1840. NELSTROP v. Exch. of Pleas, property of the bankrupt from the time of the seizure, and it would have been unjust to construe the act so as to defeat that right. Perhaps, if the assignees had not been SCARISBRICK. appointed when the act passed, but the fiat had issued before, we should in that case also construe it so as not to defeat the right of the assignees. But with respect to all fiats issued after the new act has come into operation, we think there is no injustice in saying, that the assignees must take the property subject to the new law." And the other Judges also put the case upon the same ground. It is true, that in Luckin v. Simpson (a), the Court of Common Pleas, in a case similar in its circumstances to the present, (and where even the appointment of assignees was before the passing of the act), have decided that the statute had a retrospective operation so as to protect the execution; but the case of Edmonds v. Lawley was not brought to the notice of the Court, not having been decided until last Hilary Term, whereas Luckin v. Simpson was argued in the preceding Michaelmas Term, although judgment was not given until the present term. Alexander and Cowling, contrà, were stopped by the Court. Lord ABINGER, C. B.-I am of opinion that this rule ought to be made absolute. Assuming for a moment that we ought to adopt the narrow construction of the act of Parliament which is contended for by Mr. Wightman, still we should be entitled to say, on the facts of this case, that there are here no vested rights of the plaintiffs to conflict with the rights of the defendant. The fiat issued on the 18th of July, and the royal assent was given to the act of Parliament on the 19th, but no assignees were appointed until (a) Trin. T. 1840; 8 Scott. : 1840. NELSTROP v. the 31st; and if it were to be held that their appointment Exch. of Pleas, is necessarily to have a reference back, and to operate from the date of the bankruptcy, great injustice would be worked in many cases. In Edmonds v. Lawley, the fiat was issued SCARISBRICK. after the act came into operation, but upon an act of bankruptcy committed before the levy, which was anterior to the passing of the act; and the Court there held the execution to be valid against the assignees. How could the parties know whether any assignees would be appointed at all? Their appointment might not have taken place until months after the seizure and if the effect of their appointment were thus to devest the right of the execution creditor, the injustice would be great indeed. Taking this act of Parliament as it was construed by this Court in Edmonds v. Lawley, and limiting its operation to the case where no right actually vested in the assignees before the passing of the act, that case is exactly in point. But I am not disposed to take so limited a view of the subject, as I go the full length of the doctrine laid down by the Court of Common Pleas, in the case which has been cited as having been decided by them this term. I am of opinion that the proper construction of this act is, that in all cases where the execution creditor bonâ fide issues and levies his execution, and a sale of the goods takes place, before any of the proceedings in bankruptcy, that execution and sale are not to be prejudiced by a previous act of bankruptcy, of which he had no notice. I remember well, when the former act of Parliament on this subject, which was the production of Sir Samuel Romilly, was brought in, I assisted him in preparing the bill, and I know that he was much disposed to have the law then settled in the same way as it is now; for he felt sensibly the inconvenience that would arise from commissioners of bankrupts having the power to devest rights which had been vested before they were endowed with any authority. It was his wish to have remedied this evil, if he thought the public would have gone along with him to NELSTROP v. Exch. of Pleas, that extent, and to have established the law then as it is 1840. at present; but I know, from private communications with him, that he calculated that the legislature would SCARISBRICK. in time become sensible of the injustice of the system, and that the law would sooner or later be altered in the manner it has been by this statute of 2 & 3 Vict. c. 29. I am of opinion, therefore, that in every case where an execution has been duly issued, and neither mala fides nor any knowledge of the fiat of bankruptcy can be shewn to have existed on the part of the execution creditor, the transaction is protected against the bankruptcy and its consequences and that the doctrine laid down by the Court of Common Pleas is both right in law, and in accordance with the justice of the case. The struggle here, on the part of the plaintiffs, is not to give effect to vested rights, but to devest them. The statute ought to be so construed as not to allow those rights to be taken away from the parties who have lawfully asserted them; and I am glad to find that such has been the determination of the Court of Common Pleas upon the subject. ALDERSON, B.—I think we are bound by the decision of the Court of Common Pleas, which is expressly in point; independently of which, however, I entirely concur with the principles which have been laid down by my Lord Chief Baron. ROLFE, B., concurred. Rule absolute. Exch. of Pleas, 1840. In the Matter of the GLATTON LAND-TAX. The stat. 1 & 2 s. 2, which en- or occupier missioners of appear and maintain or re- assessments, twice for the same land, applies only to cases in which two separate bodies of and distinct Com missioners, act ing for different THIS was a rule under the recent stat. 1 & 2 Vict. c. 58, s. 2, calling on the Commissioners of Land-Tax for the Hundred of Norman-cross, in the county of Huntingdon, to appear and maintain, or relinquish, their assessments in the parish of Glatton, of William Margetts, to the land-tax. The affidavit in support of the application stated, that in December, 1824, Mr. Margetts purchased a farm in Holme Fen, in the parish of Holme, in the Hundred of Norman-cross, consisting of about 640 acres; that in the following and each subsequent year the commissioners of land-tax for that hundred had assessed Mr. Margetts for that farm in the sum of 107. 14s. 6d. for the parish of Holme, and in the sum of 71. 16s. 6d. for the parish of Glatton, although no part of the land lay in the latter parish. That in 1831, Mr. Margetts brought an action of trespass against the clerk to the commissioners, in consequence of the seizure of his goods for non-payment of the sum of 71. 168. 6d. assessed upon him in Glatton, when, having to be within shewn that his land was locally situate in the parish of their district or Holme, he obtained a verdict, which was ultimately con- to a case where firmed by the Court of Queen's Bench; that notwithstanding such verdict, the commissioners had annually assessed him, but instead of issuing a distress-warrant, had caused his goods to be seized under a levari facias, whereby he was wholly without remedy. It further appeared, that the commissioners for the parish of Holme were also commissioners for the parish of Glatton. There was some doubt whether Mr. Margetts was, in point of fact, rated cumulatively for his lands, the commissioners stating in their affidavit, that the assessment in Holme was in respect of one portion of his farm, and that in Glatton for another, although they were unable to point districts, have both assessed the same land, each claiming it division, and not the land has been rated same body of twice by the commissioners. In the latter case the remedy is by appeal under 38 Geo. 3, c. 5, s. 23. 1840. Exch. of Pleas, out the particular lands assessed in the respective parishes; but for the purpose of the argument it was assumed that he was rated twice for the same lands. In re GLATTON LAND-TAX. Hill and Gunning shewed cause.-The stat. 1 & 2 Vict. c. 58, on which this rule was obtained, was meant to apply to a case where two conflicting bodies of commissioners, acting for different districts, have assessed a party for the same lands, each claiming it to be within their jurisdiction; and not to a case like the present, where one and the same set of commissioners have rated the occupier twice in respect of the same property. The second section recites, "that in assessing the land-tax, it sometimes. happens that disputes arise as to the division, parish, or place, in which, or in aid of which, particular lands, tenements, or hereditaments, are legally liable to be rated, and by reason whereof such lands, &c., are rated in the several assessments made for two or more of such divisions, parishes, or places respectively; and it is expedient to provide a summary remedy for the relief of the owners or occupiers of such lands, &c., from such cumulative charges of the land-tax, and also to provide the means of ascertaining and determining the division, parish, or place in which, or in aid of which, such lands, &c., are legally liable, and ought to be rated, to the land-tax;" and it then enacts," that upon application to her Majesty's Court of Exchequer, made by or on behalf of the owner or occupier of any lands, &c., by affidavit or otherwise, shewing that, by reason of some doubt or dispute as to the division, parish, or place, in which or in aid of which such lands, &c., are legally liable to be assessed to the land-tax, the same or any person or persons in respect thereof, have or hath been assessed, rated, or charged to the land-tax in the several assessments made for two or more divisions, parishes, or places, and that such application is not made with a view to delay the payment of the land-tax which may be legally |