The King, in Aid of Reed and Others, v Hopper and Others, Assignees of Mowbray & Company
| Jurisdiction | England & Wales |
| Judgment Date | 01 February 1817 |
| Date | 01 February 1817 |
| Court | Exchequer |
English Reports Citation: 146 E.R. 332
IN THE COURT OF EXCHEQUER
the kino, in aid oi ' eked and oteckkh, /;. hoitiok and others, Assignees of Mowbray & Co. (Saturday, 1st February 1817.-A deed of bargain and sale, enrolled under the statute, held to have been rightly enrolled as of the day when it was brought into the Itirolment Office, although delivered to a porter in attendance there after office hours, and not minuted by the clerk, or in fact received by him, till two days afterwards.-The endorsement by the clerk of the enrolments of the clay of the inrolinent, by way of date, is a part of the record, and cannot be averred against; nor is evidence admissible to shew that it was in fact enrolled on some other day ; and that although the date be written on an erasure. The defendants having put in a claim to the property seized under this extent in aid, as assignees of the bankrupts, bad pleaded, that Mowbray & Co. being traders, had become bankrupt, and that afterwards, and before the issuing of the writ of extent, and l efore the 24th of July (the teste thereof), to wit, on the ~2'2d July, the commissioners did bargain and sell, &c. the effects, &c. of the said bankrupts, to Henry Page, the provisional assignee; which said indenture of bargain and sale was before, &c. (on said 2A1 July,) in due manner enrolled in His Majesty's High Court of Chancery. Without this, that certain of the bankrupt partners wore on the 2 ttb July; seized and'possessed of the several freehold and leasehold estates mentioned in the schedule annexed to the inquisition as therein supposed; wherefore they prayed judgment and restoration. Replication taking issue. [496] There were, therefore, three issues to be tried : 1st, Whether the bankrupts were seized and possessed of the freehold and leasehold premises mentioned in tho schedule: 2clly, Whether the lirm had become bankrupt: .'idly, Whether tho commissioners had, by bargain and sale, duly enrolled on the 2Ud July, before the testo of extent, bargained and sold to Pago the provisional assignee. On. the trial before Mr. Baron Ltichards, at the sittings after Easter I81(i, a verdict was given for the defendants, absolutely, on the second issue, subject to the opinion uf the Court on tho first and third ; and that depended on whether a certain deed of assignment had been, in point of law, enrolled, or not, on the day on which it had been brought to the office. A rule was consequently granted in the following Trinity Term, calling on thu prosecutors of the extent, to shew cause why a verdict should not be entered accord-ingl^t f1' the defendants on those issues. Tuesday, 28jth January. -Mr. Llaron Richards now road his report of the evidence ijivoii on the trial, from which it appeared in sulxstance, to have been proved, that the deed of bargain and sale was taken to the Inrolinent Office tor the purpose of being enrolled, on Saturday the '2:M of July, after the appointed office-hours (from ten till three) and delivered to tho porter; that it was the custom of the office, for the porter (who was entrusted with the key for that purpose) so to [497] receive-such deeda after the clerks had left the office, who was paid a fee of one shilling with every such deed delivered to him; that whenever a deed was so left, it was thu course to make a minute of the day, which was afterwards made the date of tho enrolment, but such minute is not made by the porter at the time it comes in, bub afterwards by the clerk; that if search had been made at the office for the deed, on 3 PRICE, 498. THE KiNG 1\ HOPPRR 333 Saturday evening or Monday morning, before the arrival of the clerk, it would have been forthcoming for inspection ; that the deeds are not usually in fact enrolled, nor the certificate of inrolmeiit made out, till several days after the deeds come into the office. It had happened, in the present case, that the clerk, on coming to the oftioe on Monday morning (the 24th), finding the deed on his desk, had entered it in his mipute book us having been brought in on tbe 24th, and it was afterwards enrolled as of the 24tti; but discovering the mistake on being informed by the porter that it had been brought in on Saturday the 22d, ho altered it to the 22d, accordingly, by eniising the "4th "and writing the "2d." The certificate was not written till some days after the 24th, and the clerk had altered the certificate which he had made originally, purporting that the deed had been enrolled on the 24th, to the 22d, in the same manner. It was also proved, that on the deed being delivered to the porter by the clerk of the solicitors to the commission, the porter, in his presence, opened the door of the office, and took it in and laid it on the [498] desk of the derk of the enrolments according to his usual practice. Dauncey, Walton, and Littledale now shewed cause. They contended that what had been done on the 22d could not be considered as an enrolment of the deed in question under the act, nor as being tantamount to it;-that some authentic minute, at least, should have been made of the deed having been brought in by some responsible person having authority to do so:-that the act of enrolment was a solemnity requiring every due formality to be observed in order to render it complete and availing:-that the mere carrying a deed to the office and delivering it to a Porter there, could not be regarded as an enrolment under the statute, or the object of it would be often defeated. Every enrolment was required to be on parchment. Com. Dig. Bargain and Sale, B. 0. 2 lust. 073. Lill. Fr. Reg. p. 89 (l ) C. They submitted also that as it was in evidence, that there were well-known hours appointed for attendance at the oftice, for the purpose of business, it was the duty of persons interested in the iurolmeut of deeds to bring them, during those hours, and it necessary to see that they were actually enrolled, or at least minuted, or that something wejfe done which might be considered a beginning to enrol, and that if they did not they must be content to lose the benefit of it. They further contended that if what had been done on the 22d was not a clue enrolment, the Crown was not concluded by the certificate of the date of tbe [499] present enrolment, but were entitled to go into evidence of the circumstances, to shew notwithstanding the indorsement by the officer, that the deed had been enrolled on the 24th in fact, and not on the 22d, and that it had been originally certified as having been enrolled on the 24th of July ; for that as the date, at least, was no part of the record, it might be averred against, and proof would be admissible, that the alleged day of the date was not the true one;-that this was not a judicial record, but merely ministerial, and ought not to be held to be conclusive as against those who might be interested in falsifying it;-that the object of recording the existence of the deed was not such a one as necessarily precluded all right to question the time of the enrolment, which they submitted was no part of the record itself as forming the date : and that they illustrated by the fact of its being pleaded as matter in pais, which they insisted was an admission by the other side, that it was not a conclusive record, for in that case it must have been pleaded with a prout patet; or it would be ground of motion in arrest of judgment; the only fact on record being that the deed had been enrolled. So in Hynde's case (4 Co. Rep. 72), the Court held that the time of an enrolment shall be tried per pais, Lill. Pi', ixeg. p. 89 (4) II. And to the same point they cited Holland v. Domie (Sav. Hep. 91), where the whole question at issue was the time of the enrolment. In Buller's IS'isi Prius, 6 edit. p. 229, it is said a tine to be proved with proclamations [500] must be examined with the roll, because the ;chirographer is not appointed by the statutes to copy the proclamations, and therefore hia indorsement on the back of the fine is not binding. So hero the clerk is not appointed or authorized by...
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