burrow COPPENDALE versus bridgem and another Saturday that June no one good be  a good return where the good be affect by the defendant bankruptcy see bull  durn this be a action on the case against the defendant as sheriff of  Middlesex for a false return in return no one good to a become facias direct  they to levy debt and S damage on the good of John debonair recover against he  by the plaintiff in the court of common plea a special case be settle and  agree upon at the trial after the general issue plead and a verdict be take  for the plaintiff for S damage subject to the opinion of the court upon the  say case which be as follow it be prove at the trial that the plaintiff sue  out a bill u Middlesex against debonair on the d of may returnable on  Wednesday next after three week from the day of easter that a precept be make  out thereupon and the party arrest the same day that be so under arrest on the  that of the same may he be charge with process out of the court of common plea  at the suit of one Joseph Solomons and be the same day bring by habeas corpus  to Mr just clive chamber in sergeant inn and commit to the fleet charge with  both action that the plaintiff in Trinity term g accord to the course of the  court obtain a judgement against he in the court of common plea for l debt and  S damage that on that June a become facias thereupon issue at the plaintiff  suit to the sheriff of Middlesex returnable from the day of the holy Trinity  in three week which be the that day of June and that on the that of the same  month the defendant be sheriff take diverse good of the say debonair in  execution and levy thereout the clear sum of S and that on the that day of  November the defendant return no one good it be also state that the say  debonair be a trader within the intent of the several statute concern bankrupt  and that he remain in custody at the plaintiff suit from the time of the first  arrest which be on the say d of may as aforesaid until and upon the d of July  follow on which day he be discharge out of custody as to the plaintiff suit  but continue in custody as the say Solomonss suit until the that day of the  same July burrow and that a commission of bankruptcy on the that day of the  say July be issue against the say debonair v post full v Hutchins clerk burrow  er p and he be duly declare a bankrupt on the same day and on the first day of  the same month his effect be in due mariner assigned and the question submit  to the court be whether upon the whole of this case the plaintiff be entitle  to recover against the defendant in this action Mr Ashhurst for the plaintiff  the question be whether Debonaires lie in prison two month will have so far  relation to the time of the first arrest as to affect his good which be take  in execution upon a process returnable before the two month be expire but not  actual return till after he have lie in prison two month the Act of James c  ought to be take favourable for particular creditor as to the case of come v  Coleman Tr W m in cam chess salk and Duncombe v Walter hill c in c b lev and  hill et all v shish pasch James in shower and smith v stracy Tr Ann in person  holt at nisi prius in salk there be a late case than any of these in p g g b  of t tribe v Webber which deny that of smith v stracy and be full in point  against it and he cite Skinner Hintons case and Lord raym coal v Davies et bee  assignee of maul a bankrupt and argue from they that the execution be good to  all intent and purpose and even the plaintiff himself he say will not have be  oblige to refund the money if it have be pay to he upon a return that it be  levy but the sheriff be undoubted liable to the plaintiff demand because the  truth of the return must be take to be what be true at the returnday of the  writ and it must be consider as if it have be actual return upon the day  whereon it be make returnable the case of Cooper et all v city et all b r m g  prove that no wrong will have be do by the sheriff nor can he have be hurt by  burrow return that he have levy the money and have it ready for at the  returnday the man be not a bankrupt and no subsequent relation can exculpate  the sheriff for return no one good Mr Yates for the defendant the question  turn upon two consideration first whether the present return shall be take as  a return make upon the returnday and if so then whether it be a good return as  suppose to be make upon the returnday d whether it be to be take as a return  make upon the subsequent day when it be actual make FirstThe relation be to  the time of the first arrest consequent the good be not the bankrupt good even  at the time when the writ be returnable but be then by such relation the  property of the assignee the defendant debonair himself have then by reason of  such relation no interest in they nor consequent can the plaintiff have any  right to they vest in he by the seizure of they if a judgement be reverse a  plea of nul tiel record be good and as to the plaintiff refund the money if he  have receive it upon a return of its be levy he answer that if the plaintiff  have actual receive the money of the sheriff he must have refund it and he  cite strange bush et all v baker as a proof of his assertion but secondlyThe  sheriff be not call upon to make a return till the that of November which be  long after the bankruptcy and the assignment and no fiction of law shall make  a officer guilty of a false return but here the suppose the writ to have be  actual return at and upon the day be a mere fiction and contrary to the fact  state the sheriff have no right to take the good of the assignee and trover  will lie against he for it if he shall do so Cooper v city m g v ante pa rise  v green where four of these case be cite and discuss davis law relate to  bankrupt pa give a full report of the case of tribe v Webber and the different  report of the case of Duncomb v Walter be there compare and adjust v ante pa v  ante pa burrow er p b r be so determine and the sheriff ought not to be liable  to a action both way burrow Mr Ashhurst in reply this be a complex act of  bankruptcy therefore it differ from a bankruptcy arise upon a single act here  the man be not a bankrupt till he have lie two month in prison the right of  seizure of the good be vest in the plaintiff upon the day of the return and  therefore can not be divest by a subsequent assignment of they and upon the  day when the writ be returnable no body can then say that the defendant will  lie in gaol two month and by so do become a bankrupt this be not like the  reversal of a judgement for here the right to seize the good be actual vest in  the plaintiff therefore the sheriff be guilty of a false return in return no  one good it be the duty of the sheriff to make his return on the lie when the  writ be returnable and he shall not profit by the not return it in time as to  strange rush et all assignee of Ryland v baker though the action may lie in  that case against the defendant baker yet this plaintiff will not in the  present case have be liable to refund the money if he have receive it upon a  return I that it have be levy but if he will the sheriff can not avail himself  of that Lord MansfieldThis bankrupt be first arrest at the suit of the man who  be the present plaintiff against the sheriff he be afterward charge in custody  at the suit of Solomons the first question isWhether the return be false I e  whether these be the good of the bankrupt or not and that depend upon the  bankruptcy of the defendant in the original action if this man debonair be a  bankrupt on the d of may when he be first arrest at the plaintiff suit or even  upon the that of may when he be charge in custody at the suit of Solomons the  good can not belong to he but must have belong to the assignee by relation  backward to that time now the word of the Act be as plain as possible they be  that all and every person c who shall c or be arrest for debt shall after his  or her arrest lie in prison two month or more upon that or any burrow other  arrest or detention in prison for debt shall be account and adjudge a bankrupt  to all intent and purpose from the time of his or her say first arrest this  man be arrest on the d of may and on the that of may be charge in custody with  that and another action and it be admit that he do lie two month in prison  videlicet till the that of July at Solomon suit and till the d of July before  he be discharge as to the plaintiff suit the lie two month in prison be a  strong presumption that the person be insolvent at the time of the arrest and  the Act say that if he lie in prison two month upon that or any other arrest  he shall be adjudge a bankrupt from the time of the first arrest so that here  be plain a act of bankruptcy on the that of may whatever dispute may be make  about there be one upon the d consequent the sheriff return be true if the  sheriff have return that he have levy c and have actual pay the money to the  plaintiff on the that of June which be within the two mouth the sheriff will  have be excuse because it be impossible for he at that time to know that the  defendant will lie two month in prison and therefore he be under a invincible  ignorance of this event but the plaintiff can have have no advantage by this  for still he will have be liable to refund the money although the sheriff may  be excusable in pay it to he but at the time when this return be in fact make  it be then certain true and know to the plaintiff to be true that the man be  become a bankrupt and the good be then the property of the assignee and in the  case of Cooper v city et king it be determine that in such case the sheriff  may and ought to returnnulla good therefore this be a plain case nothing can  support the plaintiff claim but his show that the bankruptcy James c S v ante  pa to burrow er p be not incur till after the that of June which be the time  when the good be take in execution Mr just denison concur when the sheriff  make the return it be then certain true that the defendant be a bankrupt  before the burrow take of the good indeed if he have return the writ upon the  day when it be make returnable perhaps he may have be himself justify in  return that he have levy the good and even in pay the money over to the  plaintiff but yet the plaintiff must have refund it even in that case however  it be here state that the return be make on the that of November which be long  after the relation have take place Mr just FosterThe relation in this case be  in favour of equity and justice and be express direct by the statute and this  return be true for the man be a bankrupt at the time of the sheriff make it by  such relation backward prior to the take of the good if he have make this  return on the day of the return of the writ I can say that even that will have  be a false return because the relation be make to be to the time of the first  arrest by the express word of the statute Mr just Wilmot be of the same  opinion with the rest of the court the Act be positive in make the bankruptcy  to commence from the time of the first arrest wherever the trader shall lie in  prison two mouth upon that or any other arrest and the reason why it shall be  so be very obvious videlicet because it be a presumption of his insolvency at  the time of the arrest for a man in trade must be very low both in point of  fortune and credit who lie two month in prison without be able either to pay  his debt or to procure bail as to a return of this sort make on the that of  June which be the very day upon which the writ be make returnable I have some  doubt about it if that have be the case I be not so clear that he can then  have return no one good because at that time there be no act of bankruptcy and  it be impossible for the sheriff to know that there will be one in future by  the man lie two month in prison and thereby become a bankrupt relative to the  time of the first arrest but there can be no sort of doubt but that at the  time when the return be actual make it be true that the defendant be become a  bankrupt by have lie two month in prison and consequent the good be then the  property of the assignee by relation to the time of the first arrest burrow it  appear to we upon the state of the case that the return be not actual make  till the that of November and indeed if the sheriff have at the very day of  the return of the writ return that he have levy the money and have thereupon  immediate pay it over to the plaintiff there can be no sort of doubt but that  the assignee may nevertheless have recover it back from the plaintiff so that  the plaintiff can not even in that case have profit by such return per cur let  the postea be deliver to the defendant in order to have a judgement of nonsuit  enter thereon