1865. LLOYD V. HARRISON. Pollock C. B., in giving the judgment of the Court said, p. 489, "In our view of this case, it is not material to consider whether the bankruptcy was valid or not. A fiat had issued, under which Robinson had been by the proper Court declared to be a bankrupt; and we think that this was all which the sheriff was bound to inquire into." And the Court there read the words "such bankrupt" to mean "the party so adjudged bankrupt.” No doubt the Commissioner of bankruptcy had there adjudged Robinson to be a bankrupt, and the decision of the Court of Exchequer may therefore be said to have rested on the principle of law which protects sheriffs, &c., in obedience to an order of a Court having jurisdiction over the subject-matter, although the making of the order might in the particular instance be unauthorized. If, however, I am justified in reading the sections of The Bankruptcy Act, 1861, as substituting the registrar with reference to the registration and filing of the deeds of arrangement under the 192nd section, and granting the certificate thereof for the Commissioner acting in an ordinary bankruptcy granting protection, the case becomes at once an authority in favour of the defendant. The Commissioner in the one case and the registrar in the other are alike creations of statutes by which their functions are assigned, and it appears to me for the reasons already given that the functions of each are analogous to the extent which is necessary to make the certificate granted by the registrar an excuse for the sheriff in bonâ fide discharging a debtor who produced it. I agree that there must be a valid deed in order to give jurisdiction under the 197th and 198th sections of The Bankruptcy Act, 1861, to the Court of Bankruptcy to administer the estate of the debtor as if he had been adjudged a bankrupt, and to deprive the creditors of their rights against his person or property except as therein reserved. I cannot adopt a construction which would compel me to decide that, although the deed were invalid and therefore not binding on non-assenting creditors, their only remedy against the debtor's estate would be through the intervention of the Court of Bankruptcy acting under those sections. The Lord Chancellor, sitting in Bankruptcy in Ex parte Morrison, In re Clunn (a), appears to have given permission to a creditor to issue execution against a debtor's property on the ground that the deed registered was colourable and fraudulent against the creditors, but the point was not taken, nor were the cases at law cited. It was assumed that there was authority in the Court, notwithstanding the character of the deed, to permit execution to issue. Had the point been taken and the Lord Chancellor's attention called to the cases, and he had then decided that he had power sitting in Bankruptcy to give the leave to issue execution against the goods of the debtor, notwithstanding the badness of the deed, I should have yielded to that decision and considered this point concluded by authority. The single question, however, which we have now to decide is, whether a certificate of the filing and registration of a deed under the hand of the chief registrar and the seal of the Court, good on the face of it and disclosing no objection to its validity, can operate to excuse a sheriff who bonâ fide acts upon it, without notice of any objection to it and without the means of ascertaining any, although such deed be in (a) 33 L. J. Bank. 47; 10 Jur. N. S. 787. 1865. LLOYD . V. HARRISON. 1865. LLOYD V. HARRISON. fact invalid by reason of its not being in conformity with the provisions of the 192nd section. As regards the debtor, who was a party to the deed and who has imposed an invalid deed upon the registrar, it is only just and right that so far as he is concerned the certificate should not protect him from arrest or his goods from seizure, and therefore the Courts, in refusing to discharge a debtor arrested under a ca. sa. out of custody upon the production of such a certificate founded on an invalid deed, were fully justified. They had the real facts brought to their knowledge, and were quite right in concluding that the filing and registration of an invalid deed could give it no validity, and that the debtor was therefore not protected from arrest. The sheriff who is called upon to act on the instant has no means of ascertaining the contents of the deed, or whether the conditions of registration have been complied with, or that the certificate is of no effect. Surely he must, in the absence of all notice to the contrary, give credit to the certificate, being a document authorized and required by the statute to be given to the debtor, as affording sufficient evidence that a deed conforming to the provisions of the 192nd section has been duly filed and registered, and is therefore to be excused in acting under it as he could have done under a protection in bankruptcy. I am not at all prepared to decide that if the creditor could affect the sheriff with notice of the contents of the deed, or of the grounds and facts by reason of which the certificate could afford no protection to the debtor, the sheriff would not then be bound at his peril to execute the process of the Court; and although in actual practice the advantage to the sheriff may be small in enabling him to determine for himself upon the validity of such a deed, still the anomaly would be got rid of of requiring him to act in defiance of such a certificate without the means of knowledge whether it was good or bad. It is not, however, necessary to decide that question, nor whether the Court of Bankruptcy has power to cancel the registration of an invalid deed. I am strongly inclined to think that it has, but my judgment does not depend upon that suggestion, but upon the object which I conceive the Legislature had in view in the sections under consideration. No other question was made in the argument before us, and it was stated by Mr. Baylis that the declaration was drawn in this unusual form, setting out the facts specially for the express purpose of raising the real question between the parties. It is therefore unnecessary to consider any other point which might arise on the pleadings, the more especially as any amendment would have been permitted by the Court which might have been necessary in case any other point had been made. I am of opinion therefore, with great diffidence, seeing that my opinion differs from that of my Lord Chief Justice, that our judgment should be for the defendant. CROMPTON J. The question argued before us in this case was, whether a sheriff was liable in an action for an escape for having discharged a debtor taken on a ca. sa. upon the production by him of a certificate under the 198th section of The Bankruptcy Act, 1861, 24 & 25 Vict. c. 134., signed by the registrar and purporting that a deed according to the 192nd section had been duly registered. 1865. LLOYD V. HARRISON. 1865. LLOYD V. I think we cannot hold the sheriff liable for obeying what, appear to me to be the directions of the Act HARRISON. binding upon him. I think the effect of the enactment is that the certificate is to be the evidence of the execution of a valid deed upon which the sheriff is to act by discharging the party. The great hardship upon the sheriff, who cannot possibly know and has no means of ascertaining many matters connected with the deed, and who is called upon to act immediately upon the production of the document and receiving a copy, is obvious, and was pointed out on the argument as it has been in several cases of the same kind; and though there are many cases in which the sheriff has been put in great jeopardy where he could not know the true state of facts upon which he was called to act, in many of which cases he has been relieved by statute, still the situation in which the sheriff would be placed is, as observed by the Court in several similar cases, a strong reason for a construction being put on the enactment which would prevent so great a hardship upon him. The first branch of the 198th section protects the debtor's person and property from process where "such " deed has been registered, and I think that this must be taken to mean a deed valid both as to the fact of execution by the three-fourths of the creditors and as to the provisions in the deed. But there follows at the end of the clause a provision that the registrar's certificate of the registration of such deed shall be available for the debtor as a protection in bankruptcy. By the first branch of the 198th section the execution by the threefourths of the creditors of a valid deed prevents any process against either the body or goods being ever available to the creditor without the leave of the Court |