under the stat. of 2W.&M. c.5. without extending them to the new subjects of distress first granted by 11G. 2. c. 19. A power like the present ought at all times to be construed strictly, and more especially when it is sought to bring within it the growing crops of a person who is a stranger to the deed. Upon the whole, therefore, we think the present judgment should be reversed, and that judgment should be entered for the person making cognizance for a return of the cattle, goods and chattels which were taken by distress, and for that part of the distress only: with a judgment for the plaintiff for damages for taking and detaining the growing crops. Judgment accordingly. 1831. MILLER v. GREEN. and ALDERSON, Justices.-GARROW, VAUGHAN, and BOLLAND, Barons. ment in K.B. no writ of er TINDAL C. J.-This action was originally brought After judg in the Common Pleas, the judgment of which Court on writ of erAnother ror from C.P. was affirmed in the King's Bench on error. writ of error has now been brought to this court: but we are of opinion that this is not a case within the meaning of 11 G. 4. and 1 W. 4. c. 70. § 8. which applies only to cases originally commenced in the court to ror lies to the new court of error erected by 11 G. 4. and 1 W.4. c. 70. § 8. 1831. RICKETTS v. LEWIS. which the writ of error is directed. Were we to hold otherwise, a strange anomaly might arise; for a case originating in the Common Pleas, and reversed on writ of error in the King's Bench might come back from thence to be heard in this Court, before the judges of the Common Pleas and Exchequer; the effect of which might be, that the judges of the Common Pleas, with the assent of one of the Barons of the Exchequer, might affirm their own previous judgment, and reverse the judgment of the King's Bench delivered by that court as a court of error. The entry of the cause by the clerk of the errors was accordingly struck out. A writ of error sued out on 27 El. c. 8. after 12th Oct. 1831. is coram non judice. GURNEY v. GORDON. (In Error from the King's Bench. Before the same JUDGES. TINDAL C. J.-In this case the writ of error was sued out on the old statute 27 El. c. 8. and has been returned under 11 G. 4. and 1 W. c. 70. § 8. which erected the present Court of Error. The suit, therefore, is brought coram non judice. The entry was struck out accordingly. (In the Exchequer of Pleas.) BALME and Others, Assignees of BANKART and BEN- TROVER for machinery, with counts on a conversion before and after the bankruptcy. The general issue was pleaded by all the defendants. Hutton severed in pleading from the others, as did also Jewison and Ingham. At the Yorkshire Summer assizes in 1829, a general verdict was found for the defendant Hutton, and against the defendants Messrs. Wood. A special verdict was found as to the liability of Jewison and Ingham as chief and deputy bailiffs of the honor of Pontefract, having the execution and return of all writs in that liberty as follows. Goods were seized and sold under a fi.fa. by a chief bailiff of a franchise, having sole execution of writs therein, after an act of bankruptcy committed by the defendant, but without knowledge thereof and before the commission issued. Held that trover would not lie by the assig- the chief bai Bankari and Benson, trading in partnership within the honor of Pontefract in the county of York, were in debted to the defendants, the Messrs. Wood, on 27th October 1825, in a sum of money exceeding 3500l. for wool sold and delivered; and upon that day, at the request of the said Messrs. Wood, executed a warrant of attorney for securing that sum, and such further advances as in the whole should amount to a sum not exceeding 50007, which warrant of attorney was filed within 21 bankruptcy. days from the date thereof, pursuant to 6 G. 4. c. 16. and the deputy judgment by nil dicit was entered up thereon on the 14th November following. On 31st December 1825, the said Bankart and Benson committed an act of bankruptcy. On the 25th January 1826, the defendant Ingham, Jewi Secus as to bailiff who had taken in demnity from 1831. BALME and Others, 1. HUTTON and Others. son then being chief bailiff of the honor of Pontefract, within which honor he has the execution of all writs and appoints his own deputies, from whom he takes bonds with sufficient sureties to indemnify him from their acts, by virtue of a warrant directed to Jewison and his deputy Ingham, by the defendant Hutton, the then sheriff of the county of York, founded on a writ of fi. fa. issued at the suit of the defendants Messrs. Wood against the said bankrupt under the judgment aforesaid, indorsed to levy 15217. 12s. 10d., besides, &c. seized in execution certain machinery and utensils of the said bankrupts, in a mill occupied by them at B. and remained in possession under the same warrant. On the same day a valuation of the said machinery and utensils, together with the said bankrupt's tenant right in the said mill was made by the defendant Ingham, amounting together to the sum of 14857.; and the said machinery and utensils, and tenant right, were on that day purchased at such valuation from the said Ingham acting on behalf of the said chief bailiff, by one Barker, a clerk or bookkeeper of the said Messrs. Wood; but no money was paid by him or them to Ingham, except the sheriff's poundage and other costs of the levy. Immediately upon the sale Barker took possession of the mill, machinery and utensils, on behalf of Messrs. Wood, and retained possession until the 17th February following, when the machinery and utensils were sold by public auction for the sum of 9647. 14s. 6d. the tenant right in the said mill remaining unsold, but being of little or no value, and the proceeds of such sale were paid over by Barker to Messrs. Wood. On the day of the sale to Barker, Messrs. Wood agreed to indemnify the defendant Ingham from any action for making the levy, and a bond of indemnity was afterwards executed. On the 21st February 1826, a commission of bankrupt issued against Bankart and Benson, under which they were declared bankrupts on the 24th day of the same month. Neither the sheriff nor the chief bailiffs, nor Ingham knew or had any notice of any act of bankruptcy by Bankart and Benson, before the return of the writ of fieri facias. This case was argued in Trinity Term 1831, at great length. A general sketch of the arguments will be sufficient in consequence of the great minuteness with which the judgment reviews the leading authorities. Starkie for the plaintiffs, (J. Williams with him)-The plaintiff's proofs in support of an action of trover being confined to property and conversion, a sheriff who deals with property affected by a previous act of bankruptcy, is not excepted from the operation of that rule of evidence. His risk in so doing without being able to discover the event which has conferred the property on the assignees, is no greater than that of a bonâ fide purchaser from the bankrupt at a period beyond the two months allowed by 6 G. 4. c. 16. §. 81. A servant who does an act apparently legal by order of his master and for his benefit, and who in the event incurs personal liability for an illegal act, might equally urge hardship; Perkins v. Smith. (a)— [Bayley B. On that special verdict the servant must be taken to be a pure volunteer, for the master's order cannot be inferred.-] If the order was express, as e. g. to go and receive goods from another, the hardship would be the same on both. Phillips v. Thomson (b) is opposed to Bayly v. Bunning (c), which with Cole v. Davis, (d) Letchmere v. Thorowgood (e) was reconsidered in Cooper v. Chitty, (f) a case which goes on general principles, and cannot be supported on the ground of notice to the sheriff. (b) 3 Lev. 193. (a) 1 Wils. 328. (e) 3 Mod. 236. 1 Show, 12. Comb. 123. (c) 1 Lev. 173. (f) 1 Burr. 26. 1831. BALME and Others v. HUTTON and Others. |