1865. LLOYD v. protection from arrest under the writ within the true intent and meaning and under and by virtue of the 198th section of The Bankruptcy Act, 1861." That is, I think, HARRISON. a false return, W. Baird not being entitled to such protection. But the substantial ground of action here is the escape the allegation of a false return for which, without damage, according to the cases of Dawson v. The Sheriffs of London (a), Williams v. Mostyn (b) and Wylie v. Birch (c), an action would not lie, not being material. Our judgment, in my opinion, ought to be for the defendant. COCKBURN C. J. read the judgment of MELLOR J. The question to be determined in this case is, whether a sheriff is protected in an action for an escape for having discharged a debtor taken in execution on a writ of ca. sa. out of his custody upon such debtor producing to the officer of the sheriff a certificate, under the hand of the chief registrar of the Court of Bankruptcy and the seal of such Court, of the filing and registration of a deed of arrangement purporting to be a deed of arrangement between such debtor and his creditors, under the provisions of the 192nd section of The Bankruptcy Act, 1861, 24 & 25 Vict. c. 134., such deed not being in fact a valid deed within the meaning of that section, and not having been executed or assented to by the execution creditor. On the argument it was admitted by Mr. Mellish, for the defendant, that the deed to which the certificate (b) 4 M. & W. 145. (a) 2 Vent. 84. VOL. VI. (c) 4 Q. B. 566. 1865. LLOYD V. HARRISON. referred could not be supported as a valid deed after the decisions in Ilderton v. Castrique (a) and Ilderton v. Jewell (b), and that the certificate of the filing and registration of such a deed could afford no protection to the execution debtor, and that consequently the creditor was entitled to his execution against the person of such debtor. It was, however, contended that, although such deed and certificate were both in fact inoperative to restrain the execution or give protection to the debtor, yet that the sheriff who bonâ fide gave credit to a certificate, good on the face of it, under the hand of the chief registrar and the seal of the Court of Bankruptcy, of the filing and registration of a deed of arrangement under the 192nd section, was excused for acting upon such certificate and discharging such debtor out of custody. After a careful consideration of the various sections of The Bankruptcy Act, 1861, which bear upon this question, I am of opinion that the sheriff was excused, and that consequently the action is not maintainable. Much difficulty was experienced during the argument in construing the 198th section, and in ascertaining the true effect of a certificate, owing to the enactment that such a certificate "shall be available to the debtor for all purposes as a protection in bankruptcy." Protection in bankruptcy is either interim or final; neither kind of protection is strictly applicable to cases of this description. A debtor having executed a deed accepted and assented to by the requisite majority of his creditors, and conformable to the provisions of the 192nd section, is perpetually pro (a) 14 C. B. N. S. 99. (b) 14 Id. 665; affirmed in error, 16 Id. 142. tected against the exercise of any right on the part of a creditor affected by such arrangement other than is provided by the 198th section, but, if the deed turn out to be invalid, then as regards the debtor, who is a party to such deed and aware of its contents, it affords no protection to him as regards execution either against his person or property. In the present case the deed, although registered under the 194th section, which makes registration an essential condition to the validity of a good deed, cannot (being otherwise invalid) be made better by the mere fact of registration, and therefore the certificate of the filing and registration of such a deed cannot extend to protect the debtor who is a party to it; still, it may, in my opinion, operate as an excuse to the sheriff bonâ fide acting under it. It appears to me that the Legislature, in framing the machinery for carrying into effect the new provisions for deeds of arrangement which were to bind non-assenting creditors, intended to make the chief registrar of the Court of Bankruptcy, so far as regards the registration of such deeds and the granting of certificates of the filing and registration thereof, a substitute for the Commissioner acting in the matter of an adjudication of bankruptcy. It invests the chief registrar with a general jurisdiction to determine, for the purpose of registration, whether the conditions imposed by the statute have been duly complied with, and he must, in the exercise of his functions, examine the deed, and ascertain whether it is a deed "relating to the debts or liabilities of the debtor, and his release therefrom, or the distribution, inspection, management, and winding-up of his estate;" that it has been executed or assented to by the requisite number of creditors of the requisite amount and value, and he must for this 1865. LLOYD V. HARRISON. 1865. LLOYD V. HARRISON. purpose examine and determine whether the requisite execution or assent has been duly made by the creditors; and being satisfied of these matters he must thereupon register the particulars of the deed, with a short statement of the nature and effect thereof, in a book to be kept for that purpose, and he must also publish a copy thereof in the London Gazette. Now it appears to me that the functions of the registrar, though in part ministerial, are in part judicial. As was said by the Court of Exchequer in Thomas v. Hudson (a), concerning the functions of a Commissioner in bankruptcy, "he is to come to a decision on the petition and affidavits, not, indeed, a decision as to whether a petitioner, having complied with the requisites of the Act, shall or shall not have his interim order, or his order of discharge, for to these he is in such case clearly entitled, but whether he has or has not done what the statute imposes as the conditions on which he would become entitled to those privileges." In that case the Commissioner had nothing upon which to form his judgment except the petition and affidavits. The chief registrar, in determining as to the fact whether the deed in question is a deed "relating to the debts or liabilities of the debtor, and his release therefrom," &c., and whether it has or has not been executed or assented to by the requisite number of creditors of the requisite amount and value, must, like the Commissioner in Thomas v. Hudson examine and determine those facts before he registers the deed. And so far as those facts are material as conditions of registration he must determine the question for himself, subject, it may be, to his decision being reversed by the Court of Bankruptcy. (a) 14 M. & W. 353. 376; affirmed in error, 16 Id. 885. Although he has no authority to determine as to 1865. LLOYD V. HARRISON. |