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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. Baird was not found in his bailiwick. The declaration then alleged that the return was false in this, to wit, that the defendant as such under-sheriff took W. Baird, and had and detained him in his custody until he suffered him to escape as first aforesaid, and that the defendant as such under-sheriff re-arrested W. Baird, and had and detained him in his custody until he suffered him to escape, on the production to him of the certificate of the filing and registration of the deed, such deed not being and such certificate not being a certificate of a deed within the true intent and meaning of the 198th section of The Bankruptcy Act, 1861, and the other sections of that Act relating thereto, and being a deed and certificate of a deed which did not entitle W. Baird 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 the defendant suffered and permitted W. Baird to escape on the production of such certificate and on such ground and on no other ground whatever. That the alleged right to protection from arrest as mentioned in the return was in respect of the deed and such certificate and not otherwise. That the deed was not executed by the plaintiff, nor had he in any way assented to or approved of the deed. Whereby and by reason of the premises the plaintiff had been deprived of the said sum and interest and the costs of execution endorsed on the writ &c. Claim, 100/.

Third plea, as to the first arrest and so much of the declaration as related thereto. That the defendant suffered and permitted W. Baird to depart and remain out of his custody, and discharged him therefrom, and afterwards made such return to the writ upon and by reason of the production by W. Baird of such certificate as in the declaration mentioned, and that the certificate was and is in the words and figures following:-"The Bankruptcy Act, 1861. Certificate of Registration of Deed and Protection to Debtor. I, William Henry Whitehead, being the chief registrar of Her Majesty's Court of Bankruptcy, do certify that on the 26th day of December, 1862, a certain deed or instrument bearing date the 16th day of December, 1862, and made and executed by and between W. Baird, of &c., of the first part; A. Howell, of &c., and J. Hodgson, of &c. (trustees), of the second part, and the several other persons whose names and seals are set and subscribed to the said deed, being creditors of the said W. Baird, of the third part, being a deed or instrument of assignment of goods, household furniture and all other the personal estate and effects of the said W. Baird to the said trustees for the equal benefit of the creditors of the said W. Baird, was, on the 26th day of December, 1862, and at the hour of three o'clock in the afternoon on such day, brought to my office for registration, and was duly filed and registered pursuant to the provisions of The Bankruptcy Act, 1861. Given under my hand and seal of the Court at the Court of Bankruptcy, London, 1st January, 1863. (Signed Richard Bethell, registrar acting for the chief registrar. (Note.) This certificate is available to the said W. Baird for all purposes as a protection in bankruptcy." That before such arrest and detention all the condi

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tions to be observed according to the statute in that behalf, in order to make the deed valid and effectual and binding on all the creditors of W. Baird as if they were parties to and duly executed the same, had been observed, and notice of the filing and registration of the deed had been given, as in and by the statute in that behalf required and provided, and that the plaintiff, before and at the time of the date and execution of the deed, was a creditor of W. Baird within the true intent and meaning of the statute in respect of the debt in respect of which the judgment was recovered.

Fourth plea, as to the re-arrest and detention by the defendant of W. Baird and so much of the declaration as related thereto. The same as the third plea.

Demurrer to so much of the declaration as related to the re-arrest and detention of W. Baird and his escape therefrom. Joinder.

Demurrer to each of the pleas, and joinder.

The Bankruptcy Act, 1861, 24 & 25 Vict. c. 134. s. 198. enacts, "After notice of the filing and registration of such deed has been given as aforesaid, no execution, sequestration, or other process against the debtor's property in respect of any debt, and no process against his person in respect of any debt, other than such process by writ or warrant as may be had against a debtor about to depart out of England, shall be available to any creditor or claimant, without leave of the Court; and a certificate of the filing and registration of such deed under the hand of the chief registrar and the seal of the Court shall be available to the debtor for all purposes as a protection in bankruptcy."

The demurrer was argued in Michaelmas Term, November, 18, 21, 22, 1864.

Mellish, for the defendant, admitted that, after the decisions in Ilderton v. Castrique (a) and Ilderton v. Jewell (b), the deed to which the certificate referred could not be supported as a valid deed.

T. Henry Baylis for the plaintiff.-First. Sect. 198 of The Bankruptcy Act, 1861, 24 & 25 Vict. c. 134., makes a certificate of the filing and registration of "such deed," not "a deed purporting to be such deed," available as a protection; therefore in order to have that effect the deed must be a deed valid under sect. 192; and the deed set out, not being such deed, affords no justification to the sheriff for an escape or false return; Ilderton v. Jewell (b); Dewhurst v. Kershaw (c). In sect. 191 the words are not "every such deed," but "every deed whatsoever," and it has been decided that that section embraces deeds other than those which comply with and are framed under sect. 192; Hodgson v. Wightman (d). The term "available" has reference to limited protection only and cannot apply to the present case. The certificate may be intended to be available as an interim order of protection in bankruptcy; Wallinger v. Gurney (e).

Secondly. Some of the duties of the Registrars of the Court of Bankruptcy, under The Bankruptcy Act, 1861, are judicial; sects. 52, 58, 101. But the duty of the chicf registrar, with reference to the filing and registration of deeds under sects. 193, 194, is ministerial. He is bound to register a deed, brought to him

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purporting to be a deed within sect. 192, if accompanied by an affidavit and certain formalities pursuant to sect. 192 (4) (5) and (6) and sect. 195 are complied with. And the making of the certificate of filing and registration being a ministerial act, the sheriff is not bound to act upon it, and if granted erroneously and ultra vires, it is not a protection to him. It differs in this from a writ of capias ad satisfaciendum or fieri facias, which is a protection to the sheriff, even though the person arrested is entitled to privilege from arrest; Tarlton v. Fisher (a). If the giving of the certifi cate were a judicial act, the certificate would be good until reversed, but Judges have constantly refused to discharge out of custody on production of a certificate of an invalid deed. And it would be unreasonable for a sheriff to have power to discharge in respect of a certificate of an invalid deed when the Court or Judge has no such power.

Thirdly. It will be contended that the last clause in sect. 198 refers back to sect. 113 of The Bankrupt Law Consolidation Act, 1849, 12 & 13 Vict. c. 106, which enacts, that if any bankrupt, while protected by order of the Court, be arrested, he shall, on producing his protection to the arresting officer, be immediately discharged, and that if the officer detains him he shall be liable to a penalty. It will be said that upon the production of the certificate the sheriff was bound to discharge the debtor. But the last clause in sect. 198 of The Bankruptcy Act, 1861, means that the certificate shall be available before the Court of Bankruptcy. Sect. 113 of the former Act gives effect to protection from the Bankruptcy Court. The certificate of the registrar under the later Act refers to a different state of things. Also, sect. 113 of the (a) 2 Doug. 671.