why say that the sheriff should not have gone on to a sale, after a full discovery that the goods belonged to a third person, (that is, the assignees,) if that discovery were immaterial? How, in commenting upon Cole v. Davies, could Lord Mansfield have said, that upon such a sale as there took place, (i. e. a sale before the commission,) conversion might have been as excusable as the taking, because he obeyed the writ, unless he had thought that, to make the sale by the sheriff a wrongful conversion, it was essential the sheriff should know of the bankruptcy at the time he sold? The hardship which he notices, if the sheriff were made a trespasser by relation, for taking goods where there had been a private act of bankruptcy perhaps many years before, applies equally if the sheriff is to be made a wrongdoer by relation, and therefore liable to an action of trover for selling goods; and how would his answer, that none of the reasons hold to justify him in selling the goods after a commission and assignment, be applicable, if a sale before the commission, and without any notice, would have been equally unjustifiable? How could he have made the observation, that there would scarcely ever be hardship upon the sheriff, where the taking and sale, or even the sale only, are subsequent to the assignment, had he had the notion in his mind that a sale before the assignment, before the commission, and before any knowledge of the act of bankruptcy, would make the sheriff liable to an action, to which his observations were directed? Does he conclude as if he had in his own mind, or meant. to convey any such notion? "The commission and assignment are both notorious transactions; the seizure here is after the act of bankruptcy, and therefore after the property was by relation vested in the assignees, but that was innocent and excusable, and the sheriff shall not be liable by relation as a wrongdoer. The gist of this action is the wrongful conversion, by the sale 1831. BALME and Others v. HUTTON and Others. 1831. BALME and Others V. HUTTON and Others. and false return, long after the commission and assignment." He relies, therefore, upon the notoriety of the commission and assignment, and upon their being prior to the sale, and admits that the seizing was innocent and excusable, and yet in the form of action which he was considering, an action of trover, an unwarranted seizure would make a wrongful conversion wherever an unwarranted sale would. It appears to us, therefore, to be clear, that the principle upon which Cooper v. Chitty was decided, was, that the sale by the sheriff was a wrongful act, and that the reason why it was wrongful was, because it was after the commission had issued, and therefore after the sheriff ought to have concluded that there had been some prior act of bankruptcy. We have stated more of the judgment than we should otherwise have done, because of a passage in Blackstone's report of the same case, and in deciding between his accuracy and that of Sir James Burrow, we thought it desirable that the tenor and scope of Lord Mansfield's argument should be observed. Mr. J. Blackstone's report (p. 69.) represents Lord Mansfield to have said, "But had the sale been immediately after seizure, still the sheriffs would have been liable:" as though Lord Mansfield had thought, that under a direction by the writ to make of the goods of Johns, &c. a seizure by the sheriff in ignorance would be excusable, a sale would not. But that this is a mistake in Blackstone, is, as it seems to us, clear, from what Blackstone represents to have been said by the Court in Timbrell v. Mills, Hil. 33 Geo. 2. and by the judgment of Lord Mansfield in Aldridge v. Ireland. (a) In Blackstone's Reports, in the margin opposite the passage in question, is this minute : "Timbrell v. Mills, contrà, Hil. 33 Geo. 2." and in the report of Timbrell v. Mills, Blackstone 205, upon refer (a) East. Term, 24th G. 3. cited 1 Taunton, 273. ence by counsel to the doctrine laid down in Cooper v. Chitty, the whole Court declared that it was allowed in that case, that if the sheriff levied the money, and paid it to the plaintiff before any commission issued, and without notice of the act of bankruptcy, he would at all events be safe. In Aldridge v. Ireland, there were two points; one, whether trover would lie against the sheriff for seizing and selling the goods of a bankrupt, under a fi. fa. against a bankrupt, the goods having been duly taken by the sheriff, and sold by him before the commission. The sheriff was in fact indemnified, and therefore this point was not material. It was afterwards, however, insisted upon. Lord Mansfield observed, "If this were really the case of a sheriff who had acted fairly under a writ, without notice of any act of bankruptcy, there are several rules established in Cooper v. Chitty for his protection; and if he be not indemnified, it may be a ground for a new trial, because the whole proceeded upon that supposition." Is it probable that Lord Mansfield could have held this language--had the passage in Blackstone been correct, and had Cooper v. Chitty really decided that a sale by the sheriff, whether with knowledge of bankruptcy or without, was equally a wrongful conversion? We therefore conclude that Cooper v. Chitty decided only that a sale by the sheriff, with notice of the bankruptcy, was a wrongful conversion by the sheriff, and a sufficient foundation for an action of trover; but it left the case of the sheriff, upon a sale without notice, as much protected as before. In Coppendale v. Bridgen and Another, (a) the distinction is again made between the sheriff and the execution creditor, and the sheriff is considered excused where the execution creditor would be liable. It is not a decision upon the point, it is only (a) Sheriff of Middlesex, Burr. 814. 1831. BALME and Others v. HUTTON and Others. 1831. BALME and Others v. HUTTON and Others. an authority from the dicta of the judges. It was an action against the sheriff as for a false return of nulla bona upon a fi. fa. against the goods of Debonaire. Debonaire was in prison for debt from the 2d of May to the 5th of July, on which day (i. e. 5th of July) a commission issued against him. In the interim, viz. 18th of June, the sheriff seized his goods under the fi. fa. in question, which issued 17th of June, and was returnable on the 26th. The return was not made till the 5th November, and as Debonaire was then unquestionably a bankrupt, and had been so by relation from the beginning of May, the Court considered the return true, but they nevertheless looked at what would have been the state of things, had the return been made at the return of the writ, viz. the 26th June, and what would have been the respective conditions of the execution creditor and the sheriff. Lord Mansfield said— "Had the sheriff returned on 26th June, that he had levied and paid over, he would have been excused, for he could not then have known that Debonaire would lie two months in prison, and was therefore under invincible ignorance as to that event; but plaintiff would have had no advantage, he would have been liable to refund, though the sheriff might have been excusable in paying him." Denison J. said, “Had he made such return, &c. perhaps he might have been justified, yet the plaintiff must have refunded;" and Wilmot J. added, "No doubt the assignees might have recovered the money from plaintiff.” This, though it is an authority, as far as it goes, in favour of the defendant, is by no means so strong as the other cases we have mentioned; and we only notice it, that it may not appear to have been overlooked, and to shew, that though the judges were clear there would be a relation back as against the execution creditor, they did not express a similar opinion as to the sheriff. The next case in order of time is Hitchin v. Campbell, (a) in which there certainly is an obiter dictum which may be considered as making against the sheriff, but it is an obiter dictum only, and by no means called for by the judgment given. It was an action by the assignees of Anderson, a bankrupt, against an execution creditor, for money had and received, to recover the amount of a levy upon a fi. fa. against Anderson. There were two questions-one, whether the action for money had and received lay against the execution creditor. The Court held it did. The other, whether a former verdict and judgment for the defendant and the sheriff, in an action of trover for these goods, was a bar. The Court held it was. Blackstone's Report, p. 829. represents De Grey, C. J. to have said, "Notwithstanding the transfer of the property by relation, the sheriff is certainly no trespasser by taking the goods in execution after the act of bankruptcy, and before the commission." It was so ruled in Letchmere v. Thorogood, in Comberbach and Shower, and in Cooper v. Chitty, Burr. 20.; but by selling, the sheriff converts the goods, and then trover is maintainable against the sheriff or his vendee, or the plaintiff in the original action." Wilson represents the Court to have said, "We are of opinion that the plaintiff having brought trover against the sheriff and the now defendant, (which action well lay,) have made their election, and are barred by their former verdict and judgment.” The only expressions which can be considered as bearing against the sheriff is that in Blackstone, "by selling, the sheriff converts the goods, and then trover is maintainable against the sheriff," &c. and that in Wilson, "which action well lay"-but we think it would be too strong an inference to draw from these expressions, that the sheriff was at all events liable, though he sold un (a) 3 Wils, 304. 2 W. Bla. 827. Lofft. 208. 1831. BALME and Others V. HUTTON and Others. |