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COOPER

CHITTY.

trespass. No damages are recoverable for the act of taking, all must be for the act of converting; this is the tort, or maleficium. And, to entitle plaintiff to recover, two things are necessary: 1. To shew a property in himself; 2. To shew a wrongful conversion by the defendant (d).-1. In the present case it is admitted, that the property was in the plaintiff, the assignee, from 4th December (e); therefore it was so before the seizure, and notoriously so before the sale. It was so before seizure by relation back; a doctrine established to prevent fraud, and which, though it may sometimes occasion particular inconveniences, yet is considered by the statutes as conducive to the general good of the public. The statutes therefore make all conveyances and acquisitions of property void, by, from or under the bankrupt, and the property of the assignees to be good and valid, against even all executions not executed before the act of bankruptcy committed. The acquisition of property by act of law has the same operation, as an acquisition by the act of the party: if it be completed before the act of bankruptcy, it is good; if not completed, it is otherwise. The stat. 19 Geo.2() relieves as to contracts in two particular cases, and then only; otherwise the statutes rescind every contract made or completed after the act of bankruptcy. And in the present case, they do not make the original taking of the goods in execution unlawful, or a trespass ab initio, but only by relation preserve a property of the goods in the assignees, previous to the taking, in order to divide them rateably among all the creditors.--2. To shew a wrongful conversion by the defendants, it must be considered, 1st, Whether the conversion itself is wrongful; 2dly, Whether defendants are so far excusable herein, that the remedy as against them is misdirected.- 1st, The conversion or

act of sale is clearly wrongful. The sheriff had a right to sell ] the goods of Mr. Johns, but not *to sell the property of the

plaintiff. The Court of Chancery, in such a case, would arrest · the goods, in a summary way. The vendee can maintain no

title to the goods, under the sale of the sheriff, which proves the action of sale to be wrongful; neither could the plaintiff in the original action finally retain the money, arising from such sale.--2dly, The defendants are not excusable. Three weeks intervened between the assignment and sale, and the return was not made till near a month farther. The notoriety is extremely great. But had the sale been immediately after the seizure, still the sheriffs would have been liable (g). The return they have made is false, that they have made so much, “ of the goods of-Johns;" whereas they were not the goods

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(d) As to the action of trover, see Wilbraham v. Snow, 2 Wms. Saund. 47 a, n. (1); Taylor v. Wells, Id. 74, n. (1).

(e) See Hitchin v. Campbell, post, 827.

(f) Ch. 32, s. 1: that is, in respect of goods sold or bills of exchange drawn by a bankrupt. But that act is now repealed by stat. 6 Geo. 4, c. 16, which provides (s. 82), that all bona fide payments made

by or to a bankrupt before the date and issuing of a commission shall be valid, notwithstanding a prior act of bankruptcy: and that a creditor, to whom such payment shall be made, shall not be liable to refund the same to the assignees, provided the person so dealing with the bankrupt had not notice of any act of bankruptcy.

(g) T'imbrell v. Mills, contra, post, 205.

of Johns, but of the assignees. Doubting, whether they could return nulla bona is arguing in a circle. “ They could not return nulla bona, because they were the bankrupt's; they were the bankrupt's goods, because the sheriff could not return nulla bona.Therefore we are all of opinion, that the plaintiff must recover. The ingenuity of the defendant's counsel has thrown a veil over the reason of the case, by starting some plausible objections. Objection 1st.-An execution is an entire thing, and when once begun must be completed. This execution was lawfully begun, and therefore must be completed. Answer.-All the cases put and cited are between the plaintiff and defendant, and do not relate to the taking the goods of a third person. If a sheriff takes the goods and dies, his executors must complete the sale: if the plaintiff dies, his executors may demand to have the execution completed : writs of error cannot supersede an execution on a fieri facias actually begun; because the goods are of a perishable nature, and must not wait the determination of the suit: a vendee upon a lawful judgment and execution thereupon, shall not lose his property upon a reversal by a writ of error; so held in Matthew Manning's Case, 8 Co. 97. But none of these allow the sheriff to take the goods of a third person. The fallacy of this argument lies *in the equivocal use of words. The taking is said to be law- [ ful; but how lawful ? against the assignees? Impossible, in any sense; so as to gain the property. No: the word lawful, means no more, than that the sheriff shall not be held a criminal or wrong-doer, by the relation of the statutes; he is not a trespasser. As if the sheriff arrests one who says he is A., but is not so; the sheriff's taking him is lawful; but his detaining him after the truth is discovered, would be unlawful (h). The case of Bailey v. Bunning only proves, that the taking of the goods under the writ, though after an act of bankruptcy, yet before the commission, was lawful; that the officer was no trespasser in so doing, this being sufficient to excuse him. This case is so explained per Cur.’ in Philips v. Tomson, 3 Lev. 192. Siderfin did not know what the Court went upon (). Lechmere v. Thorowgood, was an action of trespass for a tort. So explained in Shower, which is the only clear state of it. Also Comberbach says, it was held, that the officer should not be made a trespasser, by this relation back. There is also Cole, v. Davies, Ld. Raym. 724, which says, no action will lie against the sheriff, acting under process, but solely against the vendee. This is a mere obiter note, taken at Nisi Prius, when the reporter was a very young man. And it seems to have been collateral to the case in hand; which turned upon a supposed

COOPER

CHITTY,

"701

(h) See Sanderson v. Baker, post, 832.

(i) Wherever trespass for taking goods will lie, trover will also lie; for one may qualify but not increase a tort; Bishop v. Montague, Cro. Eliz. 824; S. C. Cro. Jac. 50; Branscomb v. Bridges, 1 B. & C. 145: but the converse of the proposition does not hold, for trover may often be brought,

where trespass cannot; as where goods
are lent, or delivered to keep, &c.; Pitt
v. Rawsterne, Sir T. Raym. 472; Lech-
mere v. Toplady, 2 Vent. 170; Smith v.
Milles, 1 T. R. 475; see 2 Wms. Saund.
47 k; and as to the distinction between
trespass and trover, see Ward v. Macauley,
4 T. R. 489.

CHITTY

COOPER collusion, between the plaintiff and defendant; as may be con

jectured from the fourth resolution therein. Objection 2d.-
It would be inconvenient, if a sheriff is not allowed to justify
the sale of goods, after a commission of bankruptcy, which he
has taken before. Answer:-If the sheriff has any doubt, he
may insist on an indemnity from the party. But it is said, it
would be hard to make the sheriff prove the commission, act of
bankruptcy, &c. Not at all; for, by a bill of interpleader, he

might make the original plaintiffs and the assignees settle that [*711

matter be*tween themselves. The inconvenience would be greater on the other side. The doctrine of relation may be hard upon the sheriff, but less hard than on any other third person, for he has his remedy over. And the inundation of frauds, which would otherwise be let in, requires the establishment of this doctrine. Every bankrupt, after the act committed, would give over his goods to some favourite creditor, by means of a legal execution.

Judgment for the plaintiff(K).

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(k) This case was fully recognised and confirmed in Smith v. Milles, 1 T. R. 475; where it was held, that trespass will not lie against the sheriff, for taking the goods of a bankrupt in execution after an act of bankruptcy, and before issuing the commission, notwithstanding he sells them after commission issued, and after notice of a provisional assignment. And see Clarke v. Ryall, post, 642.

Where a fieri facias is levied the same day that an act of bankruptcy is committed, the Court will take notice, at what time of the day each took place; for the validity of the execution depends on the priority; Thomas v. Desanges, 2 B. & A. 586; Sad. ler v. Leigh, 4 Camp. 197, S. P. This seems to be the only case, in which the

Court will notice the fraction of a day;
see R. v. Adderley, 2 Doug. 463; Galton
v. Wigley, Ca. temp. Hardw. 208; Combe
v. Pitt, post, 439 : See also Swain v. Mor-
land, 1 Brod. & B. 370, 3 B. Mo. 740, S. C.
But now, by stat. 6 Geo. 4, c. 16, s. 81,
executions against the goods of a bankrupt,
bond fide executed more than two calendar
months before issuing the commission, shall
be valid, notwithstanding a prior act of
bankruptcy, provided the person at whose
suit the execution shall have issued, had
not notice. And in case of a commission
superseded and a new one granted, no exe-
cution to be valid, unless executed more
than two calendar months before the first
commission.

The King v. The Bishop of Ely.

S. C. I Burr. 158; 1 Lord Kenyon, 441. Visitor of an an. M OTION for a prohibition to the Bishop of Ely, to restrain visitor also of him from proceeding, as visitor of St. John's College, Camingrafted found. bridge, in a cause of appeal, promoted by Thomas Toddingations; unless a ton, clerk, against the election of William Craven into one of special visitor is Da' Koton..

Dr. Keton's fellowships, in the said College. It was suggested appointed: notwithstanding a upon affidavits hinc inde, that the College was founded by remedy by dis- Margaret Countess of Richmond, who consigned the completion vided for by the

oport of it to Fisher, Bishop of Rochester, and he finished and gave new founder. it a body of statutes, 2 Hen. 8. The College is erected on

the scite of an old priory, formerly under the jurisdiction of the Bishop of Ely; and in Fisher's statutes, there is the following clause, which is omitted in the subsequent statutes after mentioned, viz. “ Cap. de Visitatore. Præter hunc visitationis mo“ dum, nos alium nullum Episcopo Eliensi concedimus, sed

tress is

“ nec a sociis tolerari permittemus aliquo pacto; quod etiam iis THE KING “ mandamus per vim sui juramenti. Scimus enim quod eximia

Bp. of Ely. “ Virago Domina Fundatrix impetravit ab Eliensi Episcopo, qui “ tunc fuerit, jus fundationis ea quidem ratione, ut ex deso“ latis Ædiculis tam illustre Collegium erigeret; quod cum “consummaverit, par est, ut Elienses Episcopi nihilo majorem “ in hoc Collegio sibi vendicent autoritatem, quam in cæteris “ Collegiis Academiæ, ubi non sunt fundatores” (1).

Afterwards, Queen Elizabeth, as heir to the foundress, gave the College a new body of statutes, in many respects similar to *Fisher's; but without the foregoing clause. The passages re- [ *72 ] lied on by either side, out of these statutes, in the present case, were principally the following:

Cap. 2. De Electione Magistri.—Si [electores] de uno “ aliquo non consenserint, tum ad Collegii visitatorem veniatur; " et ille pro magistro habeatur, quem solus visitator duxerit “ præficiendum.-Et dictus visitator eundem intra 20 dies, &c.— “Quibus per Episcopum Eliensem dicti Collegii visitatorem non “ observatis, tunc ad summum Academiæ Cancellarium perti“ neat pro illa vice magistri nominatio.” Cap. 11. De Electione Præsidis et aliorum Officiariorum.

- Is erit electus, quem magister, si intra regnum Angliæ “ fuerit, nominaverit; quod si extra regnum fuerit, tum is quem “ Episcopus Eliensis, dicti Collegii visitator, intra regnum ex“ istens; vel absente aut sede vacante, quem Academiæ Can“ cellarius, nominaverit, &c.”

Cap. 13. De Electione Sociorum.-- Eodem modo proce“ datur quo supra, &c."

Cap. 45. De Modo procedendi contra Magistrum criminosum, &c.—Si major criminosus, &c. sponte cedere nolue“rit; denuntiabitur Épiscopo Eliensi, vel, eo in remotis agente “ seu sede vacante, Cancellario dictæ Universitatis ; vel eo “ extra Universitatem existente, præpositis Collegiorum Regis, Trinitatis, et Christi, &c. Episcopus vero Eliensis vel, &c. de criminibus, &c. summarie et de plano et extrajudicialiter “ cognoscat, et magistrum ab officio suo removeat &c., cessan“ tibus appellationis, recusationis, querelæ, aut cujusmodi alte“ rius juris aut facti, remediis."

Cap. 50. De Ambiguis et Obscuris interpretandis.Abrogatis igitur quibusvis aliis statutis, pro hujus Collegii guber“natione, prius excogitatis, hæc præsentia tum vera tum sa“ lubria pronunciamus. Reservata nobis nihilominus potestate “ vel adjiciendi, vel minuendi, mutandi, &c.--Quod si forte “ Cancellarius, aut Vice Cancellarius, aut Episcopus Eliensis, “ aut demum quivis alius contrarium attentaverit, et novum

(1) Colleges in the aniversities were certainly considered by the popish clergy, under whose direction they were, as ecclesiastical, or at least as clerical corporations, and therefore the right of visitation was claimed by the ordinary of the diocese. And in some of the colleges at Oxford, where no special visitor is appointed, the

Bishop of Lincoln, in whose diocese Oxford
was formerly comprised, has immemorially
exercised visitatorial authority. And pos-
sibly the Bishop of Ely's visitatorial power
at Cambridge may be derived from the
same source. But Mr. Christian doubts
the latter supposition; 1 Bla. Comm. 482.
See post, 86.

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“ aliquod sta*tutum adhibere molitus fuerit ; ab ejus obligatione “ (autoritate nostra) magistrum, &c. penitus absolvimus, eisque “ interdicimus, ne pareant admittantve quovis pacto, sub poena

perjurii et amotionis perpetuæ. Quod si inter magistrum et
“socios, aut inter ministrum et socios, aut inter ipsos socios
“ aliosve quoscunque nostri Collegii, super aliquo articulo sta-
" tutorum nostrorum dubium aliquid oriatur, cujus decisio intra
“8 dies nequiverit inter eos haberi; tunc volumus, ut partes
“ dissidentes duos eligant, qui reverendissimum Episcopum
.“ Eliensem pro tempore existentem (in quo sinceram fiduciam
ponimus, quemque juxta planum, communem, literalem et
“ grammaticalem sensum, et ad dubium pertensum aptiorem,
“ omnes hujusmodi ambiguitates interpretaturum, dissoluturum,
“ declaraturum, arbitramur) ubicunque intra regnum Angliæ
“ fuerit, adeant, vel saltem totam controversiam in scriptis eidem
“ reverendissimo patri significent: cujus quidem reverendissimi
“Episcopi determinationi, interpretationi, et declarationi super
“ prædicto dubio ita, ut præfertur, disputato, ac ad eum delato,
“ faciendis, magistrum, præsidem, socios, &c. omnes dicti Col-
“ legii obtemperare volumus, et cum effectu parere. Visita-
“ tionem autem hujus Collegii reverendissimis in Christo pa-
“ tribus Episcopis Eliensibus commendamus; quibus et con-
cessimus cujusdam idonei præsentationem, qui sit futurus in
" hoc Collegio socius. Idoneum autem intelligimus, qui quali-
“ tates habeat easdem, quæ describuntur in statuto de qualitate
“sociorum: neque enim alium quempiam recipi volumus a Col-
“ legio. Neminem autem illi præsentent, nisi talem qui pro
“ suis meritis hoc sodalitio dignus fuerit, et qui cum statutis

per omnia conveniat."
* Cap. 51. DE VISITATORE.—Nos igitur fiducia benignitatis

reverendissimi in Christo patris Episcopi Eliensis, qui nunc
“est, et successorum suorum, freti, confisique, quod hæc nos-
“ tra statuta, perpetuis futuris temporibus, inviolabiliter, ad
“ laudem Dei et honorem Collegii, observari procurabunt et
“ nitentur, et ea vel eorum aliqua, contra nostram mentem et
“ sanctissimum piæ fundatricis institutum, minime violari pati-

entur; statuimus, &c. ut Episcopus Eliensis, qui pro tempore “ fuerit, quoties per magistrum et quinque ex senioribus, sive “ per septem seniores, reluctante magistro, requisitus fuerit, “ ad Collegium valeat et possit accedere; magistrum, &c. convo" *care; Collegium tam in capite quam in membris visitare; “ ac de et super omnibus et singulis, statum, commodum, ho

norem et dicti Collegii statuta, magistri, præsidis, decanorum,

thesaurariorum, sociorum, scholarium, discipulorum et mini“ strorum reformationem et correctionem concernentibus dili“ genter inquirere; juramenta exigere; crimina &c. in ea visi“ tatione comperta debite punire, corrigere et reformare; ac “ jurisdictionem suam ordinariam (quam volumus et hoc statuto “ nostro ordinamus ad eundem Episcopum Eliensem, et suc

cessores suos, in perpetuum spectare et pertinere) in magis“trum et socios dicti Collegii exercere; cæteraque omnia et “ singula facere et exercere, quæ ad eorum correctionem et

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