In

THE KING

V.

LORD MONTA

but that would be nugatory, except one also goes to the lord
to hold a court. If you grant the end you must grant the
means. K. and Christchurch, M. 12 Geo. 2, (a) a mandamus
was granted to the steward of a court leet to hold one, and to
the jury, to present to the steward one Day, who was chosen
Mayor. The Case of Andover (as to five in one writ) was,
where there were separate grievances: here, the grievance is
one and the same to all. But the Court will judge how many [
writs are necessary, and grant them accordingly. Objection,
No instance of mandamus to hold a court baron, but that 2
Roll. Rep. 107 is against it. Solution, The sole question is,
Whether it be for the public good or no; if it be, the Court will
grant it for courts baron as well as leets. As to the jury being
on oath, the oath is the common oath of homagers; but this
presentment is not made by them quatenus homagers, but as
tenants of a franchise vested in them by the Crown. Every offi-
cer of a corporation takes a general oath to do his duty. That
will not preclude this Court from sending him a mandamus.
K. and Lord Mayor of London, a mandamus went to him to re-
turn one Brockhurst (who was chose alderman) to the court of
aldermen, and also to the court of aldermen to admit him. In
the K. and Clithero, a MS. note under the name of the K. and
Willis (b), states that a mandamus at last went to the bailiff and
jurats to present and admit. The oath is so far from being a
reason against the mandamus, that it is a strong reason for it;
for the jury are bound to present alienations, and the Court only
forces them to carry their oath into execution. The cases in
Leon. and Dyer (c) prove, that juries on their oaths may be
punished by amerciament and forfeiture; a fortiori this Court
may interpose by way of direction, as in cases of mandamus to
spiritual judges, to grant administration (d), and to archdeacons,
to swear in churchwardens (e). In Bagg's case, 11 Rep. 98(ƒ),
it was resolved, that this Court has authority to correct all er-
rors judicial or extrajudicial; so that no wrong or injury either
public or private can be done, but that it shall be reformed by
due course of law.

The Court directed a search to be made for the K. and Clithero, and it was found, that a mandamus had gone ballivis et jurat' (with a dash) M. 5 W. & M. to present and swear in two

persons.

CUTE.

*63

Sir R. Lloyd, in reply, observed; that no mandamus had ever gone to officers in their judicial, but only in their ministerial capacities (g). This is an answer to all their cases. Mandamus has indeed gone to direct an exertion of their judicial capacity, as to grant admission (h); but not how they shall *exert it, as to [ *64 .]

granting a mandamus in R. v. Bp. of Ely,

2 T. R. 290, post, 90, n. (h) S. C. 66

(h) By 12 G. 3, c. 21, s. 1, where any person entitled to be admitted a citizen, burgess, or freeman of any city, &c. shall apply to the mayor, &c. to be admitted, and the mayor, &c. shall not admit him within one month after notice, a man

THE KING

V.

LORD MONTA

CUTE.

whom they shall grant admission. So in the case of the Mayor of London, the mayor and aldermen are only canals, and could not exert any judgment. In the K. and Willis alias Christchurch, the case was agreed, and nothing finally done. In the K. and Clithero, the mandamus never went to the jury to present. It went to the bailiffs and jury jointly, by their own ac

count.

Per Cur'. LEE, C. J.-We have at present no ground to think, that these were legal conveyances; rather the contrary; non constat that they have jus ad rem. But if they have it, the right of voting for members is surely a noble privilege, as Holt C. J. said, in case of Ashby and White (i). And where a man has jus ad rem, it would be absurd, ridiculous, and a shame to the law, if he could have no remedy; and the only remedy he can have is by mandamus. I think the cases, especially the K. and Christchurch, extremely strong; and don't see, that the act of the jury in the present case, is a whit more judicial than that. After the right is settled, the presentment is ministerial only. In the K. and Christchurch, the presentment is grounded on an election previous; in the present, it is grounded on the conveyances precedent. The K. and Clithero also shews, that a mandamus was granted to an enquiring jury. As to putting them all, the bailiffs and jury, together, it must be taken, reddendo singula singulis. I am therefore of opinion on the whole (it being absolutely necessary on the reason of the thing) that a mandamus should go, to force them either to exert their duty, or shew cause to the contrary. If they can shew that there has been no alienation, that will be a good return. The legality of the alienations belongs to another jurisdiction.

WRIGHT, J.-Old Nat. Br. 3 e. 12 b(k). French 4to edition, mandamus may go to a lord of a manor, to hold court baron to do justice to his tenants ().

Rule absolute, per tot. Cur'. more mandamus's.

damus shall issue to compel him, and he
shall pay all costs.'

(i) Salk. 19.

(k) Pp. 6, 26, (8th ed. 4to.)

(1) The Court will grant a mandamus to the lord of a manor to admit a copyholder; but not where he claims by descent, as in that case he has a complete title without admittance against all but the lord; R. v. Rennett, 2 T. R. 197; so if the lord refuse to admit a person, to whom a copyhold is surrendered, on account of a disagreement about the fine, the Court will compel him; R. v. Lord of Hendon-manor, Id. 484; so

with leave to sue out one or

the Court will grant a mandamus to burgesses to attend a court leet to make a jury; Rector of Wigan's Case, 2 Stra. 1207; so to compel the lord to hold a court leet, and court baron in the accustomed place; R. v. Grantham, post, 716. But though a mandamus lies to the lord to hold a court leet, yet it lies not to jurors by name to appear and form a jury; R. v. Bankes, post, 452; ante, 26, n. (o); Bac. Abr. Mandamus (D); Com. Dig. Mandamus (A); and see R. v. F. Rigge, 2 B. & A. 550. See also R. v. Barker, post, 300, R. v. Cambridge Univ. post, 547.

MICH. TERM,-30 GEO. II. 1756.-K. B.

ROLLS v. BARNES.

S. C. 1 Burr. 9; 1 Ld. Kenyon, 391.

IT was held by the Court, on the authority of Adderley and Insimul compuEvans, H. 29 Geo. 2(a), that insimul computassent was no good tassent no bar to plea in bar to an action on assumpsit; for, though true, it does assumpsit. not extinguish the original promise on which the action is

founded (b).

(a) That was assumpsit by an executor for due to the testator for work and labour, &c. plea, that testator and defendant accounted together, and that defendant was found in arrear 127., and had paid 10. to testator, and remaining 21. to plaintiff: Judgment on demurrer for the plaintiff; 1 Ld. Ken. 250.

(b) It appears from the report in 1 Ld. Kenyon, (which is the fullest) that the defendant pleaded a stated account before the bill filed, and a balance in favour of himself, and that the plaintiff promised to pay such balance; and Denison, J., said, that "a promissory note would not be plead able in bar to this action, as it is not a demand of a higher nature; no more than one bond is pleadable in bar to another :" 1 Burr. 9, S. P. But where in assumpsit for goods sold, the plea was, that the defendant, being the payee of a promissory note, indorsed it to the plaintiff, and that the plaintiff received it "for, and on account of the said debt;" and on general demurrer it was urged, that the plea should have alleged, that it was received in satisfaction of the debt; the plea was, however, held good; Kearslake v. Morgan, 5 T. R.

513: and in support of it, Richardson v.
Rickman, was cited; there, in a similar ac-
tion, the defendant pleaded an account
stated, and that he was found in arrear,
for which the plaintiff drew a bill on him,
and delivered it to A. B. the payee, which
bill the defendant afterwards accepted. On
demurrer, Ld. Mansfield said, that a bill
of exchange, unless there was an agree-
ment that it should be so, was no satisfac-
tion, but that this was a bill accepted by
the party and negotiable, and that was pay-
ment: judgment for the defendant. Bailey,
J., said, "that Kearslake v. Morgan was an
authority to shew, that if a debtor pay his
creditor by a note or bill, which the creditor
takes on account of his debt; such taking
of a bill will be an answer to an action
brought by the creditor against his debtor
for that debt, unless the creditor gives up
the bill; Rowe v. Young, 2 Brod. & Bing.
245. And see Dangerfield v. Wilby, 4 Esp.
N. P. 159; Norris v. Aylett, 2 Camp. N.
P. 329; see also Wilkins v. Casey, 7 T. R.
713, per Ld. Kenyon, and the form of such
a plea in 2 Chitty's Plead. 483 (2d ed.):
also Pring v. Clarkson, 1 B. & C. 14.

COOPER v. CHITTY and BLAKISTON.

S. C. 1 Burr. 20; 1 Ld. Kenyon, 395.

If a Sheriff takes
goods
of a bank-
rupt in execution
after the act of
bankruptcy, and

mission issued,

and sells them

TROVER against the Sheriffs of London, by the assignee of one Johns, a bankrupt, for goods sold by them under an execution. It was stated that on the 4th of December, 1753, Johns became a bankrupt; on the 5th of December, the judgment was entered against him by Godfrey, and the fieri facias was executed the same day: On the 8th of December, the commission was taken out; the same day assignment made: On the 28th of Decem- after the comber, 1753, the defendants sold the goods; and on the 20th of January returned, that they had levied the money. Sir R. Lloyd, for the plaintiff argued, that the question was, in whom the property of the goods was. That the Sheriff can neither sell nor take goods, in which the defendant has no property. If he does, trover will lie against him. Two times are

will lie against

him. Vide Tim

brel and Mills.

Hil. 33 G. 2d. 1760. p. 203.

[

COOPER

V.

CHITTY.

*

to be attended to; 1. Of seizure, 2. Of sale. 1. The goods were seized the 5th of December; but after the 4th of December, the defendant had no absolute property left in him. If it be asked, Where is the property at that time? The answer is, the books are confused about it. In Player's Case, Salk. 111, Holt is unintelligible, who says the assignees are in by relation, after the commission taken out. But the question recurs, Where is the property in the interim? It is certain, that the Sheriff cannot seize more property than the defendant has. It seems therefore reasonable, that the Sheriff may seize this imperfect *66 ] property, and nothing more. The bankrupt has a special property, like a carrier, &c. Or, he has a defeasible property, like a distrainer for rent: Or, he has a right of custody, for the benefit of all his creditors. This case differs from an execution and seizure before the act of bankruptcy, because then the defendant has the absolute dominion of the goods. 2. It is to be considered, whose the goods were at the time of sale. After the assignment, the property is in the assignees; 1 Vent. 193. The Sheriff on the 5th of December seized a defeasible property: The assignment on the 8th of December defeated that property, by vesting an absolute property in the assignees. Objection. The relation back is a fiction of law, and therefore shall not damage a third person. Answer. This is not universally true. And, if true, it only relates to fictions arising from construction of the Judges, and not such as are created by express act of Parliament. Besides it was absolutely vested before the sale. Objection. What return then could the Sheriff make, who had taken the goods before assignment? Answer. He might have returned nulla bona, K. against Brein & al', bailiffs of the Savoy, 1 Keb. 901. Objection. The Sheriff might not know of the assignment before the sale. Answer. It is his business to know it, he is paid for knowing it (c). Want of knowledge is no justification in a civil action. But probably, he did know of the act of bankruptcy. It is incredible, he should not know of the commission. Objection. Action shall be brought against the original plaintiff Godfrey, or against the vendee; and not against the officer. Answer. There is no reason to proceed against them, but what will equally hold against the Sheriff: for their property, if bad, depends upon the Sheriff's want of power to assign it to them. Objection. Bailey against Bunning, 1 Lev. 173, 1 Sid. 272; on a similar action, the fieri facias was tested the 4th of June, but not sued out till the 11th of June. An act of bankruptcy was committed on the 6th of June; the Sheriff took the bankrupt's goods in execu

(c) The sheriff is bound to execute the writ at his peril: and if he have any doubt about the property of the goods, it is said, he may summon a jury to inquire that fact; Dalt. Sher. 146, c. 30; Gilb. Executions, 21; Farr v. Newman, 4 T. R. 633, 648. But the return of such an inquisition is traversable; and though perhaps it might be evidence in mitigation of damages in tres

pass against the sheriff, yet in an action on the case for a false return, an inquisition finding goods to be the property of a third person is not admissible in evidence; Glossop v. Pole, 3 M. & S. 175; neither would it be so in trover against the sheriff; Latkow v. Eamer, 2 H. Bla. 437; where the Court doubted, whether the sheriff can legally hold such an inquisition.

tion. Trover against the Sheriff. And, on the case stated, judgment for the defendant. Answer. At that time, the goods were bound from the teste of the writ, and not from the emanation of it; and at the teste, the property was clearly and absolutely in the bankrupt: therefore no wrong done. But here, the bankruptcy commenced before the teste.

COOPER

V.

CHITTY.

Mr. Morton, for the defendant, argued, that the relief should have been against the plaintiff in the original action. He has given the bankrupt equal credit with the rest of the creditors, and should not be suffered to gain a preference in prejudice of *the rest. Allowed, that by 2 Stra. 981, in the case of Brassey [ *67 ] v. Dawson, execution after act of bankruptcy and before assignment is void; yet 1 Lev. 95, if even a judgment be set aside for irregularity, no relief can be had against the officer, who acts under the sanction of the Court. The foundation of the action of trover is property in the plaintiff at the time of conversion, and that the conversion was tortious. But both in Carey v. Crispe, Salk. 108, and Brassey v. Dawson, it is held, that the property remains in the bankrupt till assignment; the seizure therefore is justifiable. And no fictitious relation shall turn this into a tort. If seizure is justifiable, the sale must be so too; for the seizure vested a special property in the sheriff; Clerk v. Withers, Ld. Raym. 1076; so too Cro. Jac. 515; Cro. Eliz. 440; Cro. Car. 457; Hob. 206; March. 13. The law considers the whole execution, seizure, and sale, as one act. The sheriff may seize and sell on the same day, and pay the money to the plaintiff; his deferring the sale shall not make him liable to the assignee; since he would not have been so, had he completed the execution immediately; Cro. Eliz. 597; 6 Mod. 293. The sheriff can make but five returns to this writ of fieri facias. 1. Nulla bona, which would be a false one. 2. Bringing money into Court. 3. That he has paid it to the plaintiff. Both these must be founded on a prior sale, which is argued to be a conversion. 4. That he has delivered the goods to the assignee; which he has no right to do, without a jury to find a property in such assignee. 5. That the goods. remain unsold; which is only a temporary matter of excuse. If an action be brought against the sheriff, by the original plaintiff, for detaining the goods; can he plead the bankruptcy? He cannot, for he has it not necessarily in his power, to prove the act of bankruptcy, the commission, and other parts of that transaction. There are two cases in point for the sheriffs; Lechmere v. Thorowgood, 3 Mod. 236, 1 Show. 12, Comb. 123; and Bailey v. Bunning, 1 Lev. 173: in which it is also stated, that the officer had notice of the bankruptcy.

Lord MANSFIELD, C. J., delivered the opinion of the Court. The bare defining an action of trover will go a great way to

wards understanding, and solving this question. The *form of [ *68 ] the action is a fiction, but in substance it is a remedy, to recover property wrongfully converted to another's use. The form supposes the defendant might come lawfully by it; and if he did not, yet by bringing this action, the plaintiff waves the