Lloyd against Harrison
| Jurisdiction | England & Wales |
| Judgment Date | 25 February 1865 |
| Date | 25 February 1865 |
| Court | Court of the Queen's Bench |
English Reports Citation: 122 E.R. 1111
IN THE COURT OF QUEEN'S BENCH AND THE EXCHEQUER CHAMBER
Affirmed in Exchequer Chamber, L. R. 1 Q. B. 502; 35 L. J. Q. B. 153; 14 L. T. 799; 14 W. R. 737; 12 Jur. N. S. 701. See Staffordshire Joint Stock Bank v. Emmott, 1867, L. R. 2 Ex. 224; Ames v. Colnaghi, 1868, L. R. 3 C. P. 363; Rossi v. Bailey, 1868, L. R. 3 Q. B. 627; Hargreaves v. Armitage, 1868, L. R. 4 Q. B. 146; Ames v. Waterlow, 1869, L. R. 5 C. P. 63; Allen v. Carter, 1870, L. R. 5 C. P. 419.
lloyd against harrison. [Saturday, February 25th], 1865.-Sheriff. Liability for escape and false return. Re-arrest. Protection under Bankruptcy Act, 1861, 24 & 25 Viet. c. 134, s. 198. Invalid deed of assignment. Certificate of registrar.-1. Case against the defendant as under-sheriff, acting after the death of the sheriff, for an escape and false return. The declaration stated that a ca. sa. on a judgment recovered by the plaintiff against W. B. was on the 17th December, 1862, sued out and directed to the sheriff; that W. B., on the 16th December, 1862, entered into a deed of assignment, which was set out. That after the delivery of the writ an entry was made of the deed by the chief registrar of the Court of Bankruptcy in a book kept for such registration, and a copy of such entry was published in the Gazette, pursuant to the Bankruptcy Act, 1861. That by a certificate under the hand of the chief registrar and the seal of the Court, he certified that the deed was duly registered pursuant to the provisions of the Act, and that such certificate set forth the nature and effect of the deed ; that the writ was delivered to the defendant, and he took W. B. and detained him in custody, but suffered him to escape and remain out of his custody until he re-arrested him, after which he again suffered him to escape, and made a false return that W. B. was entitled to protection from arrest under the writ by virtue of sect. 198 of The Bankruptcy Act, 1861, 24 & 25 Viet. c. 134. The declaration then alleged that the return was false, in that the defendant suffered W. B. to escape as first aforesaid, and that he re-arrested him and suffered him to eacape upon the production of the certificate of the filing and registration of the deed, which certificate and deed were not within sect. 198 ; and that the plaintiff had not executed or assented to the deed. Third plea, to the first arrest, and so much of the declaration as related to it, that the defendant discharged W. B. out 1112 LLOYD V. HAKRISON 6 B. & S. 37. of his custody, and made such return to the writ upon the production by him of iuch certificate, which was set out, and at the foot of it waa the following note: "Thi certificate is available to the said W. B. for all purposes as a protection in bankruptcy." The plea then averred that the deed waa valid and binding on all the creditors of W. B. as if they had executed it. Fourth plea, to the re-arrest and so much of the declaration as related to it, the same as the third plea. On demurrer to so much of the declaration as related to the re-arrest, and on demurrer to the pleas:--(I.) Held, per Crompton, Mellor and Shee JJ., Cockburn C.J. dis-seutiente, that the sheriff was justified in discharging the debtor on the production of the certificate, although the deed after-[37]-wards turned out to be invalid, and therefore was not liable to an action for escape.-(2.) Per Shee J., and semble, per Cromptou J., that the false return without damage was not a substantive cause of action.-(3.) Conceasum, that the breach for the second escape was not a cause of action.-(4.) Semble, per Crompton J., that the statement in the plea that the deed was valid did not make the plea bad.-2. Semble, per Mellor J., that the Court of Bankruptcy have power to cancel the registration of an invalid deed.-3. Quaere. Whether the registration of a deed by the registrar of the Court of Bankruptcy, under the Bankruptcy Act, 1861, 24 & 25 Viet. c. 134, s. 198, is a judicial or ministerial act1? [Affirmed in Exchequer Chamber, L. E. 1 Q. B. 502; 35 L. J. Q. B. 153; 14 L. T. 799 ; 14 W. E. 737 ; 12 Jur. N. S. 701. See Staffordshire Joint Stock Bankv. Emmott, 1867, L. E. 2 Ex. 224; Ames v. ColnagU, 1868, L. E. 3 C. P. 363 ; Rossi v. BaiUy, 1868, L. E. 3 Q. B. 627; Hargreaves v. Armitage, 1868, L. E. 4 Q. B. 146; Ames v. Waterlow, 1869, L. E. 5 C. P. 63; Allen v. Carter, 1870, L. E. 5 C. P. 419.] The declaration stated that the plaintiff on the 17th December, 1862, in the Court of Exchequer at Westminster, by the judgment of that Court recovered against W. Baird 291. 5s. 10d., and thereupon the plaintiff, on the 23rd December, 1862, sued out of that Court a writ of capias ad satisfaciendum upon the judgment directed to the sheriff of Montgomeryshire, whereby Her Majesty commanded him that he should omit not by reason of any liberty in his county, but that he should enter the same and take W. Baird and him safely keep, so that he might have his body before the Barons of the Exchequer at Westminster immediately after the execution thereof to satisfy the plaintiff the sum of 291. 5s. lOd. which he had then lately in that Court recovered against W. Baird, whereof he was convicted, together with interest &c., and have there then that writ, which writ was endorsed with a direction to the sheriff to satisfy 291. 5s. lOd. and 21. 12s. for costs of execution, and also interest on 291. 5s. 10d., at 41. per cent, per annum, from the 17th December, 1862, until payment, besides officer's fees and all other legal incidental expenses. That John Lomax, Esq., before the issuing of the wrib and during the time of his shrievalty, and before the expiration or determination of and during his year of office, and before he was lawfully superseded, and whilst he was the sheriff of Montgomeryshire, on the [38] 2nd September, 1862, died, and that the defendant, as and being the under-sheriff by him duly appointed, did continue in his office, and execute the same and all things belonging thereto in the name of the deceased sheriff until at and after the execution and return of the writ, and before another sheriff waa appointed or sworn pursuant to the provisions of stat. 3 G. 1, c. 15. That W. Baird made and entered into the deed hereinafter mentioned, bearing date the 16th December, 1862. [The deed which waa set forth was an assignment by W. Baird of his goods, household furniture, and all other his personal estate and effects, to trustees for the benefit of such of his creditors only as should execute or assent to it; and alao contained provisions which rendered it invalid as riot conforming to the provisions of sect. 192 of The Bankruptcy Act, 1861, 24 & 25 Viet. c. 134.] That after the delivery of the writ to be executed, to wit, on the 26th December, 1862, an entry of such deed was made by the chief registrar in a book kept exclusively for the purpose of such registration, and a copy of such entry was, on the 30th December, 1862, published in the London Gazette, under the provisions of the 193rd section of The Bankruptcy Act, 1861. [A copy of the entry was set forth.] That afterwards, to wit, on the 26th December, 1862, by a certificate given under the hand of the chief registrar of the Court of Bankruptcy and the seal of that Court, the chief registrar certified, that on the 26th December, 1862, a certain deed (being the deed above set 6 *. ft 8. 3. LLOYD V. HARBISON 1113 forth), bearing date the 16th December made and executed by and between the above mentioned parties thereto, not including the names of the creditors, was, on the 26th December, and at the hour of 3 o'clock in the afternoon on such day, brought into the registrar's office for registration, and was duly registered, pursuant to the [39] provisions of The Bankruptcy Act, 1861, and the note thereto appended. " Note. -This certificate is available to the said W. Baird for all purposes as a protection in bankruptcy." That such certificate set forth the nature and effect of the deed. That the defendant, after the death of the sheriff, and whilst he so continued in his office and executed the same, to wit, on the 23rd December, 1862, caused the writ so endorsed to be delivered to the sheriff of Montgomeryshire to be executed by the defendant as such under-sheriff pursuant to the statute, and the defendant as such under-sheriff then became and was answerable for the execution of the writ pursuant to the statute. And tbe defendant, as and being such under-sheriff, on the 2nd January, 1863, by virtue of such writ, took W. Baird, and had and detained him in the custody of the defendant as such under-sheriff, in execution for the sura and interest so endorsed on the writ, and for the costs and expenses, until the defendant as such under-sheriff, without the consent or will of the plaintiff and without any legal cause or authority, voluntarily suffered W. Baird to escape and remain out of his custody, and so to remain till the following day, to wit, the 3rd January, when the defendant, as and being such under-sheriff, to wit, on the 3rd January, by virtue of such writ, again took and re-arrested W. Baird and had and detained him in the custody of the defendant as such under-sheriff in execution for tbe sum and interest so endorsed on the writ, and for tbe costa and expenses, until the defendant as such under-sheriff, without the consent or will of the plaintiff, and without any legal cause or authority, voluntarily again suffered W. Baird to escape out of his custody; and the defendant, as being such under-sheriff and in the name of the sheriff, falsely returned to the Court upon the [40J writ that W. Baird was, at the time of the delivery of the writ to him and still was, entitled to protection from arrest under the writ within the true intent and meaning and under and by virtue of the 198th section of The Bankruptcy Act, 1861, and the other sections of the Act relating thereto, and that W...
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