Page images

a direct act of conversion, as by seizure under a fi. fa., and the like. How the privity or connection between him and his officers is established in evidence, and how far, and when, he is affected by their admissions, has been already explained.a


In this action, as a general rule, the proper measure of damages Damages. is the value of the thing taken; and, in assessing them, the jury are not limited to its value at the time of the conversion, but may find its value at a subsequent time in their discretion. When, after an act of bankruptcy, a Sheriff seizes and sells goods, and the assignees bring an action for the conversion, the jury may deduct the expenses of the sale. The price, at which the goods are sold at a Sheriff's sale, is not necessarily the measure of damages, if the sale be wrongful; but when the plaintiff is an assignee, as he must have sold the goods if they had come to him, juries are often induced to return a verdict for no more than the sum at which the Sheriff actually sold. The restitution of the goods may be shown, in mitigation of damages. Special damage may be recovered in this action, if laid in the declaration. When plaintiff succeeds as to part of his claim only, the defendant is entitled to have the issue entered distributively.s



(Stat. 8 Ann. c. 14.)

THE statute enacts "that from, &c., no goods or chattels whatsoever lying or being in or upon any messuage, lands or tenements which are or shall be leased for life or lives, term of years at will or otherwise, shall be liable to be taken by virtue of any execution on any pretence whatsoever, unless the party at whose suit the said execution is sued out shall, before the removal of such goods from off the said premises by virtue of such execution or extent, pay to the landlord of the said premises, or his bailiff, all such sum or sums of money as are or shall be due for rent for the said premises at the time of the taking of such goods or chattels by virtue of such execution, provided the said arrears

a Ante, pp. 228, 229.

b Greening v. Wilkinson, 1 Car. & P. 625; Cook v. Hartle, 8 ib. 568.

c Clarke v. Nicholson, 1 C. M. & R. 724.

d Whitehouse v. Atkinson, 3 Car. & P. 344.

e Countess of Rutland's ca. 1 Roll. Abr. 5; Moon v. Raphael, 2 Bing. N.

C. 310.

Davis v. Oswell, 7 C. & P. 804.

Williams v. Great Western R. C., 8 M. & W. 856.

See Palgrave v. Windham, 1 Str. 212; Hodgson v. Gascoigne, 5 B. & A. 88; Riseley v. Ryle, 11 M. & W. 16; Forster v. Cookson, 1 G. & D. 60; Smallman v. Pollard, 1 D. & L. 904; Cocker v. Musgrove, 9 Q. B. 229; Wharton v. Naylor, 12 ib. 673, as to the general policy of the statute.

Cases with

in the sta


of rent do not amount to more than one year's rent; and in case the said arrears shall exceed one year's rent, then the said party, at whose suit such execution is sued out, paying the said landlord or his bailiff one year's rent, may proceed to execute his judgment as he might have done before the making of this act; and the Sheriff or other officer is hereby empowered and required to levy, and pay to the plaintiff, as well the money so paid for rent, as the execution money." By 11 Geo. 4, and 1 Will. 4, c. 11, the statute is extended to process by pone per vadios out of the Court of C. P. at Durham.a

Upon the statute of Anne it has been decided that an immediate and not a ground landlord is meant. An executor or administrator is entitled to the benefit of the statute as to arrears due to the testator in his lifetime. A trustee of an outstanding satisfied term, assigned in trust to attend the inheritance, is within its provisions.d It extends to an execution at the suit of a defendant for costs, as well as to that of the plaintiff. Goods seized under a capias utlagatum are liable for a year's rent. Under a sequestration issued out of the Court of Chancery, the landlord, it seems, is entitled to a year's rent. Goods seized under an extent in aid are not liable to a year's rent. The statute is not confined to an original demise of entire premises, but applies as well to a sub-lessee; and to goods taken in execution on part of the subject-matter of the original demise. The money claimed must be due as rent; and due for a year immediately preceding the execution. Rent stipulated by lease to be paid in advance is rent due at the time of the seizure, within the meaning of the statute. The landlord seems entitled to his year's rent without any deduction for poundage." m He is entitled to a full year's rent, although he has been used to remit some portion of it to his tenant." Only one year's rent is to be paid, although there be two or more executions." The statute is confined to rent due at the time of the taking; therefore, for rent which accrues after the taking, and during the continuance of the Sheriff in possession, no claim can be made upon the Sheriff: thus a Sheriff, who takes corn in the blade under a fi. ja., and sells it before the rent is due, is not liable to the landlord under the statute, that is, for rent accruing subsequently to the seizure and sale, although he has given notice, and although the corn be not removed from the premises until long

[blocks in formation]

afterwards. Again, the statute contemplates a tenancy to which the right of distress is incident, a tenancy subsisting at the time of the execution; therefore, no claim can be made upon the Sheriff for rent which has accrued due since the day of the demise laid in an ejectment for the same premises; for, by bringing ejectment, the landlord treats him as a trespasser and not as a tenant. The statute applies only to cases where the judgment creditor claims adversely to the landlord, and not where the execution is sued out at the instance of the landlord himself. The landlord has a right to his year's rent whether the goods be his tenant's or not;d for instance, where under a writ of fi. fa. the Sheriff levied on, and removed goods, not the property of the judgment debtor, the owner recovered by action the whole proceeds of the levy. Before the removal of the goods from the premises on which they were, the Sheriff had notice of a year's rent being due, which he did not pay: held, notwithstanding the Sheriff had paid the whole proceeds of the levy to the owner of the goods, that he was liable under this statute for removing the goods without paying the



In order to make the Sheriff liable, he must know of the land- Notice of lord's claim, before removal. Express notice is not required by landlord's the statute; the notice, usually given to the Sheriff, is only for the purpose of establishing his knowledge of the landlord's claim; and if that knowledge can, by any other means, be brought home to him, at any time before he has parted with the money, he will be compelled to pay the rent. If the execution be overreached by a petition in bankruptcy, the Sheriff, in an action by the assignees, can only, it seems, avail himself of payment to the landlord, by proving that it was made before the filing of the petition, and without notice of a prior act of bankruptcy.h

A bill of sale is not a removal of the goods within the meaning Bill of sale. of the statute.i

It may happen, that the goods on the premises are insufficient Where not to satisfy the year's rent; if so, he should withdraw. If he sufficient on choose to sell, the Court will not stay proceedings, in an action premises to against him, on paying over the proceeds of the sale.k If the execution creditor (upon notice) refuse to satisfy the landlord's claim, the Sheriff must not proceed to a sale, but withdraw and return the facts.1

satisfy landlord, &c.

a Gwilliam v. Barker, 1 Price, 274; Hoskins v. Knight, 1 M. & S. 245. A landlord may now, by the 15 & 16 Vict. c. 25, distrain upon growing crops for one year's rent, even while they are in custodiâ legis. Ante, p. 384.

b Hodgson v. Gascoigne, 5 B. & A. 88; Riseley v. Ryle, 11 M. & W. 16. Ibid.

d Taylor v. Lanyon, 6 Bing. 536.
e Forster v. Cookson, 1 G. & D. 61.

[blocks in formation]

Remedy by landlord.



The landlord's remedy against the Sheriff is,—1. By action on the statute. 2. By motion to the Court. An action for money had and received will not lie against the Sheriff for the year's rent, neither before nor after the sale.b


[ocr errors]

The declaration states the nature or terms of the subsisting tenancy the arrear of rent the levy-notice before removal and breach of duty-viz. the removing the goods and chattels without paying or satisfying the plaintiff the arrears of


The wrongful act alleged is not the original taking, but the removing without satisfying the rent. The plea of "not guilty therefore, as at present restricted, simply puts in issue the fact of removal without satisfying the year's rent: if intended to be disputed, the terms of the tenancy-arrears of rent—the levy— notice, &c., must be denied, and all matters in confession and avoidance specially pleaded.

Evidence. It is enough to show that some goods were removed; the plaintiff need not show that enough to satisfy the rent was not left. To prove the rent due (if denied), the tenant himself is a competent witness. In Harrison v. Barry, it was held sufficient to prove the occupation by the tenant, and that it was for the Sheriff then to show that the rent had been paid. The landlord is a competent witness. If the rent be due under a lease it must be produced.f


Motion to

The damages are not limited to the amount produced by the sale.g

The motion to the Court is an application to the equitable juristhe Court. diction of the Court, to have restitution, to the amount of the

goods sold, if less than a year's rent; if more, then to have so much as will satisfy a year's rent. Indeed, this seems to be the only remedy (independently of its being a more speedy one under any circumstances) when the removal takes place before notice of there being rent due; for, upon motion, the Court will give relief to the landlord, at any time while the proceeds remain in the Sheriff's hands.h

a Barsham v. Bullock, 2 P. & D.241; Reid v. Poyntz, 8 Dowl. 410.

b Green v. Austin, 3 Camp. 260.

c See Bristow v. Wright, 1 Smith's L.
C. 324.

d Collyer v. Speer, 2 B. & B. 67.
e 7 Price, 690.

f Augustien v. Challis, 1 Exch. Rep. 279.

Foster v. Hilton, 1 Dowl. 38; Calvert v. Joliffe, 2 B. & Ad. 420.

Arnitt v. Garnett, 3 B. & A. 442 ; ante, p. 237.



A SHERIFF is bound ex officio to know the person of every one in his county. He must likewise execute every writ in a reasonable or convenient time; and in the most effectual way. Hence it follows, that if a party against whom he holds a writ, does not abscond, but continues in the daily exercise of his usual occupation, appears publicly as usual, is visible to every person that comes to him about business, and the bailiff neglects to arrest him upon proof of these facts, without proof of express notice to him of such information as would enable him to identify and arrest the party, the Sheriff is liable in damages for a breach of duty.a

If the Sheriff, having a writ of execution delivered to him, unnecessarily delay putting it in force, an action lies against him, at the suit of the execution creditor, though no actual pecuniary damage has arisen from the default. As regards a writ of capias; it is equally the duty of the Sheriff, to arrest on the first opportunity, and an action will lie against him, even before the return day of the writ, if made returnable on a day certain, provided some actual damage has resulted to the plaintiff: a default, after Declaration the writ is returnable, implies legal damage.

The declaration (if the wrongful act have taken place on mesne process) should state the cause of action, the writ of summons at the suit of the plaintiff, the judge's order, issuing of capias, delivery to the Sheriff, the debtor's being within the Sheriff's bailiwick, and that a reasonable time had elapsed for making the arrest, but that defendant had not done so; that the month had expired, and still in default; the special damage. If on final process (the order, writ of summons, and capias, will, of course, be omitted) the declaration should state the judgment, delivery of writ, &c.; special damage must also be alleged, if the facts warrant the allegation, although not indispensably necessary for the maintenance of the action. It is usual to add other counts, as for an escape, and the like: this, of course, depends on circumstances, Pleas. which cannot be, à priori, determined.

The breach of duty or wrongful act here alleged is, the not arresting within a reasonable time; if the cause of action, writ, delivery, or any other material averment be also in dispute, it must be denied, and all matters in confession and avoidancein excuse or justification-must be specially pleaded.

a Ante, p. 171; and Beckford v. Montague, 2 Esp. 475; Howden v. Standish, 6 C. B. 509.

b Randell v. Wheble, 10 Ad. & E. 719; Williams v. Mostyn, 4 M. & W.

145; Wylie v. Birch, 3 G. & D. 636;
Clifton v. Hooper, 6 Q. B. 476.


Williams v. Griffiths, 6 D. & L.

« PreviousContinue »