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nor what is part of the freehold, as doors, windows, &c.; nor apples upon trees, for they belong to the freehold ; nor an estate in fee, or for life; nor a mere equitable interest; nor an equity of redemption; nor things in custodia legis; f nor a mere personal interest, as a right of lien; nor any tenement which cannot be granted over, as the office of filacer, or the like; nor money in the hands of another, as trustee for the debtor; nor money due and owing to the debtor, as a debt from another person, and in the hands of the latter; nor money seized under a fi. fa. and in the Sheriff's hands; nor the goods of a person not named in the writ. From this last proposition it follows, as a corollary, that if A. transfer his property to B., but still remain in possession of it, such possession not being fraudulent, it cannot be taken in an execution against A.n But if the transfer be fraudulent (which is, in all cases, a question for the jury, and not for the Court, to determine), it is void as against creditors; and they remain, as regards creditors, A.'s property, and liable to be seized accordingly. Note, a sale of property, for good consideration, is not, either at common law or under stat. 13, Eliz. c. 5, fraudulent and void, merely because it is made with the intention to defeat the expected execution of a judgment creditor.P Note, also, that an assignment of goods, in fraud of creditors, is valid inter se, and as between either party to it and a stranger; and a Sheriff, claiming to seize the goods, for a judgment creditor, is a stranger within the meaning of the rule, until his authority to act for a creditor be shown,¶

From the rule which forbids the officer to take the property Bankof any one but of the person named in the writ, it follows that ruptcy. property vested in consequence of bankruptcy or insolvency in the

a Com. Dig. Tit. Exec. C. 4. b Gilb. Ex. 19.

c 3 Co. 13; sed qu. as to an estate per autre vie, 29 Car. 2, c. 3; Comb. 291; and an outstanding term, to attend the inheritance, Doe d. Phillips v.. .Evans, 1 C. & M. 450.

d Scott v. Scholey, 8 East, 467; Metcalf v. Scholey, 2 N. R. 861.

e Ibid.; Lyster v. Dolland, 1 Ves. jun. 431; Burdon v. Kennedy, 1 Atk. 739.

f Com. Dig. Exec. c. 3; Letchmere v. Thorowgood, 3 Mod. 236; Lovick v. Crowder, 8 B. & C. 132; Wharton v. Naylor, 12 Q. B. 673; Belcher v. Patten, 6 C. B. 608.

Legg v. Evans, 6 M. & W. 36; Rogers v. Kennay, 9 Q. B. 592. h Dyer, 7 b.


France v. Campbell, 9 Dowl. P. C.

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assignees of a debt or cannot be seized by virtue of a writ against him. By the "Bankrupt Law Consolidation Act, 1849," (12 & 13 Vict. c. 106, s. 133,) all transfers of goods and chattels bona fide made, and all executions against goods and chattels bond fide executed and levied by seizure and sale, before the date of the fiat or the filing of the petition, are valid, provided the buyer or execution creditor had not, at the time of the transfer, or at the time of the sale under the execution, notice of an act of bankruptcy Provided, also, that the transfer was not by way of fraudulent preference, or, if the execution be founded on a judgment or a warrant of attorney, cognovit or judge's order obtained by consent, provided the warrant of attorney, &c., were not by way of fraudulent preference. One need hardly add, that if either notice or fraudulent preference do taint the transaction, the transfer or execution is void. Purchases bona fide, and for valuable consideration, however, are not to be impeached on account of such notice, unless a petition shall be filed or fiat sued out within 12 months after such act of bankruptcy.c A warrant of attorney to confess judgment in a personal action, given within two months of the filing of the petition, and being wholly or in part for an antecedent debt, or money demand; and any cognovit or consent to a judge's order, given within two months in any action commenced by collusion with the bankrupt, and not adversely, or purporting to be given pending an action, when, in fact, it was not so, such bankrupt being unable to meet his engagements at the time, are null and void, whether given in contemplation of bankruptcy or not. Besides, they, or true copies thereof, must be filed within 21 days, otherwise they are null and void. The notice of an act of bankruptcy to have this effect must be given to the execution creditor, or to one of them if more than one, or to his attorney, or semble to a clerk who has so far the management of the business as to have the power of acting on such communication, in the attorney's absence. Notice to the Sheriff, or to the bailiff, is insufficient.f If a notice be given by a trader that he has filed a declaration of insolvency, and a fiat issues thereon within two months, the execution creditor will be deprived of the benefit of his execution.h Notice that the party has committed an act of bankruptcy is sufficient without specifying it.1 A fraction of a

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f Ramsay v. Eaton, 10 M. & W. 27. Pike v. Stephens, 12 Q. B. 465; Pennell v. Stephens, 7 C. B. 998.

h Follett v. Hoppe, 5 C. B. 244; Green v. Laurie, 1 Exch. 335. The 5 & 6 Vict. c. 122, s. 22, is repeated in 12 & 13 Vict. c. 106, s. 70 (" The Bankrupt Law Consolidation Act, 1849").

i Udal v. Walton, 14 M. & W. 260.



day may be inquired into. By the 1 & 2 Vict. c. 110, s. 61, it is Insolvency. enacted, "that in all cases where any prisoner, whose estate shall have been vested in the said provisional assignee under this Act, shall have executed any warrant of attorney to confess judgment, or shall have given any cognovit actionem, or bill of sale, whether for a valuable consideration or otherwise, no person shall, after the commencement of the imprisonment of such prisoner, avail himself or herself of any execution issued, or to be issued, upon any judgment, obtained or to be obtained upon such warrant of attorney, or cognovit actionem, or of such bill of sale, either by seizure and sale of the property of such prisoner, or any part thereof, or by sale of such property theretofore seized, or any part thereof; but that any person or persons, to whom any sum or sums of money shall be due in respect of any such warrant of attorney, or cognovit actionem, or of such bill of sale, shall and may be a creditor or creditors for the same under this Act." Squire v. Huetson judgment was obtained against defendant on a warrant of attorney, and a fi. fa. issued. The Sheriff seized in February, the defendant went to prison in March, and the vesting order was in April. The Sheriff received part of the money before the commencement of the imprisonment and part after that time, and the Court decided that the execution creditor was entitled to what had been realised before and the assignee to what was realised after the commencement of the debtor's imprisonment. It must be assumed (although it does not appear) that the warrant of attorney had been duly filed, &c., according to the 3 Geo. 4, c. 39, and 1 & 2 Vict. c. 110, s. 60; otherwise the execution was void, and the assignee entitled to the whole.d Under 1 & 2 Vict. c. 110, s. 59, a voluntary assignment of all his effects, within three months before the commencement of the imprisonment of the assignor, is fraudulent and void, though made for the benefit of all his creditors. When a person has been After acadjudged a bankrupt, all his personal estate and effects present quired proand future, wheresoever the same may be found or known, and all perty. property which he may purchase, or which may revert, descend, be devised or bequeathed, or come to him, before he shall have obtained his certificate, vest absolutely in his assignees by virtue of their appointment. Notwithstanding, an uncertificated bankrupt may acquire property, and none but his assignees can dispute his title to it. In a like condition was one who had been twice a bankrupt, and not paid 15s. in the pound under the second fiat.f But as "The Bankrupt Law Consolidated Act, 1849," does not

a Bird v. Bass, 6 Sc. N. R. 928; Pewtress v. Annan, 9 Dowl. 828; Hernaman v. Coryton, 5 Ex. 453.

b In Hunt v. Robins, 2 G. & D. 653, the purchaser had taken possession before the commencement of the imprisonment, and it was held that a sale after was good, and not a case contemplated by the Act: and see Hardy v. Tingey, 5 Ex. 294.

c 1 Q. B. 309.

d Biffin v. Yorke, 6 Sc. N. C. 231; Acraman v. Herniman, 16 Q. B. 998. e Jackson v. Thompson, 2 G. & D. 598; Thompson v. Jackson, 4 Sc. N. R. 234 but the Act applies only to such things as can be taken in execution; Sims v. Thomas, 12 Ad. & E. 536.

Herbert v. Sayer, 5 Q. B. 975.


Death of parties.


contain the 127 sect. of the 6 Geo. 4, c. 16, or any like clause, it would seem that one who has been twice a bankrupt, and not paid 15s. in the pound (having a certificate of conformity), is as capable of taking and holding property as if he had never been bankrupt at all. If, therefore, a writ be delivered to the Sheriff, inasmuch as an uncertificated bankrupt may acquire property, he should, except it be for a debt provable under the bankruptcy,a proceed until some act of interference on the part of the assignees; after that, the property, in specie or in proceeds, becomes theirs, and the Sheriff must act accordingly. This act of interference is not, as under some of the insolvent statutes, an act of court (5 & 6 Vict. c. 116, s. 9, and 7 & 8 Vict. c. 96, s. 23), but may be any act indicative of an intent to claim the property.


An insolvent, in like manner, may, unless his assignees interfere, acquire and hold property after the vesting order, and before his final discharge.c

If plaintiff die, after writ issued, it may still be executed; but if defendant die after semble, not.d

In the learned notes to Wheatley v. Lane may be found the following passage:-"A judgment against an executor or administrator, whether by default or upon demurrer, or upon a verdict on any plea pleaded by the executor, except plene administravit, or admitting assets to such a sum, et reins ultra, &c., is conclusive upon him, that he has assets to satisfy such judgment. Indeed, if the executor or administrator plead either a general, or special plene administravit, it is now held that he is only liable to the amount of the assets proved to be in his hands; though the case was formerly taken to be, that if any assets, however small, were proved to be unadministered, the plaintiff was entitled to recover his whole demand from the executor. So that now a judgment against an executor on a verdict upon plene administravit, is only an admission of assets to the extent of the assets proved to be in his hands. If, therefore, upon a fieri facias de bonis testatoris on a judgment obtained against an executor by either of the ways above mentioned, either no goods can be found which were the testator's, or not sufficient to satisfy the demand; or, which is the same thing, if the executor will not expose them to the execution, that is evidence of a devastavit; and therefore it is very reasonable that the executor should become personally liable and chargeable de bonis propriis. And the mode of proceeding is immaterial, because the executor is entitled to the same defence in debt upon the judgment suggesting a devastavit, as in the proceeding by a scire fieri inquiry. The judgment against the executor being thus the foundation of the action, it follows, that no action of debt

a See Davis v. Shapley, 1 B. & Ad. 54; Barrow v. Poile, ib. 629; post, 179. b See Platell v. Bevill, 6 D. & L. 2. e Jackson v. Burnham, 8 Exch. 173.

Thoroughgood's ca. Noy, 73, cited in Ellis v. Griffith, 16 M. & W. 109. e 1 Wms. Saund. 219 f.

suggesting a devastavit by the executor lies against him upon a
judgment obtained against his testator, because that is no con-
fession of assets by the executor, and therefore in such cases
it is necessary to sue out a writ of scire facias against the
executor, to make him a party to the judgment; to which writ
the executor may plead a want of assets, or other plea, which
shows that the plaintiff ought not to have execution against him
upon the judgments. And still less will such action lie against
an executor upon a bond of his testator, suggesting a devastavit in
the executor. But if a man obtains judgment against an execu-
tor, and dies, his executor may, without first suing out a scire
facias, bring an action of debt, upon the judgment against the
executor, suggesting a devastavit; for the action is brought..
against the same person against whom the judgment was had,
and by that judgment assets were admitted. This action may be
brought upon the judgment, upon a bare suggestion of a de-
vastavit, without any writ of fieri facias first taken out upon the
judgment, as was done in the case of Wheatley v. Lane.
the usual course is, first to sue out a fieri facias upon the judg-
ment, and, upon the Sheriff's return of nulla bona, to bring the
action and state the judgment, the writ and return in the declara-
tion, and on the trial, the record of the judgment, the fieri facias,
and the return, will be sufficient evidence to prove the case. If
the Sheriff cannot find any assets, he may, if he pleases, return a
devastavit, as well as nulla bona, to the writ of fieri facias de bonis
testatoris; for the fieri inquiry is only for his security. And he
seems to run no great risk by so doing; for the judgment, and no
assets to be found will be sufficient evidence of a devastavit in an
action against him for a false return."


If a person be charged in execution, and die, his goods and Death while chattels may be taken on a fi. fa. just as if he had never been in execucharged in execution.a This is by the 21 Jac. 1, c. 24, which tion. contains a saving clause as to his lands bona fide sold after judgment, for the benefit of his creditors, but not as to his goods and chattels.

If the Sheriff be directed by the plaintiff or his attorney not Direction to execute the writ, or suspend its execution, he is bound to obey, not to exefor so far he is the plaintiff's agent : directions to his bailiff do

not necessarily amount to directions to him.


The bare entry of an award of a fi. fa. is no satisfaction.d It often happens that two or more writs have been delivered to Several the Sheriff, and are in his possession at the time he makes the writs, prioseizure. When this happens, the maxim qui prior est tempore potior est jure must be his guide; in other words, he is to execute

rity, &c.

See post, p. 203; ante, p. 178. b Levi v. Abbott, 4 Exch. 588.

c See Barker v. St. Quintin, 1 D. & L. 542; Howard v. Cauty, 2 ib. 115;

Walker v. Hunter, 2 C. B. 324. See
form of return, post, 188.

d Holmes v. Newlands, 1 Dav. &
M. 643, 647.

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