliged to execute the writ, who could not be aware of any acts of bankruptcy, or know that any of them would be acted upon." The report in Siderfin states, that the court as to the other points, viz. the character of the sheriff, were clear that the bailiff is not guilty of trover, for that the sheriff took back the goods lawfully.

During the argument of this case in the Court of Error, a doubt was thrown out whether the case of Bayly v. Bunning was an action of trover, and it was suggested that it might be an action of trespass, and so reconcile all the cases. The original roll has therefore been inspected, and it thereby clearly appears that the form of action was trover.

Mr. Justice LITTLEDALE.-It is admitted on all hands that, as far as relates to the judgment creditor, if he interferes in the sale, or receives the produce after the sale, and also as to the vendee of the sheriff or other officer, that the goods of the bankrupt are, upon the assignment to the assignees, vested in them by relation to the act of bankruptcy, so as to avoid all mesne acts and dispositions; and that, both upon the words of the acts of parliament, the uniform construction that has been put upon those acts, and the policy of the bankrupt laws: and therefore I do not think it necessary to advert to any authorities as to the ground or effect of relations either at common law or by any acts of parliament. The words of the act of parliament relating to bankruptcy are general, and make no exceptions as to the persons to be bound, only, indeed, that as the king is not named in them, they do not affect the crown till there is an actual assignment of the property. But it is contended on the behalf of the defendant, that he is to be exempted from liability for seizing and selling, if he has no notice of an act of bankruptcy; and he contends this upon two grounds-1st. That the older statutes of 33 & 34 Hen. 8. c. 4., 13 Eliz. c. 7., 1 James 1. c. 19., and 5 Geo. 2. c. 80., do not extend to the sheriff at all, and that the last statute, 6 Geo. 4. c. 16., does not increase the liability of the sheriff. The statute of Hen. 8. says, the sale by the

commissioners shall be good and effectual against bankrupts, their heirs and executors, as though the sale had been made by the bankrupt at his own free will and liberty. The 13 Eliz. c. 7. s. 2. says, the sale by the commissioners shall be good and effectual against (after an enumeration of various descriptions of persons) all other persons claiming by, from, or under the bankrupt, by any act had, made or done after he shall become bankrupt. The other acts of 1 James 1., 19 James 1. and 5 Geo. 2. as to the sale or assignment by the commissioners, all refer to the statute of Eliz., and no fresh powers are given to the commissioners, except that the 26th section of 5 Geo. 2. directs the commissioners to assign to the assignee for the general benefit of creditors who prove their debts. But I think that the words of the statute of Eliz. are sufficient to bind the sheriff; for though he does not claim as to any beneficial interest from the bankrupt, yet he claims to sell for the purpose of paying over the proceeds to the creditors of the bankrupt, and the person to whom he sells certainly claims under the bankruptcy; and it would be somewhat extraordinary if the sheriff, who sells under such circumstances, was to be excepted out of the operation of the statute. I may observe, that I am not aware that this point has ever been raised before, which, if there had been any ground for it, would surely have been done, considering the great variety of cases in which this subject has been agitated for the last 170 years. The statute of 6 Geo. 4. c. 16. is differently expressed from the former acts. In the 12th section it says, the commissioners are to assign in manner after directed; and then the manner is directed in the 63d section, which contains no such words as are contended to be a limitation of the person bound. But I do not consider whether this enlarges the power of the commissioners or not, because I think the former acts extend to sheriffs and other similar public officers.

But it is said the law will make an implied exception in favour of the sheriff, or other persons having the execution of process, because they are bound to obey the king's writ; and that it would be very hard to make him liable to an action when he acts according to the best of

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HUTTON and Others

V.

BALME and Others.

1832.

HUTTON

น.

BALME

and Others.

his judgment, and he has no means of ascertaining whether the debtor has or has not committed an act of bankruptcy. and Others With regard to his being a public officer, and that he is bound to carry the king's writ, there is no doubt but he is, and in the execution of that duty he ought to be protected. But the question is, does he act in obedience to the king's writ? That commands him to take the goods of A.; but how can they be said to be goods of 4. when A. himself has lost the power of continuing his property, and when the judgment creditor has no right to have them as the goods of A., and when the persons to whom the sheriff will sell have no such right? And the result therefore is, that instead of seizing the goods of A. he seizes the goods of the assignees. But it may be said they are the goods of A.; that he has acquired them; that he is in possession-treats them as his own; and no other person has yet acquired a right to them. But by the act of bankruptcy there is a sort of stamp or mark fixed upon them, which, though invisible at first, is afterwards brought into light by the commission, and attaches upon them so as to destroy all property in the bankrupt; which destruction of property, though not apparent at the time of the levy, afterwards, when the commission and assignment take place, operates in the same way as if the whole had been known at first. As to the hardship upon the sheriff, the general policy of the bankrupt laws makes many things apparently hard. It is very hard that if a man who owes a trader money, and pays it to him bona fide in the regular course of business, without any suspicion of an act of bankruptcy;—or if a bankrupt owes money, which he pays to a creditor in the ordinary course of business, he having no suspicion that an act of bankruptcy has been committed; or if a trader sells his estate after having committed a secret act of bankruptcy ; -that all these transactions should be rendered invalid by the general operations of the bankrupt laws; yet it is only by several particular acts of parliament, applicable to these various cases, that the various things which I have enumerated are corrected or modified. It is a hardship on a sheriff if he seizes goods of which the debtor is in possession

1

1832.

HUTTON and Others

v.

BALME

and apparent ownership, and it should turn out that the possession and apparent ownership was not fraudulent, that the sheriff should be liable; and yet the circumstances may be such as that the sheriff has no means of ascertaining the ownership. I think the hardship of a case ought not to and Others. form a principle on which the law should act. Society is so formed that many persons fill relations which appear to endure great hardships. If these hardships be of sufficient importance for the legislature to interfere, they will do so; or if brought before the court, they will frequently interfere, so as to relieve the sheriff, if the law will permit; and a late act of parliament, often called the Interpleader Act, in some degree acts as a relief to the sheriff; but that has nothing to do with his general liability.

But then the defendant says, that, by the constructions which have been put upon the general administration of the bankrupt law, public officers, who have to execute process, are protected in cases like the present; and that, though for a number of years back there are cases, and the practice, while these cases have been in force, has been against sheriffs, yet these cases and practice are not according to law, and that the earlier cases are contrary, and that they being the first that occurred after the bankrupt law was introduced, are to be regarded as the real existing law, not to be overturned by late decisions, and more particularly, as the defendant says that the whole of these modern cases and modern practice has been founded on misapprehension of the case of Cooper v. Chitty(a), and that in all the latter cases the former decisions have not been sufficiently brought before the court. The earliest case urged on the behalf of the defendant is Bayly v. Bunning (b), where the judges say, the sheriff's taking was lawful by virtue of the writ. But in Siderfin the reporter makes a query. For it is affirmed that the practice is, that the sheriff shall be found guilty, if the party was then a bankrupt. The special verdict has been examined in Bayly v. Bunning, and it appears that the sheriff had caused to be

(a) 1 Burr. 20; 1 Blac. 65; 1 Ken. 395.

(b) 1 Lev. 173; 1 Sid. 271.

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HUTTON and Others

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BALME

made the money of the goods, chattels and monies of the bankrupt, but that they remained in his hands, and he had not sold or delivered them to the judgment creditor. And then it states a demand and refusal, and concludes with saying, that and Others. they are ignorant whether the taking was lawful. This special verdict is quite imperfect; there is no conversion found, and the question by the jury is, whether the taking was lawful, and therefore is such an imperfect case; and the very slight way in which it is mentioned in the two reports, makes the case amount to very little, especially as one reporter states the practice to be contrary. And that may account for the language of the judges that the taking was lawful, and which may have been meant to apply to the original taking only, and not to say any thing whether, if the goods had been sold, the sheriff would be liable. This case, however, as far as it goes, is confirmed by what the court says in Philips v. Thompson (a). Turner v. Felgate was mentioned in Bayly v. Bunning; it is reported in 1 Levinz. 65, 2 Siderfin, 125, and has been considered as applicable to the present case. That was an action of trespass against the creditor, who had obtained judgment and levied under a fieri facias, and the judgment was afterwards set aside by rule of court; and it was there said the sheriff was not liable, because he acted in obedience to the king's writ; and that there is a difference between the party and the sheriff in that respect. There is not the least doubt about that. The sheriff is protected by the writ, and he need only plead that by way of justification to an action of trespass. But the party must plead the judgment. The sheriff is bound to obey the writ, but the party must show that he had authority to sue out the writ, and that authority is the judgment. If the party was not bound to show the judgment, it would be in the power of any man, who had obtained no judgment, to sue out any sort of writ of execution, for any amount that he thought proper. But that does not apply to the present case; here the writ directs the sheriff to take the goods of A., and if he does take the goods of A., it is immaterial to him whether there

(a) 3 Lev. 191.