of Bankruptcy. The estate being in such case, by the provisions of the 197th section, subject to the jurisdiction in bankruptcy, this immunity from process against the goods or person would be final, subject to the leave of the Court of Bankruptcy, and would not be in the nature of an interim protection. According to this provision, however, the debtor would only be protected where the deed is valid as to its provisions, and has been executed by three-fourths of the creditors, of neither of which matters can the sheriff in general have any knowledge. The Legislature, however, at the end of the section, makes a further provision, and proceeds to enact that the certificate of the registrar that such a deed so executed has been registered shall have the effect of a protection in bankruptcy for the person of the debtor. Great difficulty arises from the mode of legislation by reference to the provisions of former Acts of Parliament, which frequently are framed so as not to fit or be adapted to the nature of the case,—the subject of the new enactments. The protection in bankruptcy was to be available whilst the bankrupt was going to and returning from the Court for examination, and for such further time as the Commissioner should endorse on the summons, and the sheriff would see at once, from the summons and from the extended time, for how long the bankrupt was protected. It was strictly an interim protection. The corresponding protection under the new Act, however, shews no limit as to the time during which the debtor is to be protected, and no mode is pointed out by the statute by which that protection, on its face a lasting one, could be taken away from the debtor; and there certainly would be great difficulty, as suggested on the argument, if a Court of law held the deed 1865. LLOYD V. HARRISON. bad when pleaded in bar, and an execution went against the person of the debtor, and the debtor were to produce the certificate as a statutory protection. It may be that the Court of Bankruptcy might have the power to interfere with the registration of the deed and of ordering the cancellation of the document, for though the Court of Bankruptcy would have no power of dealing with the estate in the case of an invalid deed, it might still have the power of cancelling the registration, the act of its officers, in like manner as the Lord Chancellor had formerly the power of superseding a commission of bankruptcy, or the protection might possibly be deemed to enure only whilst the proceedings under the arrangement were going on in analogy to the bankruptcy protection. When the Court of Bankruptcy gives leave to execute process, as in the case of a debtor not paying his composition, the sheriff might be informed, either by notice or on the face of the process, that it was by order of the Court, and in every case it may be that a formal notification of the deed being bad or having been held bad might operate so as to compel him to proceed. However this may be, I think that the meaning of the Act and of the reference which embodies the former enactments as to the protection in bankruptcy is that the debtor shall be protected in a certain state of facts, and that the sheriff shall act on the certificate as the evidence of such facts. But it is said that there is a great difficulty in the way of this construction by reason of the decisions by which the Courts have held that the meaning of "such," in the second branch of the 198th section, is "a valid deed," and that if not valid the certificate is of no more value than the deed, and so that the debtor is not protected. Certainly it has been held by the Courts on motions for discharge, and I believe by all the Judges at chambers before whom applications for discharge have been brought, that the debtor has no right to be discharged if the deed be invalid; and, as sect. 198 states that the certificate is to be available to the debtor, it is said that it can only be available to the sheriff if it be such a certificate as is available for the debtor. In Thomas v. Hudson (a), however, the Court of Exchequer Chamber held the officer protected, although they assumed for the purpose of the judgment that the Commissioners of Bankruptcy had no power to discharge the debtor from the damages for the tort, to which on that supposition he clearly remained liable; and in other cases under the Bankruptcy Acts the whole jurisdiction might be said to fail where there was no act of bankruptcy, just as in the case where the deed, the foundation of the quasi bankruptcy, turns out to be invalid. But for the decisions under the present Act of Parliament it might have been doubted whether the certificate was not intended by the Legislature to be a protection to the debtor even where the deed turned out to be invalid, they apparently thinking that such a protection as an interim protection in bankruptcy would be applicable to the new case of a deed which is to have the effect of creating a kind of private bankruptcy. The same construction might be given to the word "such" in both branches of the clause, by construing the earlier part to mean that after such deed, i. e. a valid deed, was registered, the person and property should be exempt from process except by leave of the Court, and by construing the latter branch as saying that the certificate. (a) 16 M. & W. 885. 1865. LLOYD V. HARRISON. 1865. LLOYD V. HARRISON. of "such" a deed being registered, that is the certificate the sheriff may be protected by the certificate, on the evidence of which he seems compelled to act without the means of or the time for inquiry. I do not think that we are bound by any authority to hold that the officer of the Court acting under the express direction of the Act of Parliament is not excused. He acts under a document which, whether judicial or not in the strict sense of the word, is a document which is the act of the Court just as much as a writ which protects the sheriff. It is sealed with the seal of the Court, and bears the signature of the registrar, and this authentication seems intended as a notification to the sheriff, who would otherwise be placed in so much difficulty. Whether strictly judicial or not the document is declared by the Legislature to have the effect of a protection in bankruptcy, which has been held judicial. I own that I am at present inclined to doubt whether the Legislature did not intend the certificate to be a temporary protection, at least to the quasi bankrupt, as well as imperative upon the sheriff, but giving full effect to the decisions that the debtor is only to be discharged or protected if the deed be valid, still the Act of Parliament, if the deed turn out valid, clearly gives the debtor the protection and renders the sheriff liable to the severe consequences of refusing to act upon the evidence of the certificate. He, being on that supposition liable if the deed is valid, seems to me to be required to act upon the assumption that the certificate shews that a valid deed has been executed, and he is required to act immediately on the production of the certificate and the receipt of the copy without having any opportunity of inquiry. If the statute says, "obey this document," and allows no time for inquiry, it seems 1865. LLOYD V. HARRISON. |