"until an assignee is appointed and qualified and the conveyance
or assignment is made to him, the title to the property, whatever
it may be, remains in the bankrupt."
It is equally plain that when the assignment is made, it
operates retrospectively. The title of the bankrupt in the interval
is defeasible, and when the assignment is made is divested as of
the date when the petition was filed. All titles derived under or
through him, originating subsequently to that date, are, by force
of law and without regard to the knowledge or the motives of the
claimant, overreached and defeated.
Bank v. Sherman,
101 U. S. 403. The
statute declares that the title of the assignee shall thus vest by
relation to the commencement of the proceedings in bankruptcy,
although the property is then attached on mesne process as the
property of the debtor.
It is urged in argument on behalf of the plaintiff in error
Page 104 U. S. 231
that the act divests the title of property held by virtue of an
attachment only when it is so held at the date of the execution and
delivery of the assignment, and not at the time of filing the
petition in bankruptcy, and that consequently when, as in the
present case, the attachment proceedings had resulted in a
disposition of the goods, prior to the actual conveyance to the
assignee, the title to them would not pass to him. To hold
otherwise, it is said, would, in opposition to the plain provisions
of the law, defeat the legitimate operation of an attachment which
had been commenced more than four months prior to the inception of
the bankruptcy proceedings, for it might well be that under such a
writ, property might be held undisposed of at the date of filing
the petition in bankruptcy. But it is equally true that property so
held might remain subject to the attachment at the date of the
conveyance to the assignee, and the supposed difficulty is not
removed by the suggested construction of the act. It is removed,
however, by considering the whole section, from which it appears
that it is the title to property, subject to an attachment, only
when levied within four months next preceding the commencement of
the bankruptcy proceedings, which becomes vested in the assignee by
relation, the same attachment being thereby dissolved as of that
date.
One consequence is that if property of the debtor levied on
under such an attachment has been sold prior to the filing of the
petition in bankruptcy, but thereafter the proceeds of the sale
remain in the hands of the sheriff, or before the assignment have
been applied to the payment of the judgment in the attachment suit,
the rights of the assignee attach to the money and cannot follow
the property sold, for the latter not being subject to the
attachment at the commencement of the bankruptcy proceedings, the
title thereto is thereby transferred to the assignee; but the
attachment being dissolved upon that event, the right to the
proceeds of the sale passes under the assignment, released from the
claims of all parties to the attachment suit, as of the date of the
commencement of the proceedings in bankruptcy. And in such a case,
the plaintiff in the attachment suit, having received the proceeds
of the sale on his judgment, would be liable to an action by the
assignee
Page 104 U. S. 232
for that sum of money had and received to his use, or, if it
remained in the hands of the sheriff, the assignee might become a
party to the action and obtain an order of the court requiring the
amount to be paid directly to himself.
Another result is that if the property has been sold under the
attachment after the commencement of the bankruptcy proceedings, no
title passes by the sale, for the property ceased at that time to
be the property of the bankrupt and became the property of the
assignee, a stranger to the action and not affected by it, and both
the plaintiff in the attachment and the purchaser at the sheriff's
sale would be liable to the assignee for a conversion of his
property -- the one for having caused its sale, the other for
having taken possession of it as owner.
Upon this point there can scarcely be any diversity of opinion,
for it would be difficult to give to this feature of the bankrupt
law any less effect without depriving it of all substantial
operation and defeating its obvious policy. It was undoubtedly
deemed an essential element in any efficient system, the main
purpose of which was to secure to all the creditors of the bankrupt
an equal participation in his effects not only as against his
fraudulent and collusive dispositions, but also as against the
zealous competition among creditors, in their heedless race of
diligence, to obtain priority. For this reason, every title to
property sought to be acquired by a seizure and sale under an
attachment, belonging to one subsequently declared to be a
bankrupt, is defeated if the attachment be levied within four
months next previous to the institution of the bankruptcy
proceeding, and the creditor at whose instance and for whose
benefit the sale was made, and the purchaser who, having acquired
possession of the property, asserts a claim of ownership, are each
liable for a tortious conversion of the property of the assignee
unless, as before stated, the property has been sold under the
attachment before the filing of the petition in bankruptcy, in
which case the title of the assignee vests in the proceeds of
sale.
In
Duffield v. Horton, 73 N.Y. 218, it was decided that
a debtor of the bankrupt whose obligation had been subjected to an
attachment, levied within four months next preceding
Page 104 U. S. 233
the bankruptcy proceedings, was liable to the assignee
notwithstanding he, without actual knowledge of the bankruptcy, had
previously paid it to the sheriff upon a judgment rendered against
the bankrupt in the attachment proceedings. In that case, the court
said:
"The payment by the defendants to the sheriff of the debt due
Yerkes was without authority, and did not discharge the obligation
either to Yerkes or the plaintiffs. The lien of the sheriff was
discharged, and the payment was voluntary. There was no process
against the defendants or their property, neither was there any
judgment or order of any court in obedience to which the money was
paid. The judgment and execution was a general judgment and
execution against Yerkes, and not a judgment specifically
subjecting the debt to the payment of the judgment and requiring
the defendants to pay it or the sheriff to collect and apply
it."
In the course of the same decision, the New York Court of
Appeals intimates an opinion that "the sheriff could not probably
be sued, being an officer of the court, and receiving the money as
such," and cites in support of it the cases of
Johnson v.
Bishop, 1 Woolw. 324, and
Bradley v. Frost, 3 Dill.
457.
The former of these cases,
Johnson v. Bishop, supra,
was an action of detinue brought by the assignee of Loeb, a
bankrupt, to recover possession of goods attached and held by the
sheriff as the property of Loeb & Co., of which firm Loeb was
the sole member. The attachment suit had been brought in a state
court of Iowa, and the action of the assignee in the district court
of the United States for that district. The district court had
dismissed the cause for want of jurisdiction, and the assignee
prosecuted a writ of error to the circuit court. It was admitted in
the opinion of that court, delivered by Mr. Justice Miller, that on
the facts alleged, the title to the goods vested in the assignee as
soon as the assignment was executed, and with that title he
acquired a right of immediate possession; but it was held that he
must apply to the state court for the recognition and enforcement
of his rights, or, waiting till the sheriff had parted with the
possession, prosecute a party who could not shelter himself behind
the jurisdiction of a court of law, and that he could not maintain
an action against the sheriff for the recovery of the possession of
the property and
Page 104 U. S. 234
damages for its detention. "The property," it was said,
"is held by the sheriff under writs rightfully issued, and his
possession is the possession of the court by the command of whose
writ he seizes it. And so long as the proceedings in virtue of
which it was taken are pending, that possession will not be
interfered with by any other court."
In answer to the argument that the bankruptcy proceedings
operated to discharge the attachment at once, without any order in
that behalf, so that the sheriff was left without any authority to
hold the property, the opinion proceeds as follows:
"It may be true that the attachments have ceased to have any
binding force. But whether they have or not is the question, and
this question depends not only upon a proposition of law here urged
upon us, but also upon two questions of fact -- that is, whether
Loeb has been adjudicated a bankrupt and whether he was the only
member of the firm of Loeb & Company. Of the principle of law
the state court is bound to take judicial notice, but of the two
facts stated it is not bound to take such notice. No court is bound
to take judicial notice of the proceedings of another court. If
material to a controversy before it, it must be informed thereof by
the pleadings, and if the allegations are denied, they must be
proven by the record. The state court can have no knowledge or even
notice of the proceedings in the federal court by which its right
to possess and adjudicate the property in question is affected. It
should be informed in a proper way of those proceedings before its
possession is interfered with or assailed."
P. 328. And in support of this conclusion, reliance was had upon
the cases of
Hagan v.
Lucas, 10 Pet. 400;
Pulliam v.
Osborne, 17 How. 471;
Taylor v.
Carryl, 20 How. 583;
Freeman v.
Howe, 24 How. 450;
Ex parte
Dorr, 3 How. 103; and
Buck v.
Colbath, 3 Wall. 334.
The principle of this decision was expressed in the opinion of
the Court in the case of
Doe v.
Childress, 21 Wall. 642, in which Mr. Justice Hunt
said:
"Where the power of a state court to proceed in a suit is
subject to be impeached, it cannot be done except upon an
intervention by the assignee, who shall state the facts and make
the proof necessary to terminate such jurisdiction,"
and adding: "This rule gains whether
Page 104 U. S. 235
the four-months' principle is applicable or whether it is not
applicable."
The case of
Johnson v. Bishop, supra, however, does not
decide the question now before us -- whether, after the state court
has exhausted its jurisdiction over the attached property, the
sheriff as well as the plaintiff and the purchaser may not be
proceeded against for a conversion of the property at the suit of
the assignee, who at the time of the sale had become in law its
owner.
Bradley v. Frost, supra, was such an action, not
distinguishable in its circumstances from the present, and in that
the circuit judge, upon the principle decided in
Johnson v.
Bishop, held that the sheriff was not liable, but not without
expressing doubt of the correctness of his decision. The ground of
his judgment was that the property levied on under the attachment
was at the time the acknowledged property of the debtor, and
thereby came into the lawful possession of the court, was held by
the sheriff as its officer, and sold by him in obedience to a
command directing him to sell, not generally, as in case of an
ordinary execution upon a personal judgment, the property of the
judgment debtor, but specifically, the very property in the custody
of the court, and upon which it acted
in rem.
The case is thus brought within the terms of the first of the
two classes of legal process described in
Buck v. Colbath,
supra,
"those in which the process or order of the court describes the
property to be seized, and which contain a direct command to the
officer to take possession of that particular property"
-- the sale being substituted for the seizure -- in respect to
which, it is said, "he has no discretion to use, no judgment to
exercise, no duty to perform, but to seize the property described,"
and from which, it is added, it follows
"as a rule of law of universal application that if the court
issuing the process had jurisdiction in the case before it to issue
that process, and it was a valid process when placed in the
officer's hands, and that in the execution of such process, he kept
himself strictly within the mandatory clause of the process, then
such writ or process is a complete protection to him not only in
the court which issued it, but in all other courts."
P. 343.
Page 104 U. S. 236
On the other hand, in the case of those writs
"in which the officer is directed to levy the process upon
property of one of the parties to the litigation, sufficient to
satisfy the demand against him, without describing any specific
property to be thus taken,"
it is declared, in the same opinion (p. 344), that
"the officer has a very large and important field for the
exercise of his judgment and discretion.
First, in
ascertaining that the property on which he proposes to levy is the
property of the person against whom the writ is directed;
secondly, that it is property which by law is subject to
be taken under the writ; and, thirdly, as to the quantity of such
property necessary to be seized in the case in hand. In all these
particulars he is bound to exercise his own judgment, and is
legally responsible to any person for the consequences of any error
or mistake in its exercise to his prejudice. He is so liable to
plaintiff, to defendant, or to any third person whom his erroneous
action in the premises may injure."
And
"the court can afford him no protection against the parties so
injured; for the court is in nowise responsible for the manner in
which he exercises that discretion which the law reposes in him,
and in no one else."
It is manifest that the act of the sheriff, for which he is
sought to be charged in the present action, is not within the rule
established as to the latter class of cases, for he neither had nor
exercised any discretion in making the sale, and, doing only what
he was specifically and in terms commanded to do by the order of
the court, the court is responsible for his obedience.
It is argued, however, that the proceedings in bankruptcy, prior
to the sale, had the effect of ousting the jurisdiction of the
state court in the attachment suit, so that thereafter its order to
sell was a nullity, incapable in law of any effect, and therefore
incompetent to protect the officer against the consequences of
executing it. But if the jurisdiction of the court became vacated
in the sense that after the assignment in bankruptcy, its action
was void in respect of all persons and for all purposes, then it
also follows that it thereby lost the legal custody of the attached
property, and the sheriff held it afterwards not officially, but
merely as a private person, and he could not, consequently, defend
against an action of
Page 104 U. S. 237
replevin, brought by the assignee to recover possession of the
specific property. This conclusion, upon the principles and
authorities already referred to, we have already excluded; but the
same reasoning would support the defense of the officer, in an
action for a conversion of the property sold in obedience to the
order of the court, and therefore not by him, but by the court
itself. Otherwise the judge who made the order would be equally
liable for the tort with the sheriff who executed it.
It is true ordinarily and in the case of private persons acting
voluntarily, that in case of a conversion of the goods of another
in which both principal and agent are concerned, both are severally
liable, and the servant cannot justify under orders from a master,
for, as was said by Lord Ellenborough in
Stephens v.
Elwall, 4 Mau. & Sel. 259,
"a person is guilty of a conversion who intermeddles with my
property, and disposes of it, and it is no answer that he acted
under authority from another who had himself no authority to
dispose of it."
But this rule has its limitations, and does not apply even in
cases of private persons exercising a public employment when the
act complained of is in the discharge of a duty to the public
incident thereto, as in
Greenway v. Fisher, 1 Car. &
P. 190, where the defense was that the defendant, who was a common
carrier, had merely shipped the goods in the ordinary course of
business, Abbott, C.J., said:
"The distinction between this case and that of a servant is that
here there is a public employment, and as to a carrier, if, while
he has the goods, there be a demand and a refusal, trover will lie,
but while he is the mere conduit pipe in the course of trade, I
think he is not liable."
And such undoubtedly is the law. The reason and policy of it
apply with even greater force to a person acting in an official
capacity, such as a sheriff, where the act, for the consequences of
which it is sought to make him liable, is the direct and express
command of a court whose precepts he is under the highest
obligation to obey without question and without hesitation.
The rule of duty and of liability is thus stated with
admirable
Page 104 U. S. 238
force by Hosmer, C.J., in
Watson v. Watson, 9 Conn.
140, 146:
"Obedience to all precepts committed to him to be served is the
first, second, and third part of his duty, and hence, if they issue
from competent authority, and with legal regularity, and so appear
on their face, he is justified for every action of his within the
scope of their command."
The action in that case was replevin, and the following extract
from the same opinion is pertinent to the present inquiry. The
learned judge said:
"It was said in the argument of this case that no difference
exists as to the proceedings of an officer, if the plaintiff has no
property in the goods to be replevied, between the taking of
property on a replevin and the taking of the goods of A. upon a
process commanding him to take the goods of B. -- that is, the
caption in both cases is equally a trespass. No remark can be more
unfounded, for the difference is immense and distinctly marked. In
the case of the replevin, the officer does what by legal authority
he is commanded to do, and in the other case he does what he was
not commanded to do. In replevin, the property is identified and
described, and the command is take this specific property. In the
case of a process commanding the taking of the goods of A., without
any identification or description, the command is take the goods of
A., if any such there are, but not the goods of any other person.
From the nature of the case last put, the officer must act on his
own inquiry, and is bound to all the responsibility of his
action."
P. 147.
So in
Savacool v. Boughton, 5 Wend. (N.Y.) 170, the
rule was, as we think, correctly stated by Marcy, J., that if the
subject matter of a suit is within the jurisdiction of a court but
there is a want of jurisdiction arising from some other cause --
for example, as to the person or place -- the officer who executes
process issued on such suit is no trespasser unless the want of
jurisdiction appears by such process.
The same rule was sustained by Nelson, C.J., in
Webber v.
Gay, 24
id. 485. In
Wilmarth v. Burt, 7
Metc. (Mass.) 257, 259, Shaw, C.J., said:
"As a general rule, the officer is bound only to see that the
process which he is called upon to execute is in due and regular
form, and issues from a court having jurisdiction of the subject.
In such case, he is justified
Page 104 U. S. 239
in obeying his precept, and it is highly necessary to the due,
prompt, and energetic execution of the commands of the law that the
should be so."
To the same effect are
Twitchell v. Shaw, 10 Cush.
(Mass.) 46, and
Clarke v. May, 2 Gray (Mass.) 410. The
same principle was applied to the proceedings of a court-martial by
this Court in
Dynes v.
Hoover, 20 How. 65.
In the present case, it is admitted that the state court had
full and perfect jurisdiction in all respects until it was
terminated by the proceedings in bankruptcy. But the fact that put
an end to its jurisdiction did not appear by its own record, and
consequently was one of which the sheriff could not, by legal
possibility, have official notice, and without that he was bound to
obey the order of that court, to whom he was responsible, directing
the sale of the property which, so far as he was concerned, at the
time it was made was an exercise of jurisdiction as legitimate as
the issuing of the original attachment under which the property had
been lawfully taken and held. Indeed the general rule is that where
an attachment has been dissolved, no action can be maintained
against the sheriff for a return of the property until he have
notice by the record of the fact, or if it has taken place, by the
act of the parties,
dehors the record, then not until
notice of the extrinsic facts which have satisfied it has been
brought home to him. Drake, Attachments sec. 426;
Livingston
v. Smith, 5 Pet. 90.
These considerations, leading to the exoneration of the sheriff
from the responsibility sought to be imposed upon him in such
cases, derive additional force from the circumstance that the
transaction which is supposed to entail liability upon him not only
operates retrospectively, but occurred in a different jurisdiction,
to which he was not responsible. The proceedings in bankruptcy were
had in a court of the United States sitting in the District of
Massachusetts. The defendant below was sheriff of a court of the
State of New York. It is entirely true that the act of Congress
prescribing a uniform rule as to bankruptcies, passed in pursuance
of an express grant of power in the Constitution of the United
States, is the paramount law throughout the territorial
jurisdiction of the national government.
Page 104 U. S. 240
It is as truly the law of each state as it is, and because it
is, a law of the United States. The assignment in bankruptcy made
in one district, so far as its operation is matter of law, operates
with the same effect in all districts. And it operates upon the
title to the property of the bankrupt wherever it is situate, so as
to preserve it, according to the provisions of the act, for
distribution under it, and so that the title shall pass, as it
requires, without regard to any dealing with it, which it forbids.
Whatever hardship, if any, may follow to private persons who sell
or buy it and attempt to divert it to their own use, falls upon
them, as in other cases, where titles fail, even in the hands of
innocent, because ignorant, purchasers. But they are volunteers,
seeking only their private interests, and take the chances of all
the consequences of their conduct. The maxim to which they are
subject is
caveat emptor. It is not so with the sheriff,
who, as a public officer of the court, obeys its precepts, regular
on their face, without notice of any want or failure of
jurisdiction; who is not at liberty to exercise any discretion, and
has no choice but to obey. The language of MR. JUSTICE MILLER in
delivering the opinion of this court in
Eyster v. Gaff,
91 U. S. 521,
91 U. S. 524,
though spoken in reference to a different state of facts, is
applicable to the present case. "It is a mistake," he said,
"to suppose that the bankrupt law avoids of its own force all
judicial proceedings in the state or other courts the instant one
of the parties is adjudged a bankrupt. There is nothing in the act
which sanctions such a proposition. The court, in the case before
us, had acquired jurisdiction of the parties and of the subject
matter of the suit. . . . It could not take judicial notice of the
proceedings in bankruptcy in another court, however seriously they
might have affected the rights of the parties to the suit already
pending."
There is no language in the Bankrupt Act that either expressly
or by any necessary implication requires us to hold the officer
liable in such circumstances, nor is its policy defeated or
thwarted by refusing to do so. The opposite conclusion is based
upon an inference from the doctrines relating to the conversion of
personal property, and, in our opinion, is the result of a
misapplication of the principle invoked.
Page 104 U. S. 241
The court below took a different view of the law, following a
prior decision in the same circuit in
Miller v. O'Brien, 9
Blatchf. 270, in which the circuit judge, Woodruff, said:
"It accords with our sense of justice to say that they
[sheriffs] ought not to be held liable for their acts in the
execution of process, done in good faith, without actual notice of
any proceedings in bankruptcy against the debtor."
He nevertheless felt constrained to adopt "the reasoning and the
principles upon which the same question was settled in England
under the bankrupt law of that country," referring to
Balme v.
Hutton, 9 Bing. 471, and
Garland v. Carlisle, 4 Cl.
& Fin. 693.
And these cases have been pressed upon us in this argument as
authorities entitled to be followed. They are entitled, certainly,
to very respectful examination.
The principal case in England is that of
Cooper v.
Chitty, 1 Burr. 20, decided by Lord Mansfield in 1756. It
arose, as did all the subsequent cases, under the Bankrupt Act of
13 Eliz., c. 7, which, after authorizing the appointment of
commissioners for managing and disposing of the bankrupt's estate,
enacted that every direction, order, bargain, sale, and other thing
done by the persons so authorized shall be good and effectual in
the law against the said offender or offenders, debtor or debtors,
&c., and
against all other person or persons claiming by,
from, or under such offender or offenders, debtor or debtors, by
any act or acts had, made, or done after any such persons shall
become bankrupt. The action was trover against the sheriffs of
London by the assignees of a bankrupt to recover the value of goods
levied on and sold under an execution upon a judgment recovered
against the bankrupt, the goods having been seized after an act of
bankruptcy and sold after the assignment was executed. The officers
were adjudged liable for a conversion. It appears from the report
of the arguments and judgment that in no prior case had the sheriff
been held liable in such circumstances, and several were cited to
the contrary. These Lord Mansfield either distinguished from the
case before him or overruled as without authority, and in answer to
the argument of hardship to the officers, laid stress upon the fact
that in the case before him, the sheriffs knew of the bankruptcy
before they sold the goods.
Page 104 U. S. 242
Lord Mansfield's decision in that case controlled the course of
judicial opinion upon the question until
Balme v. Hutton,
2 Cromp. & J. 19, was decided in the Court of Exchequer in
1831. In the course of his opinion in that case, Lord Lyndhurst
said:
"The sheriff does not act of his own accord or for his own
benefit; he acts as a ministerial officer in execution of the
command he receives from a court of justice in the King's name, and
if what he does is, at the time he does it, in strict obedience to
that command; if it be what the court itself, if it could itself
have acted, would have done; and if it be at that time justifiable
by the writ under which he acts -- it is a strong measure to say
that subsequent events shall make that a wrongful act in the
sheriff which, at the time he did it, was rightful, and shall make
him answerable as a wrongdoer for what, at the time he did it, it
was his duty to do."
He also showed by an elaborate review of the earlier authorities
that in such a case, the sheriff had been uniformly protected by
his process, and concluded that
Cooper v. Chitty decided
only that a sale by the sheriff, with notice of the bankruptcy, was
a wrongful conversion by the sheriff and a sufficient foundation
for an action of trover, but that it left the case of the sheriff,
upon a sale without notice, as much protected as before. He then
proceeded to show that the subsequent decisions had overlooked the
distinction on which
Cooper v. Chitty was founded, and
were a departure from the true rule as established by the earlier
authorities, and gave judgment for the defendant. But this judgment
was reversed in 1833 by the Court of Exchequer Chamber.
Balme
v. Hutton, 1 Cromp. & M. 262.
The question came finally before the House of Lords in the year
1837, in the case of
Garland v. Carlisle, 4 Cl. & Fin.
693, where it was settled by a decision against the sheriff, who,
before the passing of the 6 Geo. IV, c. 16, having no notice of a
previous act of bankruptcy committed by a trader, seized his goods
under a
fi. fa., but withdrew upon an arrangement entered
into between the execution creditor and the trader, receiving his
poundage in the ordinary manner. A commission was afterwards issued
on this act of bankruptcy, and it was held that the assignees might
maintain trover
Page 104 U. S. 243
against the sheriff for the goods seized, the receipt of
poundage being considered evidence of a conversion by the sheriff.
The judges were called upon for their opinions, and the majority,
who gave opinions against the sheriff, relied largely upon the
language of 13 Eliz., c. 7, and upon the settled course of
decision, which it was thought to be inexpedient to reverse.
Mr. Justice Vaughan, one of the minority judges, in stating the
ground of his opinion, said (p. 771):
"Being, therefore, of opinion that there is no legislative
enactment by which the sheriff is rendered expressly liable, but
assuming for the sake of argument that the general terms in which
the clauses to which I have referred are expressed may be thought
so large as to be of universal application, and consequently to
comprehend the sheriff, I think, for the reasons I have stated,
that the law would imply an exception in his favor arising out of
his official character and duty, being an officer of justice
compelled by stern necessity to execute the King's writ,
'
Necessitas, quidequid coegit defendit.'"
The final judgment was given against the sheriff. Great stress
was put upon the long established series of decisions to that
effect. Lord Brougham, although concurring, said:
"I may say, however, that I agree particularly with one of the
learned judges, Mr. Justice Coltman, in his expression of opinion
that had the case been an entirely new case, and now to be decided
for the first time, I might have come to a different conclusion
upon it; but that as it is, a whole current of decision unbroken
for so many years, from 1756 to 1831, has disposed of the question,
and we are not now left at liberty to form an opinion upon it. I do
not, however, think that
Cooper v. Chitty absolutely
decided this question, though it certainly decided the principle.
The more that case is examined, the less, as it appears to me, will
it be found to have decided the question, if indeed it does not
rather operate as an argument against the side for which it is now
quoted."
Lord Denman dissented.
The question is now a new one in this Court, and we are not
fettered by an inveterate course of decisions upon it. We are at
liberty, in view of all appropriate considerations, to decide it
upon reason, and not by precedent. And we are satisfied,
Page 104 U. S. 244
upon grounds already stated, that in doing so we shall reach
conclusions entirely satisfactory and supported, as we believe, by
recognized principles of law. It is a sufficient reason, in our
judgment, for not following the English decisions that in 1839,
shortly after the House of Lords had declared its inability to
disregard the course of previous decision, Parliament, recognizing
the injustice and inexpediency of the rule thus finally established
judicially, interposed by the act of 2 & 3 Vict., c. 29, and by
several sucessive acts, which had the effect to protect the sheriff
in the performance of his official duty against such actions as the
present. Indeed, some relief had been introduced by the Bankrupt
Act of 6 Geo. IV, c. 16, passed in 1825.
Edwards v.
Scarsbrook, 3 B. & S. 280;
Slater v. Pinder, Law
Rep. 6 Ex. 228. This legislation we regard as evidence of the
highest character that the rule in question ought never to have
been judicially established. Its effect was not so much to change
as to restore the law. It was in fact a legislative reversal of the
judgment of the House of Lords. It cannot be assumed that Congress
intended, in the Bankrupt Act of 1867, to restore a rule of
liability which had become obsolete in England nearly thirty years
before.
In our opinion, the judgment below should have been for the
plaintiff in error and it is therefore reversed.
The cause will be remanded, with instructions to grant a new
trial; and it is
So ordered.