1884. IN RE sions contained in section 170 of the new Act were inserted, to come into operation on the passing of that Act. Dealing with MCALPINE, the objection which has been raised that the registrar was bound MCALPINE. by the statement of affairs, I am clearly of opinion that it cannot EX PARTE be maintained. I fail to see how it is possible for the registrar to exercise his discretion without knowing the exact condition of the estate. It was urged that under the liquidation the creditors will get all they could obtain by bankruptcy proceedings. I do not think this is a sufficient answer; for by section 170 quite a different complexion is put on the circumstances. I am of opinion that the County Court judge, in thinking that it was his duty to inquire into the statement of affairs, was perfectly right. Further, looking at the statement itself, I must say that there is every indication that the creditors were friendly to the debtor, and that it was meant to delude the Court into the belief that there was a substantial estate. I am always unwilling to overrule a County Court judge unless I am sure that he is wrong. In the present case I am quite sure that the County Court judge was right, and the appeal must be dismissed with costs. In re Webb, Ex parte Walter, L. R., 2 Ch. Div. 326; 45 Ex parte Hope, In re Hope, L. R., 9 Ch. Div. 398; 47 L. Ex parte Aaronson, In re Aaronson, L. R., 7 Ch. Div. 713; Ex parte Staff, In re Staff, L R., 20 Eq. 775; 44 L. J., Ex parte Ball, L. R., 20 Ch. Div. 670; 51 L. J., Ch. 911; IN RE W. AND J. LUDFORD. Bankruptcy Act, 1883, Section 97 and Section 46.-Special Case-“ Costs of Execution"-Poundage. Held:-That the meaning to be attached to the words "costs of the execution" in Sub-section (1) of Section 46 of the Bankruptcy Act, 1883, is different to the meaning to be attached to the same words in Subsection (2) of the same Section. Under the words "costs of the execution" in Sub-section (1) the sheriff is not entitled to "poundage." THIS was a special case stated by the learned judge of the Birmingham County Court under section 97 of the Bankruptcy Section 97 (3) provides, that "if any question of law arises in any bankruptcy proceeding in a County Court which all the parties to the proceeding desire, or which one of them and the judge of the County Court may desire, to have determined in the first instance in the High Court, the judge shall state the facts in the form of a special case, for the opinion of the High Court. The special case and the proceedings, or such of them as may be required, shall be transmitted to the High Court for the purposes of the determination." The facts of the present case were as follows: On January 17th the sheriff of Warwickshire (in the present case called the respondent) levied on the goods of the debtors by virtue of a writ of fi. fa. bearing date the preceding day. On January 20th a petition in bankruptcy was filed by the debtors; and on January 21st the sheriff delivered possession of the goods seized to the official receiver in accordance with the provisions of section 46 of the Bankruptcy Act, 1883. The question for the opinion of the Court was whether the sheriff was entitled to the sum of 47. 12s. 5d. for poundage or not. The case was stated by the official receiver (herein appearing as the appellant) with the consent of the sheriff. BEFORE MR. JUSTICE CAVE. 1884. June 11. · 1884. IN RE W. AND J. LUDFORD. M. D. Chalmers for the official receiver: The question turns upon the meaning of the words "costs of the execution" in section 46. These words are used both in sub-section (1) and sub-section (2) of that section. But I submit that the meaning to be placed upon them in the two sub-sections is not the same. They are used in different senses in each sub-section. Subsection (1) deals with cases "where the goods of a debtor are taken in execution and before the sale thereof," &c. There is no sale. Poundage does not become due until there has been a sale. It is of the nature of payment by results. In Miles v. Harris (L. R., 12 C. B., N. S. 550), it was decided that "the sheriff is not entitled to poundage where, after seizure and before sale, the judgment and all subsequent proceedings are set aside for irregularity." In Mortimore v. Cragg (L. R., 3 C. P. Div. 216; 47 L. J., C. P. 348; 38 L. T. 116), it appears that "a sheriff, who by compulsion of a writ of fi. fa., recovers the amount of a judgment debt, is entitled to poundage, although after seizure he is paid out by the execution debtor without a sale of any portion of the goods seized." In that case the sheriff recovered the amount. Also in In re Craycraft, Ex parte Browning (L. R., 8 Ch. Div. 596; 47 L. J., Bank. 96; 38 L. T. 364), it was held that "the facts of there having been no sale, and the liquidation of the debtor, did not affect the right of the sheriff to be paid by the trustee the necessary expenses of possession and of preparing for sale." .Nothing is said as to poundage. E. Cooper Willis, Q.C. (Macaskie with him), for the respondent: In ordinary cases I admit that if poundage is to be payable, the execution must bear some fruit. Under the new Act, however, I contend the position of the sheriff is improved. In sub-section (2) of section 46, it is admitted that the words "costs of the execution" include poundage. That is where a sale has taken place. The question is whether the words "costs of the execution " are used in the same or in a different sense in two sub-sections, one immediately following the other. [CAVE, J.: Why should the sheriff be in a better position, in the present case, than when the writ is set aside for irregularity? On what scale ought the poundage to be ascertained ?] 1884. J. LUDFORD. There is no difficulty as to that in this case. Further, I submit that the words "costs of the execution" have been explained in the IN RE W. AND case of Armitage v. Jessop (L. R., 2 C. P. 12), where it was held that "a plaintiff who recovers a debt not exceeding 207., although deprived of costs by force of the County Courts Acts, is nevertheless entitled to levy poundage fees and expenses of execution in addition to the sum recovered, under the 123rd section of the Common Law Procedure Act, 1852 (15 & 16 Vict. c. 76)." Here poundage is included. Macaskie followed. CAVE, J.: In this case I am of opinion that the argument put forward on behalf of the official receiver must prevail. As a general proposition of law it is beyond question that the execution must be of some value, and bear some fruit if poundage is to be payable. In other words, the sheriff is entitled to poundage only where he has obtained the money and can hand it over to the execution creditor. The sheriff may have got the money either by sale or by the debtor paying the sum due, and in either case he would be entitled to poundage. But I am of opinion—and I know of no case, and none has been quoted to me, to alter my opinion— that until affairs are in that position the sheriff is not entitled to poundage. Section 46, sub-section (1), says, "Where the goods of a debtor are taken in execution, and before the sale thereof, notice is served on the sheriff that a receiving order has been made against the debtor, the sheriff shall on request deliver the goods to the official receiver or trustee under the order, but the costs of the execution shall be a charge on the goods so delivered, and the official receiver or trustee may sell the goods or an adequate part thereof for the purpose of satisfying the charge." The meaning is plain, that if a notice of a receiving order having been made is served on the sheriff before sale he is not entitled to poundage; while by sub-section (2), where the goods are sold and the sheriff has realised the money by the sale, he is entitled to poundage. Mr. Willis urged that the intention of the new Act was to improve the position of the sheriff. Doubtless this is so, 1884. and it is done by sub-section (2). To my mind, also, a valid IN RE W. AND reason is afforded for the distinction in the fact that where the J. LUDFORD. goods are actually sold, the amount of the poundage can be readily ascertained. Where goods are not sold in many cases there would be much difficulty in ascertaining this. The intention of the legislature is clearly that under sub-section (1), where the goods are not sold, poundage is not payable; and under sub-section (2), where the goods are sold, the sheriff shall be entitled to poundage. Now as to the costs M. D. Chalmers: I may tell your Lordship that the present is a test case, and the official receiver does not press for costs. Solicitors: The Solicitor to the Board of Trade for the official receiver. Taylor, Hoare & Co. for the sheriff. CASES relied upon or referred to: Miles v. Harris, L. R., 12 C. B., N. S. 550. Mortimore v. Cragg, L. R., 3 C. P. 216; 47 L. J., C. P. 348; 38 L. T. 116. In re Craycraft, Ex parte Browning, L. R., 8 Ch. Div. 596; 47 L. J., Bank. 96; 38 L. T. 364. Armitage v. Jessop, L. R., 2 C. P. 12. |