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them according to their priority, which, as to writs of fi. fa., is according to the time of their delivery to him. By executing is here meant, that he is to apply the proceeds so. It is not material whether he seize the goods under the first or under the last writ; for when seized, they are, in contemplation of law, in his custody, under all the writs he then has; and when he sells, he sells under all. Thus, then, he must, in general, apply the proceeds according to this priority. If the proceeds be more than sufficient to satisfy the first, he must apply the surplus to the second, then to the third, and so on.a On the other hand, if the first be avoided by the bankrupt laws," or be void on the ground of fraud, or the like, the proceeds must be applied to the second, and so forth; so if the whole proceeds are exhausted, by a landlord's claim for rent, and a prior writ together, a return of nulla bona is the proper return to make to a second writ. Again, a second or subsequent writ must have priority, if the execution of a former Seizure un- be suspended at the time the other comes. In cases of this der one suf- kind, one actual entry or seizure is sufficient to satisfy the exigencies of all delivered to him; but, there must be an actual entry or seizure of the property under one, before there can arise a constructive one under another of the same property. Thus, a fi. fa. was issued against A., one of two partners, and under it partnership property was seized; afterwards, another was issued against A. and B., and delivered to the same Sheriff, but no actual entry or seizure took place under it, before a fiat in bankruptcy issued against them; inasmuch as under the first, A.'s interest alone was affected, the execution, on the joint judgment, was not served and levied by seizure before the fiat, and the assignees prevailed over the execution creditor.f
Fraudulent With regard to fraudulent executions. If no creditor's rights judgments. intervene, the Sheriff must sell under a writ founded on a fraudulent judgment, for it is void as against creditors; and by implication, it is void, also, as against the Sheriff, when acting in right of a creditor.s The Sheriff is responsible for neglecting to seize and sell, if he have notice of the fraud, or if he could discover it by reasonable inquiry.h
Executing a fi. fa. after service of the copy of the note and grounds of error, unless execution be ordered by the Court or a
After error brought.
Judge, makes the Sheriff a trespasser. Where a writ of error was allowed between the seizure and sale, it was adjudged that he must sell; which he did, and brought the money into Court to abide the event.b
He must enforce the writs within a convenient time after deli- Time of very. He must sell, within a convenient time, without a vendi- executing tioni exponas.
Again, if he continue in possession of the goods, for more than a reasonable time, he is a trespasser. The writ, if unexecuted, does not remain in force for more than one year from its teste, unless properly renewed. It may be executed on any day, except Sunday even on the return day, if it be made returnable on a day certain.
Quantity of His duty is to seize such a quantity of goods only as are goods to be reasonably sufficient to satisfy the amount endorsed on the writ. seized. If, from his negligence, the goods sell at an undervalue, he will Selling at be liable in damages to both debtor and creditor for the injury to an undertheir respective interests. value. There is no implied warranty of title to goods sold at a Sheriff's Warranty sale.f
Every man's house is his castle. An officer cannot break open Breaking any outer door or window, to execute process in a civil suit. But if he find the outer door open, and enter that way; or, if the outer door be opened to him from within, and he enter, he may break open inner doors, if necessary. The privilege, be it observed, extends only to the actual occupier and to his family, and his goods, &c.—to those which are lawfully and without fraud or crime there. Again, it is a dwelling-house alone that is privileged; the outer door, &c., of a barn or outhouse, not connected with the dwelling, may be broken open.h Chambers in the Inns of Court and Colleges are dwelling-houses within the meaning of the rule.i The Sheriff's justification for entering the defendant's dwellinghouse does not depend upon the result of finding or of not finding his goods; but it is otherwise of a stranger's house, for he cannot justify the breaking open the outer or inner door of a stranger's house, unless it turn out that the defendant's goods are actually there; k neither can he justify entering a stranger's house, if none of the defendant's goods be there, although the door be open, and although the Sheriff may have reasonable cause
a See 2 Wms. Saund. 101, i; Belshaw v. Marshall, 4 B. & Ad. 336; 15 & 16 Vict. c. 76, s. 150.
b See 2 Wms. Saund. 101, l.
Playfair v. Musgrove, 14 M. & W. 239; Ash v. Dawnay, 8 Exch. 239.
Aldred v. Constable, 6 Q. B. 381; Gawler v. Chaplin, 2 Exch. 507.
Phillips v. Bacon, 9 East, 298; Mullet v. Challis, 16 Q. B. 240.
f Chapman v. Speller, 14 Q. B. 622. Semayne's ca. 1 Smith's L. C. 39;
Kerby v. Denby, 1 M. & W. 342; D. of
Penton v. Browne, 1 Sid. 181; dist.
iSee Lee v. Gansel, Cowp. 1.
* See Morrish v. Murrey, 13 M. & W. 57; Ratcliffe v. Burton, 3 B. & P. 223; Hutchison v. Birch, 4 Taunt. 627; Cooke v. Birt, 5 ib. 765; Johnson v. Leigh, 6 ib. 245.
to suspect that they are there.a Under a fi. fa. against the goods of an intestate, in the hands of an administratrix, he may justify entering the house of her husband, though no goods be found there.b A bailiff may break open the door of a lodger, having first gained peaceable entrance at the outer door of the house. If the officer be in, and cannot remove the goods without opening the outer door, and neither the defendant nor any one on his behalf be present, whom the officer could ask to open it, he may break it open. A distinction, in this respect, has long prevailed between process at the suit of the Crown and that of a subject. In all cases, where the Crown is party, the Sheriff (if the doors be not open) may break the party's house to do execution, if he cannot enter without; but, before he breaks in, he ought to signify the cause of his coming, and to make request to open the door. The breaking open doors, &c., under circumstances_not justifiable, does not, it would seem, vitiate the execution. It is said in Com. Dig. (Exec.), that the officer may not open a latch. But this seems not to be so. He may, it seems, open the door as others do, who are in the habit of going in.g
The officer enters and seizes part, in the name of the whole; he makes an inventory; leaves a man in possession; and then, within a reasonable time, either removes them off the premises, to a place of safety, until he can sell them, or he sells them on the premises, with the consent of the debtor, or of the person on whose premises the goods are. If the Sheriff delay the sale for an unreasonable time, and by that delay let in a distress, or a petition for adjudication of bankruptcy, he will be liable in damages to the party injured. He may sell them by private contract or public auction. He may sell though out of office. The goods must be sold, if the debt, &c., be not satisfied; in other words, they cannot be delivered to the party, in satisfaction of his debt; nor can the Sheriff retain them, and pay the debt out of his own proper money.m There is no objection to a sale to the plaintiff, at their real value." If an inadequate price be offered, he should not sell, but return that they remain in his hands for
want of buyers.a Possession must not be abandoned; thus, Abandoning where the officer quitted the premises after the seizure, leaving possession. no one in charge of the goods, but taking with him the key of a drawer, wherein he had locked his warrant, it was held an abandonment. As to partnership property; the Sheriff seizes the Partnership whole, or a part, in the name of the whole, and sells the debtor's property. undivided interest therein; the vendee is tenant in common with the other partner. Note well, the property of the other moiety is not affected by the judgment, nor by the execution. The actual or formal seizure of the whole arises from the necessity of the case.c
The statutes incorporating joint stock or other public bodies, in Joint stock general, point out the mode of obtaining the fruits of a judgment and other obtained against their secretary or other nominal party to the public record: when that is so, the statute must be strictly followed. Under some the proceeding is by scire facias; under some, by distress; others make the reserved fund liable; some, again, make no provision at all, but rest by saying that the nominal party sued shall not be personally liable. In the latter cases the fruits of the judgment are obtained by mandamus or proceedings in equity.d
The 56 Geo. 3, c. 50, enacted that no Sheriff should carry off, or Growing sell, or dispose of, for the purpose of being carried off, from any crops, &c. farm, any straw, manure, &c., where by the lease or agreement such things were not to be carried off; that the tenant must give notice of the existence of such stipulation to the Sheriff, and the latter to the landlord, of the fact of possession being taken. It then enabled the Sheriff to dispose of the produce subject to an agreement to expend it on the land; and enacted that no clover, rye grass, or any artificial grass, newly sown, and growing under any crop of standing corn, should be sold or disposed of at all. But, probably, few questions will hereafter arise on this statute, as the landlord has now, by the 14 & 15 Vict. c. 25, the power to distrain on the growing crops of his tenant, for accruing rent; that is to say, so long as they remain on the land, and in default of sufficient distress of the goods and chattels of the tenant; notwithstanding any bargain, sale, or assignment which may have been made or executed of such growing crops by the Sheriffe
How is a lessee's interest to be seized? It has been asserted Lease for that the Sheriff cannot enter to do this. But surely he must years. enter to seize and to assign the lease; for that is a very different thing from his entering after seizure and sale to give the vendee possession of the term, which is all that the case referred
a Keightley v. Birch, 3 Camp. 521 ; form of return, post, 187: and see post, 190, n. (a).
b Blades v. Arundale, 1 M. & S. 710.
Heydon v. Heydon, 1 Salk. 392; Johnson v. Evans, 7 Sc. N. C. 1044; Mayhew v. Merrick, 7 C. B. 250.
d Wormwell v. Hailstone, 6 Bing.
668; Bartlett v. Pentland, 1 B. & Ad.
to, in reality, decides. By the sale, the vendee acquires a right of entry and a right of possession, which he must, if necessary, enforce by ejectment. Again, the Sheriff does not give the purchaser a legal title by merely putting him into possession; he Execution of must execute an assignment. Although the execution on a joint joint judg- judgment must be joint, yet it may be levied upon one only, and he may have contribution against the others. If the Sheriff under a fi. fa. sell goods, and the judgment be reversed, the money, and not the thing in specie, is to be restored; so if a term be sold, the term shall not be restored, but the money.
Title of purchaser.
A bona fide purchaser under a writ of fi. fa. has a good title against all the world. It seems once to have been thought, that if the Inquest as Sheriff had any doubt whether the goods were the defendant's, to property. he might summon a jury de bene esse, and that their inquisition
would, in trespass, be admissible evidence in mitigation of damages; but this is not so now. If the question were whether the Sheriff had acted maliciously or not, it might, perhaps, be admissible on such an issue.
Amount to be levied.h
For what amount is he to levy? Let us suppose the writ indorsed thus: "Levy 100l., besides poundage fees and expenses of execution." The party entitled to execution, whether plaintiff or defendant, may levy these over and above the sum recovered.i What do they consist of? as follows:
To bailiff for executing warrant
a Playfair v. Musgrove, 3 D. & L. 76; 14 M. & W. 239: and see post, p. 199. b Ibid.
Amount to be levied £115 0 6 No matter what extra trouble or expense the Sheriffmay have incurred (whether caused by the debtor's own wrongful act, to pre
c Doe d. Hughes v. Jones, 9 M. & W.
Imray v. Magnay, 11 M. & W.
£ S. d. 100 0 0
5 0 0 0 12 01
0 2 6
1 1 0 0 0 0
not indorsed on the writ; Curtis v Mayne, 2 Dowl. N. C. 37.
15 & 16 Vict. c. 76, s. 123. Reg. Gen. Hil. T. 1853, r. 76. 1 Above £20; under £20, 118.; Reg. Gen. Hil. T. 1853, (Costs.)
This does not apply to appraisement and bill of sale; Phillips v. Canterbury, 11 M. & W. 619; Marshall v. Hicks, 10 Q. B. 19. Duties of excise on sales by auction no longer exist; 8 & 9 Vict. c. 15. He cannot charge for search or discharge; Masters v. Lowther, 11 C. B. 948.