Time for execution at common law.

to the time in which judgments at common law were to be executed
and how revived. A man by judgment authenticated his debt,
and it gave an authority to the party to sue his execution within a
year and a day; but if he did not, it was presumed to be paid,
and after that time the law allowed him to plead payment and a
release of such recorded debt; and the reason was, because all
judgments were to be rendered effectual within a competent time,
which was the same as in the case of non-claims, viz. a year and a
day; and therefore the pledges that were put in for the principal
adstandum recto were amerciable, as well as the principal, during
the year and the day; and those amercements were issued in pro-
cess by the officers during that time by lev. fa. in the lord's Court
and fi. fa. in the king's Court. And if the party had paid the
money and satisfied the amercements, the judgment stood in full
force, and the party could plead nothing on an execution taken
out after such payment; because the judgments and amercements
did not appear to be satisfied, and therefore the party was put to
his audita querela, in which the execution was discharged. But
the judgment still remained in force, as not being annulled by the
return of a regular execution or by the entry of an acknowledg-
ment of satisfaction upon record. But at common law neither the
party nor his pledges stood to any execution sued out or amerce-
ment affeered within the year and day. And therefore if the party
had not got execution, nor the amercement affeered by the Court,
nor the amercement levied by the officer, there was an end of all
proceedings by way of execution on the same judgment. But
they might bring an action of debt on that judgment, or debt for
that amercement, if it were affeered within the year; and in such
new actions there were new pledges to be put in upon the default
of the defendant's appearing on the first summons, and the de-
fendant might plead a release, because under seal subsequent to
the judgment, as a bar to the action upon that judgment, and the
plaintiff could have no execution at common law.
After the year
was out the defendant could not have pleaded payment, for that
would have been putting it on the oaths of men to overturn the
validity of the judgment. This time of limitation of judgment
was not only in personal but real actions; for though the judg-
ment on a real action settled the right of the land for ever, as in
the personal it did the right of the thing in demand, yet that judg-
ment could not lie dormant for ever, to be executed at any time;
for then dormant judgments would overreach conveyances between
the parties, and therefore there was but a year's time to execute
such judgment, which judgment overreached all conveyances and
forced the party to his audita querela. But after the year the
judgment overreached nothing, but he was put to his sci. fa. on
that judgment and not to his action, for the right of the land had
been already determined, and therefore it was only to revive the
determination touching the lands, unless something had been done
by intermediate conveyances. And so upon annuities, which were

C

a See p. 165.

b To have justice.

22 Edw. 4, 6.

formed upon the model of freeholds, the right of such annuity was settled in one writ and revived by scire facias; but in debt, if the judgment was not executed, the debt was presumed to be paid when the judgment lost its force, and therefore the common law gave no scire facias but a new action."

It has been stated in a former page (p. 165), how, under the Common Law Procedure Act, 1852, judgments are to be revived; and, therefore, a bare reference to it will suffice.

There are a few general maxims, respecting writs of execu- General tion, which conveniently arrange themselves in this place; such as: maxims.

Quando jus domini regis et subditi insimul concurrunt jus regis præferri debet. The Crown cannot be prejudiced by the laches of any of its officers. Writs of execution are judicial; and are so called because they are grounded on the judgment. The writ of execution must accord, in its mandatory part, with the judgment.d A Sheriff is the immediate officer to all the Courts at Westminster to execute writs; and, whether a writ comes to him with or without authority, or be awarded against whom it does not lie, he cannot doubt or dispute its validity, quia parere necesse esi.* No man can be sued for the exercise of his legal right to issue execution on a judgment, until, in doing so, he acts maliciously, and without reasonable and probable cause.f The Sheriff is bound to notice all liberties. He is bound to know the person of every inhabitant within his bailiwick." The Sheriff and Undersheriff shall receive all manner of writs, in any place, and at all times, within the county, when and wheresoever they shall be delivered to them. The legal day is, as between subject and subject, divisible into fractions; but as against the Crown, not so.1 To perfect the execution, no writ (except an elegit) need be returned or filed. He is bound to execute every writ in a reasonable

a Quick's ca. 9 Co. 129 b; Giles v. Grover, 2 M. & Sc. 197; 1 Wms. Saund. 219 g, h, n (t); 2 ib. 709, n. (y). 'Broom's Maxims, 49; Reg. v. Renton, 2 Exch. 220; Reg. v. Edwards, 9 Ex. 32.

b Reg. v. Renton, 2 Exch. 220.

c Co. Litt. 289 b. This maxim still prevails, though ground writs are abolished by "The Comm. Law Proc. Act, 1852."

d Pennoir v. Brace, 1 Salk. 319; Gee v. Fane, 1 Lev. 225; Arnell v. Weatherby, 1 C. M. & R. 831; Bicknell v. Wetherell, 1 Q. B. 916; Webber v. Hutchins, 8 M. & W. 319; Brooks v. Hodson, 8 Sc. N. C. 226; Raynes v. Jones, 9 M. & W. 104; Cobbold v. Chilver, 1 Dowl. N. C. 726; Sherwood v. Clark, 15 M. & W. 764 as to amendment, see 1 Q. B. 916; King v. Birch, 3 Q. B. 425; Brooks v. Hodson, suprà.

e Marshalsea case, 10 Co. 68; Thomas v. Hudson, 14 M. & W. 365; 16 ib.

885; Dalt. ch. 20. Unless a different
obligation be cast upon him by statute
law. See Cheston v. Gibbs, 12 M. & W.
120; Groves v. Cowham, 10 Bing. 5.
That is, erroneous process is a justifica-
tion, 2 Wms. Saund. 101 h, h. He can-
not defend himself under a void writ,
Hooper v. Lane, 10 Q. B. 560.

f De Medina v. Grove, 10 Q. B. 152;
Roret v. Lewis, 5 D. & L. 372.

g

Ante, p. 27.

Hereford v. M'Namara, 5 D. & R. 97. Semble, also his goods and chattels, Dalt. ch. 73; ib. App. ch. 3; but not his land, ib. ch. 63.

i Ib. ch. 20; Brackenbury v. Laurie, 3 Dowl. 180.

What can be seized.

с

time. Writs on civil process cannot be executed on a Sunday.b He is bound to raise (if need be) the posse comitatus. Domus sua cuique est tutissimum refugium; and the like.d

The following seems a convenient analysis of writs of execution :

1. In personal actions. 1. Fi. fa... Goods, &c.

2. In mixed actions

On stat. merchant.
On stat. staple.

2. Levari.. Goods and profits of the lands.

4. Ca. sa.. Body.

5. Capias utlagatum.. Body, or body,
lands and goods.

6. Retorno habendo.. The cattle, &c.e
7. Hab. fa. poss...
Land.
Hab. fa. poss.
with

Ca. sa. or fi.fa.

3. On recognizances. 8. Sci. fa., fi. fa., or elegit... Goods, or

lands and goods.

3. Elegit.. Goods and profits of the lands.

Land and body, or
Land and goods.

a See Brown v. Jarvis, 1 M. & W. 704; Randell v. Wheble, 10 Ad. & E. 719; Mason v. Paynter, 1 Q. B. 980; Clifton v. Hooper, 6 Q. B. 468.

b 29 Car. 2, c. 7, s. 6 and see Samuel v. Buller, 1 Exch. 440.

c See Posse Com., ante, p. 103; 2 Wms. Saund. 345; White v. Chapple, 4 C. B. 630; Howden v. Standish, 6 ib. 509.

The effect of a judgment, and of the delivery of this writ to the Sheriff, upon the goods and chattels of a debtor, has been already explained. What the Sheriff is not only authorised but commanded by it to seize is next to be considered. The forms of writs are given by Reg. Gen. H. T. 1853, Sch. (A), and, as the older ones do, use the words goods and chattels. He must then levy on all the goods and chattels of the person named in the writ (except he be a foreign minister, or the domestic servant of

d Semayne's case, 5 Rep. 91; 1 Smith's, L. C. 39.

Body, lands

and goods.

e For damages or costs or arrears of rent, under 17 Car. 2, c. 7, a fi. fa. or ca. sa. is the process.

f All real and mixed actions, except right of dower, dower unde nil habet, quare impedit and ejectment, are abolished, 3 & 4 Will. 4, c. 27, s. 36.

A ca. sa., it seems, does not lie; Dalt. ch. 27.

h Ante, p. 160.

a

66

chattels.

one, and except bona et catalla ecclesiastica), in which he has any legal saleable interest, general or special, in his own right, or jure uxoris, in possession, or in reversion, or as sole owner, joint tenant, or tenant in common; or in which he had any such interest at the time of the delivery of the writ to the Sheriff, since disposed of otherwise than in market overt. They must be the property of the person named in the writ.d Thus, if he have become bankrupt or insolvent, inasmuch as they belong to his assignees and not to him, they cannot be taken. 'Goods, What are biens, bona," (says Lord Coke,) "includes all chattels as well real goods and as personal. Chattel is a French word, and signifies goods, which by a word of art we call catalla. Now goods or chattels are either personal or real. Personal, as horses and other beasts, household stuff, bowes, weapons, and such like; called personal, because for the most part they belong to the person of a man, or else for that they are to be recovered by personal actions. Real, because they concern the realty; as terms for years of lands or tenements, wardships, the interest of tenant by statute staple, by statute merchant, by elegit, and such like. Bona dividuntur in mobilia et immobilia. Mobilia rursum dividuntur in ea quæ se movent et quæ ab aliis moventur." But by the common law no estate of inheritance or freehold is comprehended under these words bona et catalla.f Again, of chattels, some go to the executor, and some to the heir. As regards execution, this would seem to be a mere nominal division: the distinction would seem to be, not between such as go to the executor, and such as go to the heir, but between such as are capable of sale, and such as are not so. The books point out, amongst other things, the following: moveable goods, as horses, oxen, household stuff, plate, ready money, books, wearing apparel (except what is in actual use),h husbandry utensils not annexed to the freehold, trade fixtures, such as coppers, vats, and the like, fixed by a tenant for the purposes of his trade, and removeable; corn in the barn; fructus industriales, or fruits of industry, as corn growing, artificial grass, and the like,k a term of years, the interest of a tenant from

a Post, p. 174.

b Legg v. Evans, 6 M. & W. 41; Rogers v. Kennay, 9 Q. B. 592.

c Ante, p. 161.

d Smith v. Plomer, 15 East, 607; Manders v. Williams, 4 Exch. 339; post, p. 175.

e Post, p. 176.

f Co. Litt. 118 b.; Bro. Abr. tit. Chattels; Com. Dig. Biens, Assets; Vin. Ab. Executors, W, Y, Z; 1 Wms. Executors, 546, &c.

The King v. Webb, 2 Show. R. 166. h3 Co. 12; Comb. 356; Sunbolf v.

Alford, 3 M. & W. 254.

i Poole's case, 1 Salk. 368; Elwes v. Mawe, 2 Smith's L. C. 114, n.; Amos on Fixtures, 321 (2nd edit.): and see Hellawell v. Eastwood, 6 Exch. 295.

56 Geo. 3, c. 50; post, p. 183: and Wharton v. Naylor, 12 Q. B. 679; Gilb. Exon. 19.

see

1 Palmer's ca. 4 Co. 74; Dyer, 363; Scott v. Scholey, 8 East, 467; The King v. Deane, 2 Show. 85; Taylor v. Cole, 3 T. R. 294; Doe d. Stevens v. Donston, 3 B. & A. 230; Playfair v. Musgrove, 1 D. & L. 78.

What cannot be seized.

с

year to year, a term jure uxoris for the husband's debt," a rentcharge issuing out of a chattel interest, an annuity certain granted by the Crown to a subject, the special property of a pawnee, pledgee, or lessee. And by 1 & 2 Vict. c. 110, any money, bank notes (whether of the Bank of England or of any other bank), checks, bills of exchange, promissory notes, bonds, specialties, or other securities for money belonging to the defendant. The effect of this statute was to put notes and money, which were not seizable before, on the same footing as goods, and to subject them to all the incidents and liabilities of money which forms the proceeds of goods seized.

By the 7 Ann. c. 12, s. 3, all writs against the goods or chattels of any ambassador or other public minister of any foreign prince or state authorised and received by Her Majesty as such, or of the domestic servant of any such person, are utterly null and void, provided, as regards the domestic, he be not a trader within the meaning of the bankrupt acts. No bona aut catalla ecclesiastica can be seized under this writ.g Goods of a testator or intestate in the hands of an executor or administrator cannot be seized in execution of a judgment against the executor or administrator in his own right. But where an executrix used the goods of her testator as her own, and afterwards married, and then treated them as the goods of her husband, it was decided that she had estopped herself from objecting to their being taken in execution for her husband's debts.i Property vested in a trustee, before marriage, for the wife's sole and separate use, cannot be taken for the husband's debt;k but money, paid to her by the trustee, or property purchased by her with the money so paid, belongs to her husband, and may be taken for his debt. The goods of a woman, cohabiting with the defendant, assuming his name, and passing for his wife, cannot be taken for his debt; if she have done no more to estop herself from showing they were her own.m The Sheriff cannot seize landlord's fixtures even though the freehold is in the debtor;"