1865. LLOYD v. HARRISON. but is now only liable to an action for damages. Cockburn C. J. How are the damages affected by the second escape? As soon as the first escape is admitted to be voluntary, the second breach is unnecessary.— It was then agreed on both sides that the averments in the declaration as to the re-arrest and detention of W. Baird and so much of the subsequent pleadings as related thereto should be struck out: T. Henry Baylis, stating that the declaration was drawn in an unusual form, in the nature of a special case, so as to raise the questions to be argued, and save expense to the parties.] T. Henry Baylis, in reply. Cur, adv. vult. There being a difference of opinion on the bench, the following judgments were now delivered. BLACKBURN J. read the judgment of SHEE J. We have in this case to decide whether the defendant, an undersheriff (acting as sheriff after the death of the sheriff during his year of office), was justified in discharging a debtor, whom he had arrested on a capias ad satisfaciendum, on production by him of a certificate, signed by the chief registrar of the Court of Bankruptcy, and sealed with the seal of that Court, that the debtor had executed such a deed as is mentioned in the 192nd and 198th sections of The Bankruptcy Act, 1861, 24 & 25 Vict. c. 134., and that the deed had been filed and registered, whereas in fact no such deed had been executed by him, and he was not entitled to the certificate which the chief registrar is by the latter of those sections empowered to grant. The question turns upon the construction of the 198th section, it having been determined by a series of cases in the Courts of law and equity, and by the Lord Chancellor in bankruptcy, that no deed touching the matters which are the subject of the 192nd section is binding on creditors who have not assented to it, to the effect of its being pleadable in bar of actions brought by them against a debtor, or of restraining the execution of final process against his person or goods, or preventing an adjudication against him in bankruptcy, unless it be a deed not open to objection on the ground of unreasonableness or inequality of its provisions as respects different classes of creditors, a deed which satisfies the express conditions of the 192nd section, and has been duly filed, registered and published as that section and the 193rd section prescribe. In all those cases the creditor and the debtor stood face to face upon their legal rights under the statute, the duty or liability of no third person under the provisions of the 198th section being in question. The debtor contended that the creditor was bound; the creditor denied that he was bound by a deed not executed by him, and to which he had not assented; and that issue was determined by the Court on its substantial merits, that is on the statutory validity or invalidity of the deed. It follows from those decisions, and is also plain from the enumeration of persons in the first few lines of the 197th section, that a debtor cannot entitle himself to have his estate administered under the jurisdiction of the Court of Bankruptcy, in the new and exceptional course for which that section provides, by the execution, filing and registration of any deed which, not being free from the objections before mentioned, and not satisfying the 1865. LLOYD V. HARRISON. 1865. LLOYD V. HARRISON. conditions of the 192nd section, is not binding on creditors who have not assented to it. The deed executed by the debtor in this case, not being such as to be binding on the plaintiff, a nonassenting creditor, or to deprive him of his right to proceed in the ordinary course of law, or in bankruptcy, he has a good cause of action against the defendant for allowing the debtor to escape, unless the defendant or his officer in so doing has acted in obedience to the express directions of the statute. The 198th section provides that "after notice of the filing and registration of such deed" (that is of such a deed as satisfies the conditions of the 192nd section) "has been given as aforesaid," no execution against the debtor's person or property, other than such as may be had by writ or warrant against a debtor about to depart out of England, shall be available to any creditor "without leave of the Court" of bankruptcy; "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." In the construction of this section much, as it seems to me, depends upon the true meaning of the words which override the whole of it "after notice of the filing and registration of such deed has been given as aforesaid." Do they mean "after the filing and registration of such a deed as is mentioned in the 192nd section and notice thercof given as aforesaid "? If so the restriction on the creditor's right to execute final process, and the authority of the Court of Bankruptcy to give leave to execute final process against a debtor's person or property, are limited to the case of deeds which satisfy the conditions of the 192nd section, and a non-assenting creditor has not under the 198th section, as respects process against the debtor's pro- (a) 33 L. J. Bank. 41, 42; 10 Jur. N. S. 620, 621. 1865. LLOYD V. HARRISON. 1865. LLOYD V. HARRISON. a deed satisfying the conditions of the 192nd section has been filed and registered, whether those conditions are or are not satisfied, no process is available to the creditor against the debtor's property or person without leave of the Court of Bankruptcy, and that in the authority to grant that leave is implied also authority to refuse it and to relieve a non-assenting creditor from the hindrance of a certificate to which its seal has been improperly affixed. In Ex parte Morrison, In re Clunn (a) the Lord Chancellor gave leave to a non-assenting creditor to issue execution, on the ground that a deed which had been registered under the 192nd section, and which satisfied the letter of the conditions of that section, was "a fraudulent attempt to distort the forms of law from the purposes for which they were intended." On grounds not materially different, as it appears to me, the plaintiff in this case, on finding that a deed not satisfying the conditions of the 192nd section, but registered and published in the London Gazette as a deed in respect of which they had been satisfied, was set up against him, might, instead of hurrying on to the difficulty which the latter part of the 198th section threw in his way, have applied for leave to issue execution, which leave in my judgment the Court of Bankruptcy had power to grant. ... Much also depends on the construction of the words in the second part of the 198th section, "a certificate of the filing and registration of such deed . . . shall be available." Do they mean "the filing and registration of such a deed as satisfies the conditions of the 192nd section, and a certificate of its having been filed and registered, shall be available"? or "a certificate that (a) 33 L. J. Bank, 47, 48; S. C. 10 Jur. N. S. 787. |