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Time for execution at common law.
to the time in which judgments at common law were to be executed
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
f De Medina v. Grove, 10 Q. B. 152;
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.
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.
2. Levari.. Goods and profits of the lands.
4. Ca. sa.. Body.
5. Capias utlagatum.. Body, or body,
6. Retorno habendo.. The cattle, &c.e
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
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.
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.
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.
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.
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;"