1865. LLOYD V. HARRISON. action against the keeper of the Queen's Prison for an escape, he having released a prisoner on production by him of an order for his discharge obtained from a Commissioner of the Court of Bankruptcy, was decided on the same principle. The Court of Exchequer held that, whether the debt was or was not one from which the Commissioners had power to discharge the prisoner, the defendant was protected, being bound to obey the order of the Commissioner who was acting judicially in a matter over which he had jurisdiction. And in Wallinger v. Gurney (a), in which it was questioned whether an interim order of protection under stat. 5 & 6 Vict. c. 116. and 7 & 8 Vict. c. 96. was available for a debtor arrested on a ca. sa. for a debt contracted by him since the filing of his petition, Erle C. J. said, p. 191, "If there had been a doubt upon the construction of the statutes, the principle of the decision in Thomas v. Hudson (b), protecting the gaoler in obeying the plain words of the order for protection, would apply to a sheriff obeying the plain words of the order produced to him in this case." It is said there is a great difference, though granted by the same officer, between an adjudication in bankruptcy and a certificate under the 198th section, to which none but those who have conformed to the conditions of the 192nd section are entitled. But the adjudication in bankruptcy on which protection is granted is at most a provisional proceeding which, being obtained ex parte, has little but its name of a judicial character about it, whereas the filing and registration of a deed satisfying the conditions of the 192nd section (after notice thereof in the London Gazette) (a) 11 C. B. N. S. 182. (b) 14 M. & W. 353; affirmed in error, 16 Id. 885. and the certificate of the chief registrar under the 198th section are a final release to the debtor, and as effectual for the protection against creditors of his property and person as the certificate of conformity granted after his last examination to a bankrupt under The Bankrupt Law Consolidation Act, 1849, and the order of discharge granted to him under The Bankruptcy Act, 1861. They are in truth in the scheme of the arrangement clauses of The Bankruptcy Act, 1861, substantially the same thing, only that the release under those clauses is arrived at more quickly and in a way more satisfactory, because without the useless and in many cases undeserved torture to the debtor of repeated examination, on the instructions of a small minority of his creditors, and without waste to his estate, and with less injury to his prospect of re-establishing himself in business and credit. The case of Ilderton v. Jewell (a) has been cited in the course of the argument as opposed to the construction which, in justification only of the officer, Mr. Mellish asks us to adopt. I cannot see that it affects his argument. In Ilderton v. Jewell, which was an action. against bail commenced in the Mayor's Court for not rendering, in pursuance of the recognizance, one Louis Castrique or paying to the plaintiff the moneys which had been adjudged to him in a suit against Louis Castrique, the defendants pleaded the execution by Louis Castrique of a deed, certified by the chief registrar of the Court of Bankruptcy to be a deed in conformity with the conditions of the 192nd section; but which being set out appeared not to satisfy those conditions. On these pleadings the question was whether as against the creditor the debtor was entitled to protection. The (a) 14 C. B. N. S. 665; affirmed in error, 16 Id. 142. 1865. LLOYD V. HARRISON. 1865. LLOYD V. Under Court held that the deed was void and the plea therefore not an answer to the action, Mr. Justice Williams, HARRISON. p. 675, doubting whether even if the deed had been good the bail would have been exonerated. The Lord Chief Justice is reported to have said that the deed being void the certificate was also void. And so it was in the sense of being voidable and of no significance as between the creditor and the debtor, on whose immunity from arrest the defence of the bail was founded. the old system, a certificate of the defendant's bankruptcy and conformity was no answer to an action against the bail, their course being to render him, after which he applied to the Court for his discharge on affidavit setting forth that he had become bankrupt and obtained his certificate under the commission. The plaintiff was then entitled to an issue to try the validity of the commission and certificate, and if he could shew them to be invalid or improperly obtained, as was the case with the deed and its filing and registration in Ilderton v. Jewell, the application was refused; 1 Tïdd Pr. 9th ed., p. 292. That case does not appear to me to prove more than the correctness of the admissions on which Mr. Mellish bases his argument, and it is surely beside the question whether under the combined effect of the 198th section of The Bankruptcy Act, 1861, and of the 112th and 113th sections of The Bankrupt Law Consolidation Act, 1849, which latter sections were not even mentioned in Ilderton v. Jewell, the officer in this case was justified in discharging the debtor. In Dewhurst v. Kershaw (a), also cited for the plaintiff, the Court of Exchequer refused to discharge a debtor who had been taken on a ca. sa. on the ground that (a) 1 H. & C. 726. he had executed and registered a deed in respect of which, though invalid under the 192nd section, a certificate had been granted. It does not appear that the certificate had been produced to the officer, and it was unnecessary to consider the effect as respected him or his principal, the sheriff, of the latter part of the 198th section of The Bankruptcy Act, 1861, and its connection with the 113th section of The Bankrupt Law Consolidation Act, 1849. The Court refused to set aside its legally executed process in order to defeat, as between the creditor and the debtor, what it clearly saw to be, under the provisions of The Bankruptcy Act, 1861, the very right and justice of the case. In so doing upon a construction apparently of the words "after notice of the filing and registration of such deed has been given as aforesaid," in which I cannot concur, it upheld, when done, what the Court of Bankruptcy on the application of the creditor, must I think have allowed to be done. We are, as it seems to me, in no degree fettered by the decision of that case, or rather we are bound, without being overswayed by the dicta of learned Judges in cases not depending on the very point before us, to construe the Act, if we can, so as to make all its sections operative and consistent. The inconvenience of allowing the process of one of the superior Courts of law to be set at nought by a sheriff's officer under cover of a certificate which ought never to have been granted, and which may have been declared bad in the very judgment on which the process has issued, was, in the course of the argument, forcibly noticed by my Lord, without any entirely satisfactory answer on the part of the defendant to the objection which it suggests. The only answer that can be given 1865. LLOYD V. HARRISON. 1865. LLOYD V. HARRISON. is, that it is a mischief which has arisen from an imposition practised upon the chief registrar, or a misconstruction by him of the Act of Parliament, a misconstruction which, if my reading of the 198th section of The Bankruptcy Act, 1861, be right, might have been corrected by application to the Court of Bankruptcy for leave to execute the writ; and which, after the explanation of the arrangement clauses by the Lord Chancellor in Ex parte Morgan, In re Woodhouse (a), and the discussion in this and other cases, is not likely to occur again, whereas, if we held that the chief registrar's certificate, which, for the future, may be expected to be a safe guide to the officer, does not in this case protect him, he will in all cases in which it has been properly granted be uncertain whether to act upon it or not. It occurs to me further that the word "available" in the first part of the 198th section may have been used for the purpose of not interfering with the practice which enables the plaintiff, after he has signed judgment, to prepare his writ of execution, and get it sealed by the sealer of the writs on production to him of the postea and judgment paper, and that the intention was at this stage of the proceedings, and on production of the notice in the London Gazette, to give authority to the Court out of which the process issues to render it "unavailable" by staying the execution of it until leave obtained from the Court of Bankruptcy. The declaration also complains that the defendant falsely returned to the said writ "that W. Baird was, at the time of the delivery of the writ to him, and still was, entitled to (a) 1 De G. J. & S. 288. See also Ex parte Spyer, In re Josephs' Assignment, Id. 318. |