XXVIII. VICTORIA.

former Act is directed against a wilful act of the officer in detaining a bankrupt. Further, it makes the detainer, not the arrest, illegal. In Norton v. Walker (a) the sheriff was held to be justified by stat. 5 & 6 Vict. c. 122. s. 23., the latter part of which is in nearly the same terms as sect. 113 of The Bankrupt Law Consolidation Act, 1849, 12 & 13 Vict. c. 106., in discharging a person arrested on the production of his summons signed as required by the Act; but the issuing of a summons in the course of proceeding to an adjudication in bankruptcy is a judicial act.

Fourthly. The protection under sect. 198 of The Bankruptcy Act, 1861, is final, and if the execution creditor has no power to set aside the certificate of an invalid deed the debtor will escape altogether. If the protection is only ad interim while the proceedings under the arrangement clauses are going on, and if proceedings are necessary to set aside the certificate of an invalid deed, the debtor would have an opportunity of getting out of the way, there being no hold upon him as in bankruptcy.

Fifthly. The difficulty in which the sheriff is placed is no answer to the action. Where the certificate is of a valid deed the onus is cast on the sheriff of ascertaining whether such certificate is available against the judgment in each particular case. The sheriff is often placed in a position of embarrassment. In some statutes enactments are introduced to protect him, e. g., stat. 7 G. 4. c. 57. s. 81., but in stat. 24 & 25 Vict. c. 134., the legislature has not enacted that a certificate purporting to be a certificate of a valid deed shall be a protection. [He referred to Tarlton v. Fisher (b) per Lord Mansfield;

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(a) 3 Exch. 480.

(b) 2 Doug. 671. 675.

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Wallinger v. Gurney (a), and the cases cited in Thomas v. Hudson (b).] The sheriff ought to tell the person arrested that he must apply to the Court out of which the process issued for his discharge, as the practice is in the office of the sheriff of Middlesex.

Mellish (R. G. Williams with him), for the defendant. --As to the first breach. Under sect. 198 of The Bankruptcy Act, 1861, 24 & 25 Vict. c. 134, the production of the certificate was a justification to the sheriff for discharging the debtor out of custody. It was not his duty to detain the debtor and inquire whether the deed was a valid and binding deed under the Act: he had a right to assume that the registrar had not given the certificate without being satisfied that the deed was good. It is not necessary to contend that the certificate is conclusive in this Court; but only that the sheriff was justified in acting upon the certificate as he would be in acting upon the production of a protection granted by a Commissioner, at least until the deed has been declared invalid by a superior Court. [Cockburn C. J. In bankruptcy the Commissioner proceeds judicially, and there is an adjudication by a competent Court. This is a new jurisdiction which cannot exist unless there is a valid deed.] But the registering of the deed under sect. 193 makes it primâ facie a valid deed and binding on creditors, as was said by Lord Westbury in Ex parte Brooks, In re Brooks (c). [Cockburn C. J. If the registrar under sect. 193 registers a deed which ought to be registered under sect. 194, he acts ultra vires, and the registration is inoperative. Mellor J. In Ex parte Morgan,

(a) 11 C. B. N. S. 182.

(b) 14 M. & W. 353; affirmed in error, 16 ld. 885.
(c) 33 L. J. Bank, 41, 42; 10 Jur. N. S. 621.

In re Woodhouse (a), Lord Westbury said, "I am of opinion, that even had the deed been registered in conformity with the 192nd section, this particular form of trust would have been inconsistent with its sustaining that character which, in my judgment, it is necessary that it should have to entitle it to the benefit of the 192nd section."] The certificate is to be available to the debtor for all purposes as a protection in bankruptcy; and by stat. 12 & 13 Vict. c. 106. s. 113., on the production of a protection the sheriff has no discretion, and is subject to a penalty for detaining the debtor.

The duty of the chief registrar in making the certificate, though performed ex parte, is judicial. He is to examine the deed and exercise his judgment as to whether it satisfies sect. 192 of stat. 24 & 25 Vict. c. 134., in which case an entry of an abstract of it is to be made under sect. 193, or whether it is a deed to be registered under sect. 194, which is directed against secret deeds. He is put in the same position as a Commissioner in granting protection. By sect. 198 the certificate "shall be available to the debtor for all purposes as a protection in bankruptcy:" and the granting of protection by the registrar under sect. 52 is a judicial act. [Cockburn C. J. The protection in bankruptcy is for a limited time; whereas this protection seems to be final.] The filing and registration of the deed being done in bankruptcy give that Court jurisdiction over the matter; and if the registrar doubts about the validity of a deed, he would apply to that Court for its direction. The non-assenting creditor is not without remedy, for the Court of Bankruptcy will inquire into the validity (a) 1 De G. J. & S. 288. 304.

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of the deed under sect. 197, and, if it is invalid, give leave to issue execution under sect. 198; Ex parte Brooks,

In re Brocks (a); Ex parte Morrison, In re Clunn (b).
[Cockburn C. J. In the latter case the application was not
to set aside the deed, but to allow execution to issue on
the ground that the trust deed was a fraud upon the
statute, in order to keep the debtor's property out of
the reach of execution. The validity of the deed depends
on mixed questions of law and fact, which the Court of
Bankruptcy might not be able to determine. Besides,
a creditor may not wish to go into that Court. If the
Legislature had given to the Court of Bankruptcy ex-
clusive jurisdiction over the corpus of the deed, we
should have been relieved of the numerous cases which
have been brought for our decision. Crompton J.
It
would have been better that the status of the debtor in
bankruptcy should be within the exclusive jurisdiction
of that Court, as probate granted by the ecclesiastical
Court is conclusive evidence of the title of the executor.
Unless the Court of Bankruptcy has power to decide
whether execution should go, it is left uncertain which
Court the sheriff is to obey. Cockburn C. J. If this
Court has decided that a deed is invalid, and that
execution against the debtor should go, may the sheriff
say that another Court has given a certificate of the
filing and registration of the deed which protects the
debtor from execution, and that he is liable to a penalty
if he detains him?] The same difficulty occurs in the
case of a protection in bankruptcy: this Court is not
bound by an adjudication of bankruptcy. [Melior J.
Suppose the certificate recites a deed which appears

(a) 33 L. J. Bank. 41; 10 Jur. N. S. 621.
(b) 33 L. J. Bank. 47; 10 Jur. N. S. 787.

from the recital to be invalid.] The sheriff must give credit to the certificate under the hand of the registrar and the seal of the Court. The debtor produces a certificate of the filing and registration of "such deed," if it is a certificate of a deed executed by the debtor. The cases shew that the sheriff is protected, and that an indemnity to him is to be implied, though not expressed in this statute; Saffery v. Jones (a), Thomas v. Hudson (b), Norton v. Walker (c), Wallinger v. Gurney (d). It does not follow that, because as between the creditor and the debtor the deed is invalid and the writ ought to be executed, the sheriff is liable for not executing it. If indeed the Court has decided that a particular deed is invalid, he should execute the writ, and the judgment of the Court would protect his officer from the penalty in stat. 12 & 13 Vict. c. 106. s. 113.

As to the breach for allowing the debtor to escape the second time. The sheriff cannot be liable for a second voluntary escape, inasmuch as after a voluntary escape he cannot arrest him again. "Escapes are of two kinds, either voluntary or negligent. In the case of a voluntary escape, the sheriff can never afterwards retake the defendant, but is liable to an action of false imprisonment if he do"; Watson Sheriff, p. 205, 2nd ed. [Cockburn C. J. asked Baylis whether he relied on the second breach. T. Henry Baylis. If it is not a substantive cause of action, it is surplusage or special damage which the plea should not have answered. Before stat. 5 & 6 Vict. c. 98. s. 31. the sheriff was liable to an action of debt in consequence of an escape,

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