2. The next question is, are the defendants excusable? The assignment was made on the 8th of December; the sale was so long after as the 29th of January. Now a third person is not to suffer by the mistakes of a sheriff; but he must execute all writs at his own peril : the property here was vested in the assignees, more notoriously than it could have been in any other person, because the act pursuant to a commission under the great seal, and notice of the commissioners' sittings, is published in the gazette. The sale was not the next day, or on a sudden. The return which the sheriffs made, that they had levied the debt out of the goods of William Johns, was a falsehood; for he, in fact, had no goods: they ought to have made that return which would have justified them, and should have delivered the goods seized to the assignees; for it is absurd to say, that when sheriffs have made a seizure of a stranger's goods by mistake, they must proceed to perfect that wrongful act. The only question, as I said before, here is, upon the tortious conversion, for the action supposes a rightful possession; so that it is very clear, that the plaintiffs are entitled to judgment. But I will proceed to consider the learned arguments used for the defendants, which have very ingeniously thrown a veil over the case, by comparing things unlike, and by quoting authorities, without seeing the grounds on which the determinations of those cases turned. 1756. COOPER agt. CHITTY. K. B. 1756. COOPER agt. CHITTY. K. B. The first argument used was, that an execution is an entire thing, and when once begun, must be completed; and various cases have been put to illustrate that position: and I admit, upon clear reasons, all those cases to be right. But then, those cases do not apply to the present question, for they are betwixt the defendant himself, and the sheriff, or his vendees, or representatives, and the plaintiff's representatives; and none of them go as to the goods of a third person: viz., if a sheriff levies, and dies, his representative is answerable. So, if the plaintiff dies, the defendant is not to have his goods back, but the plaintiff's representative. Clarke v. Withers. That a writ of error, after seizure, is no supersedeas to the sale. That the sale shall not be avoided by a writ of error, and judgment of reversal thereon: third part of Matthew Manning's case, fol. 97. And indeed, if executions rightfully executed were to be set aside, betwixt the defendant himself, and a person claiming under the sheriff, it would take away the very life of the law. Supposing the general proposition not to apply, they have gone further, and cited cases like the present, as authorities. Bayley v. Bunning, 1 Lev. 173. 1 Sid. 271. Lechmere v. Thorowgood, 3 Mod. 236. 1 Show. 12. 146. Comb. 123. Cole v. Davies, 1 Lord Raym. 724. The mistaking these cases arises from the imperfection, and abuse, of words, i. e. the using them in an equivocal sense. Those cases determine, that the taking the goods is lawful. If lawful, it has been argued, that the execution was well begun, and must be completed. But how was the seizure lawful? Is it meant that it was lawful as against the assignees, or in any sense to change the property? Clearly not; for the assignees will pursue, and avoid, every disposition, even in market overt. No more can be meant than this; that the sheriff, not knowing any thing of the secret act of bankruptcy, or that any commission would ever be taken out, shall not be punished as a wrong doer for the taking; which though not lawful against the assignees, yet was innocent, and excusable. I will put a case to illustrate this. Suppose a sheriff was looking about a man's house to arrest him, and B. comes, and tells him that he is A., whereupon he is arrested; I should think, that the bailiff would not be punishable, provided he set him at liberty as soon as he was aware of his mistake. All the other cases do but follow that of Bayley, and Bunning, in which there was a long question about the relation of the teste; and besides that, another, namely, whether the taking was lawful? The court, in determining it, plainly considered no more than whether the defendant was a trespasser or not; and they all agreed, that what he had done was lawful; for he, being an officer, was obliged to execute the writ, not knowing of the act of bankruptcy, or that a commission would be ever taken out. In the case of Phillips v. Thompson, 3 Lev. 192, it appears, that the case of Bayley v. Bunning was resolved only in excuse of the bailiff for executing the writ. The same case is reported in Sid., very shortly, and the reporter seems to have been confused, and not to distinguish between the cases of trover, and trespass. The next case is that of Lechmere v. Thorowgood, in Show., which was trespass against a sheriff for taking the goods of the assignees; and it was resolved, that though the statutes of bankruptcy vest the property in the assignees, yet that relation shall not work, so as 1756. COOPER agt. CHITTY. K. B. 1756. COOPER agt. CHITTY. K. B. to make officers, who had a good authority, and took Then as to the case of Cole v. Davies, Lord Raymond was very young when he took his note of it, which is very short. It was an action against the assignees: but there is no state of the case, nor of any one fact in it; but this much appears, that it is not applicable to the present case, as it is an action against the assignees. From the fourth resolution in that case, it seems that there must have been a sale by the sheriff, before the act of bankruptcy committed, to a person who suffered the goods to remain in the bankrupt's possession; and that the assignees had seized the goods, looking upon the sale as fraudulent. It is there said to be resolved, that if A.'s goods are seized on a fi. fa., and sold to B., though B. permits 4. to keep possession, &c., it will not make the execution fraudulent, nor will a subsequent act of bankruptcy defeat it. I should have doubted on the very point there resolved; but, be that as it may, it is no way applicable: and all the rest are only obiter opinions, referring to something as known law before, and not necessary to the determination of that case. These are all the authorities cited; and they are clearly answered by stating, with precision, the grounds they went on. Another topic was insisted upon; that it would be extremely inconvenient if the sheriff was not allowed to sell, after assignment, goods taken before; for to part with the goods again, and return nulla bona, he must take upon him to prove the change of property. Arguments ab inconvenienti are to be attended to. Let us consider, therefore, how this case stands in this respect. The sheriff, by law, is obliged, at his peril, to know the property of all other persons, and yet has not the same means of coming at that knowledge as in the present case. Besides, if there were any doubt about the time of the act of bankruptcy, or of the assignment, &c., I won't say, how far the court would indulge the officer, to make his return, or oblige the plaintiff to take the question on him: but he might take an indemnity, or petition under the commission, or file a bill of interpleader, which would not cost him a penny. This relation is certainly often very hard on third persons, but a case can rarely happen where it will be so to a sheriff. The legislature, however, have established, not thinking that it may not be hard on particulars, but to prevent that inundation of fraud, which would otherwise be the case, if bankrupts were at liberty to play their goods into the hands of other persons, by giving judgments, or the like. The sheriffs ought to look to it, and might fairly have insisted on an indemnity. To establish the doctrine contended for on behalf of the defendants, would be driving assignees to an application to courts of equity, to prevent collusion between bankrupts, and sheriffs. 1756. COOPER agt. CHITTY. K. B. |