withstanding that judgment in the Queen's Bench to which I have alluded, to announce to the parties that the opinion we have come to upon this record is, that the Attorney-General is entitled to judgment; and I may say, in prefacing what I am about to state, that we have arrived reluctantly at that conclusion, having regard, as well to the judgment of the Queen's Bench, as to the public inconvenience likely to arise from that opinion. By the last Civil Bill Act (the 6 & 7 W. 4, c. 75), certain officers were directed to be appointed by the Assistant-Barristers for the purpose of executing decrees, and by the 46th section of that Act, it is enacted that "The officer or bailiff so to be appointed shall have full power and authority to "sell goods taken in execution by them by public auction, without "the assistance of a licensed auctioneer;" but by a subsequent Act of Parliament passed in the reign of her present Majesty (1 Vic., c. 43), the power vested in Assistant-Barristers to appoint bailiffs in that way has been repealed, and the execution of civil bill decrees has been remitted back to the condition in which it stood before the passing of that Act of the 6 & 7 W. 4.

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It is conceded upon the pleadings, that the defendant here was not acting as bailiff under the provisions of that Act of W. 4; and it therefore does not afford him protection. Supposing then, that that Act was never passed, the question to be considered is, whether a Sheriff could sell goods seized under a civil bill decree, under the statute imposing duties upon sales by auction without the assistance of a licensed auctioneer?

The Court of Queen's Bench, in the case of The Queen v. Martin (a) came to the decision, that a special bailiff nominated by the plaintiff in the case is not required to take out an auction license, or to procure the assistance of a licensed auctioneer, and that, whether the 6 & 7 W. 4 be repealed or not. The reasons which influenced the Court of Queen's Bench to pronounce that judgment are given at considerable length, they were stated in the course of the argument, and were commented on by both sides during the progress of this case, and so far as I have been able to collect these reasons, they amount in substance to this: That in regard to the public duties of a Sheriff, the obligations imposed upon him to execute, at the peril of a summary process, the executions issuing from the Court, we are to make exceptions in his favour out of the general words of the statute 54 G. 3, c. 82, it being conceded that there is no direct exception in the Act itself. It was, however, urged that the Sheriff being obliged to sell, we were to make the special exception upon that ground as to sales held under civil bill

(a) J. & B. 81; S. C. 4 Ir. Law Rep. 153.

H. T. 1844.

Exch. of Pleas.

THE ATTORNEYGENERAL

V.

MALONE.

THE ATTORNEYGENERAL

H. T. 1844. decrees; and, undoubtedly, these are strong grounds for the arguExch. of Pleas. ment on principle, and had the matter been so presented to the attention of the Legislature, or had it been under discussion while the Act was under consideration, it might have been very justly contended that a public officer, acting under the mandate of a Court of justice, ought not to be subjected to the restrictions imposed by the Act of the 54 G. 3, and possibly the Legislature might have thought fit to relieve him therefrom. But is the case before us one which authorises us to introduce that exception contended for into the statute?

v. MALONE.

The law with regard to exceptions being introduced into statutes, will be found very well and very ably summed up and stated in the judgment of the Master of the Rolls, Sir William Grant, in the case of Beckford v. Wade (a). The question arose there on the Statute of Limitation passed for the Island of Jamaica, and the question discussed was, whether there was an exception in that statute in favour of absentees from that island; and the Master of the Rolls, passing judgment in the Privy Council, decided that there was no exception in their favour, there being none expressed. That Judge goes at full length into the law applicable to exceptions in statutes, and in pronouncing judgment, he says (in page 89), "There ❝is, however, one exception, which, though not contained in the "Act, it is said, must, on a principle of inherent equity, be con"structively introduced into it; that is, an exception in favour of 'persons out of the Island of Jamaica, in which situation the "respondent was at the time when her title accrued; and I believe "has at all times been. I do not know, that she ever was in the "Island of Jamaica. It is said, that our Statutes of Limitation are "held to contain such virtual exceptions in favour of persons beyond "seas, where it happens not to be positively expressed. I have not "been able to find any authority whatever for this doctrine."

Sir William then cites a passage from Lord Coke upon the same subject; and after a great deal of reasoning, which I need not here repeat, he goes on to this passage-" The proposition, that this "construction, under the doctrine of inherent equity, is put upon "our English Statutes of Limitation, is, as I apprehend, altogether "unfounded. General words in a statute must receive a general con"struction; unless you can find in the statute itself some ground for "limiting and restraining their meaning by reasonable construction, "and not by arbitrary addition or retrenchment. I can easily refer to many cases, in which such a construction ought to take place. "One instance is furnished by the first Statute of Wills, the 32d (a) 17 Ves. jun. 87.

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"H. 8, which declares, that all and every person or persons may H. T. 1844. “devise their lands by will: although no explanatory statute had Exch.of Pleas.

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ever passed, I should have thought there would have been no "difficulty whatever in holding, that this statute could not have "enabled infants and persons of non-sane memory to devise by will: "the obvious intention of the statute being to make a will a compe"tent mode of conveying land, it could not be meant to make those capable of conveying by will, who were not capable of conveying "in any other way. It was, however, thought proper, though I "think it was not necessary, to introduce those explanations by "an explanatory statute of the 34th Hen. 8. That shows very "strongly the opinion of the Legislature, that general words in a "statute might, even in such a case as that, have had a general operation, if this explanation had not afterwards been given. The "true rule on this subject is laid down by Sir Eardly Wilmot in his "opinion in the House of Lords on the case of Lord Buckinghamshire "v. Drury (a): he says, 'Many cases have been put, where the law "implies an exception; and takes infants out of general words by "what is called a virtual exception. I have looked through all the cases, and the only rule to be drawn from them is, that, where "the words of a law in their common and ordinary signification are "sufficient to include infants, the virtual exception must be drawn "from the intention of the Legislature, manifested by other parts of "the law, from the general purpose and design of the law, and from "the subject matter of it."

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Now, had the Act before us been silent altogether about Sheriffs, a question might have been raised similar to that in Beckford v. Wade, and it might have been pressed further, adopting the rule of Sir E. Wilmot. But so far from the law being silent on the subject of Sheriffs, we find that the 54th G. 3, c. 82, deals with the matter in question, and deals with it on certain grounds and to a certain extent, and deals with it in plain language; and in that Act this very class of cases, of sales under exceptions, is provided for by declaring that they must be held by a licensed auctioneer. But even if it were not so declared, it would be a strange thing to hold that we could introduce exceptions into an Act of Parliament which deals with the general subject. It would be a strange thing to say that we could add this exception when the whole matter was manifestly under the consideration of the Legislature, which fully intended that its provisions should, to some extent, apply to sales by Sheriffs.

The Act describes what is to be done upon matters being sold under execution. The 24th section gives express directions,

THE

ATTORNEY

GENERAL

บ.

MALONE.

(a) Wilm. 177, see. 194.

THE

H. T. 1844. "That every auctioneer who shall sell by auction any estate, goods, Exch. of Pleas. 'chattels, or effects seized for the benefit of any creditor by or "under the authority of any Sheriff in execution of any judgment, "shall specify in the accounts to be by him delivered under the GENERAL "direction of this Act, the particular estate, goods, chattels, and

ATTORNEY

บ. MALONE.

"effects sold, and also the exact sum levied under such execution; "and the Sheriff or Under-sheriff shall and is hereby required to certify at the foot of such account, that all the estate, goods, chattels "and effects in such account specified, were really the property of "the person against whom such judgment was had and obtained, "and that the same and every part thereof were actually seized in "execution of the same judgment; and every auctioneer who shall "be employed by the assignees under any commission of bankrupt, "shall likewise specify in the account to be by him delivered as "aforesaid, the particular estate, goods, chattels, and effects sold; "and the assignee or assignees under such commission shall certify "at the foot of such account, that all the estate, goods, chattels, and "effects specified were really the property of the bankrupt at the "time of suing forth the said commission; and every such certificate "respectively shall be produced by every such auctioneer to the "person to whom such auctioneer is by this Act directed to deliver "his accounts; and such certificate shall be sufficient authority to "such officer to discharge the said auctioneer from all duty on the "sale of such goods by auction; and if any Sheriff, Under-sheriff, "assignee or assignees shall insert, or.suffer or permit to be inserted "in such account so to be certified, any estate, goods, chattels, or "effects whatsoever, other than such as really were the property of "the debtor or debtors, bankrupt or bankrupts as aforesaid respec"tively; or if any Sheriff or Under-sheriff, assignee or assignees, "shall respectively omit or neglect to certify on such account "within the time prescribed by this Act for the auctioneer to deliver "in his account, the true sum levied, or shall certify thereon any "false sum levied, then and in every such case the party offending "shall for every such offence forfeit the sum of twenty pounds."

It certainly occurred to me that in the consideration of this question in the Queen's Bench, sufficient weight has not been given to the language of the 54th G. 3, nor to its schedule, which provides for this very case. I say this with great respect, because I find a passage in that judgment, from which it appears to me that the special clauses in the schedule were overlooked.

One of the arguments in favour of the Sheriff relied on in that judgment is, that Masters in Chancery are authorised to sell lands, and that their sales are exempted from duty, and that they do not use

THE ATTORNEY

GENERAL

บ.

MALONE.

the assistance of a licensed auctioneer, nor have they been considered H. T. 1844. Exch. of Pleas. to carry on trade or to require a license. Why? Not because of their public character creating any implied exemption, as apparently supposed in the judgment of the Court of Queen's Bench, or because the schedule contains express directions that they shall not be liable to any penalty for not taking out a license; so that it does occur to me that this part of the schedule to the Act did not attract the attention of the Court of Queen's Bench so much as it appears to me to demand, and that if it had, the Judges there would not have pronounced that judgment as reported in the case of The Queen v. Martin.

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The question before us appears to be expressly governed by the schedule to the 54 G. 3, c. 82. The schedule consists of two partsone declaring the duties to be charged, and then comes certain exceptions, which state, that upon certain things being sold, no duties are payable. In the middle of the list of exceptions come these words:"Provided, that nothing contained in the Act to which this schedule "is annexed, shall extend or be construed to extend to prevent any 'person whatever from acting as an auctioneer in any of the sales "herein before exempted from the payment of the duty on auctions, "and that no person so acting as auctioneer at any such sale shall be "required to take out any license for so doing, nor shall any such "person be liable to any penalty under the said Act in respect of 'any such sale, nor on account of such person not having taken out "a license pursuant to the directions of the said Act, any thing in "the said Act contained to the contrary notwithstanding." Now, it has enumerated several matters before as exempt from duty; and, amongst others, it exempts any estate sold before the Masters in Chancery or Remembrancer, and consequently, by the terms of the proviso, such sales are exempted the necessity of a license in the party so selling, as well as from auction duty. After the proviso comes the subsequent part of the schedule of exemptions, in which we find an exception which was very much relied upon in this case :— "Any estate, goods, or effects, sold at auction under the authority of "any Sheriff or other public officer for the benefit of any creditor or "creditors in execution of any judgment, and any estate or effects of "any bankrupt sold by order of the assignee or assignees under any "commission of bankruptcy, and any estate or estates of any banker "or bankers sold by trustees appointed under or by virtue of any "Act in force in Ireland." I may observe that civil bill decrees are not mentioned here, and that this sentence does not refer to them, nor does it in itself contain more than an exemption from duty; but it was not contended that sales under civil bill decrees were