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Full text of "A compendium of sheriff law : especially in relation to writs of execution"

FEBRUARY, 1903. 

VALUABLE LAW WORKS 

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( 2 ) 



A COMPENDIUM 



OF 



SHERIFF LAW, 



ESPECIALLY IN RELATION TO 



WRITS OF EXECUTION. 



BY 

PHILIP E. MATHER, 

SOLICITOR AND NOTARY, 
FORMERLY UNDER-SHERIFF OF NEWCASTLE-UPON-TYNE. 



LONDON : 

STEVENS AND SONS, Limited, 119 & 120, CHANCERY LANE, 

SWEET AND MAXWELL, Limited, 3, CHANCERY LANE, 

gato Publishers anb §ao\tat\\tt9. 

1894 



MAZ07 s 
l?94 



LONDON : 
FEINTED BY C. F. EOWOETH, GEEAT NEW STEEET, FETTEE LANE, B.C. 



5 



h 



TO 



The Honourable Sir GAINSFOED BEUCE, D.C.L., 

ONE OF THE JUDGES OF THE QUEEN'S BENCH DIVISION OF 
HER MAJESTY'S HIGH COURT OF JUSTICE, 

TO* Moxk 



BY PEEMISSION 



RESPECTFULLY DEDICATED. 



rt2 



PEEFACE. 



In preparing this Book I have aimed at supplying 
a good practical work both for under-sheriffs and 
the legal profession generally, especially with regard 
to the relative rights and duties of litigants, the 
sheriff and third parties in case of Execution. I have 
accordingly omitted matter of mere historical interest 
and minimized reference to more or less obsolete 
procedure. This Work, moreover, purports to be a 
Compendium of Sheriff Law rather than a Treatise 
on the subject, the former apparently being a more 
useful form. 

Full information will be found in the opening 
chapters as to the appointment, qualification, prece- 
dence and dress of the sheriff, the appointment of 
the under-sheriff and other officers, with special refer- 
ence to the office of Secondary of the City of London, 
and also the duties of the sheriff on the expiration 
of his term of office. 

Whilst I have dealt individually with all the 
various Writs of Execution, special prominence has 



VI PREFACE. 

been given to the most frequent writ, Fieri Facias, 
in connection with which I have treated of informa- 
tion regarding matters more or less applicable to 
Writs of Execution generally. Four important 
subjects connected with Execution, viz. : — Com- 
panies, Husbandry Provisions, Fixtures, and Married 
Women's Property — have been discussed in their 
relation to Execution ; and the fullest information 
has been given with regard to the subjects of, and 
procedure in, those adverse claims with which the 
sheriff is frequently confronted in Execution, viz.: — 
Landlord's Claim for Rent, Bills of Sale and Bank- 
ruptcy (including Arrangements with Creditors and 
Voluntary and Fraudulent Dispositions of Property), 
])rominence being given to the important subject of 
Bills of Sale. The sheriff's relief by way of Inter- 
pleader has also been dealt with at length. 

Of special interest and service to sheriffs and 
under-sheriffs will be found those chapters which 
treat especially of their duties in connection with 
Assizes and Sessions, Criminal Execution, and the 
Assessment of Damages and Compensation. The 
concluding chapters are devoted to the subjects of 
the Liability and Rights of and Remedies against the 
Sheriff, and the Sheriff's Fees and Accounts. 

It was originally intended to deal with the 
sheriff's position at Parliamentary Elections, but his 



PREFACE. yii 

duties as returning officer being so fully treated in 
standard works on Parliamentary Election Law, I 
ultimately decided to avoid unnecessarily lengthening 
this Work by setting out that branch of the sheriff's 
duties. 

With a view to convenience of reference, I have, 
as far as possible, inserted the applicable forms and 
set out the titles of cases, statutes, and other autho- 
rities in the body of the Work, whilst I have repro- 
duced in a separate chapter those Rules of the 
Supreme Court, 1883, and the Crown Office, 1886, 
which especially bear upon the subject of this 
Book. 

For valuable help in compiling this Work my 
cordial thanks are due to Messrs. F. J. Greenwell, 
Edgar Meynell, C. Johnston Edwards, and J. M. 
Bailey, Barristers-at-Law, to the Under-sheriffs of 
the counties of London, Essex, Oxford, York, Dur- 
ham and Northumberland, to the Secondary of the 
City of London, and to Mr. Robert Holtby, Deputy 
Clerk of Assize and Clerk of Arraigns, North- 
Eastern Circuit. I am also indebted to Mr. Hugh 
Morrison Rose, Barrister-at-Law of the Middle 
Temple, for the preparation of the General Index 
and Tables of Cases and Statutes, and for other 
valuable assistance. I have been careful to promi- 
nently indicate all quotations, especially in view of 



Vlll PREFACE. 



my Work purporting to be a Compendium. More- 
over, any substantial quotations from modern text- 
books are made with the sanction of the authors, 
and I take this opportunity of specially acknowledging 
my obligation to them in this respect. 



PHILIP E. MATHER. 



Newcastle-upon-Tyne. 



( i* ) 



TABLE OF CONTENTS. 



PAGE 

Table of Cases Cited . . . . . . . . xix 

Table of Statutes Cited . . . . . . xxxiii 

Table of Eules and Orders Cited . . . . . . xliii 

Table of Abbreviations . . . . . . xlv 

Addenda et Corrigenda . . . . . . . . xlviii 



CHAPTEE I. 
Appointment of Sheriff and His Officers. ... 1 — 19 



Appointment and Qualification of Sheriff 

.Under- Sheriff 

Precedence 

Dress 

Sheriff's London Deputy 

Bailiffs 

Franchises, &c. 



1 
6 
9 
11 
11 
12 
18 



CHAPTEE II. 
Outgoing Sheriff 20 



CHAPTEE III. 
General Practice 21 — 50 

Introductory . . . . . . . . . . . . 21 

Practice under Eules of the Supreme Court, 1883 . . . . 21 

Practice under Crown Office Eules, 1886 . . . . . . 34 

Procedure genorally as to tho Issue of Warrants and Execution 

of Writs .. .. .. .. . . .. 47 

Procedure against Sheriffs, &c, for not Executing Writs . . 49 



TABLE OF CONTENTS. 



CHAPTEE IV. 

Writ of Fieri Facias 



Introductory 

Forms of Writ 

Indorsements on the Writ of Execution 

Warrant 

Time of Execution 

Place of Execution 

Several Writs — Priority of Execution . . 

Concurrent Writs 

Successive Writs 

Seizure 

What Seizable and Not Seizable 

Stay of Execution 

Death of Parties 

Withdrawal from Possession 

Incidental to Seizure 

Duties of Sheriff on Service of Notice of Eeceiving Order 

Sale 

Beporting Eesult of Execution, Eeturn, and Accounting 

Proceeds 
Forms of Eeturn 
Fees 



PAGE 

51—98 



52 
53 
57 
61 
62 
63 
63 
65 
66 
66 
70 
80 
81 
81 
82 
83 
84 



for 



87 
94 
98 



CHAPTEE V. 






Writ of Elegit 


99 


— 116 


Introductory 




. 99 


Forms of Writ 


• • • 


. 103 


Execution of Writ 




. 106 


Inquisition 


• • . 


. 106 


Charge to the Jury 




. 107 


Juror's Oath and Affirmation 


• • • 


. 107 


What may be extended 




. 108 


What may not be extended 


. . . 


. Ill 


Adverse Claims 




. 112 


Several Writs and Priorities. . 




. 113 


Finding of the Inquisition 




. 114 


Delivery of the Lands 


• • • 


. 114 


Eeturn 




. 114 


Forms of Eeturn 




. 115 


Fees . . 




. 116 



TABLE OF CONTENTS. 



XI 



CHAPTER VI. 
Writ of Venditioni Exponas 



Introductory 
Form of Writ . . 
Execution of Writ 

Warrant . . 
Return 

Sheriff's Liability 
Fees 





PAGE 




.. 117 — 120 




.. .. 117 


, . 


.. 118 




.. ..118 


. . 


.. 118 




.. .. 119 


, . 


.. 120 




.. ..120 



CHAPTER Vn. 

Writ of Distringas Nuper Vice Comiteji 



Introductory , . 
Form of Writ 



121 

121 
121 



CHAPTER VIII. 

Writs of Sequestration and Fieri Facias De Bonis Eccle- 

siasticis 123 



CHAPTER IX. 

Writ of Habere Facias Possessionem 



Introductory . . 

Forms of Writ 

Issue of Writ . . 

Execution of Writ . . 
Bond of Indemnity 
Forms of Warrant 

Return of Writ 

Forms of Return 

Fees 

Incidental 



125—131 

125 
125 
126 
127 
127 
128 
130 
130 
131 
131 



Xll 



TABLE OF CONTENTS. 



CHAPTEE X. 
Writ of Delivery 



Introductory . . 
Forms of "Writ . . 
Execution of Writ 
Fees 



PAGE 

132—134 

.. 132 

.. 133 

.. 134 

, ..134 



CHAPTEE XI. 








135- 


—153 


Introductory 
Form of Writ 




. 135 
. 138 


Execution of Writ 




. 139 


Form of Warrant 


. . . 


. 139 


Inquisition 

Mode and Extent of Seizure 


• 


. 140 
. 141 


Order of Extents 


. 


. 143 


What may be taken (comprising Crown's Lien) 
What may not be taken (or only taken subject to 
Claims, &c.) 


Superio 


. 144 

r 

. 146 


Crown's Priority 

Disputing Crown Debt and Adverse Claims 




147 
. 149 


Discharge of Debtor 

Eeturn on Inquisition 

Delivery of Lands, Goods, and Chattels 

Sale .. 


. . . 


. 150 
. 150 
. 152 
. 152 


Fees 




. 153 


CHAPTEE XII. 






154 


—205 


Introductory 
Forms of Writs 




. 154 
. 162 


Forms of Orders for Arrest and Committal 




. 168 


Forms of Warrants 


. . . 


. 170 


Execution of Writs 




. 174 


(1) Initial Steps 

(2) Arrest 

Time of Arrest 

Mode of Arrest 

Place of Arrest 

Exemptions from Arrest 

Non-Exemptions from Arrest 

The Sheriff's Relative Position in Case of 

Liability of Third Parties for Obstructing 


Privileg 
Arrest . 


. 174 
. 176 
. 176 

. 177 
. 181 
. 182 
. 186 
e 187 
. 187 



TABLE OF CONTENTS. 



Xlll 



Execution of Writs — continued. 


PAGE 


(3) Escape and Eescue 


. 188 


(4) Bail . . . . . . . . . . . 


. 190 


(5) Security 


. 191 


(6) Discharge . . . . . . . . 


. 191 


(7) Re-arrest and Detention 


. 196 


(8) Several Writs . . . . . . . . . 


. 196 


Return of Writs 


. 198 


Forms of Return . . . . . . . . ... 


. 201 


Incidental 


. 205 


Fees . . . . . . . . . . ... 


. 205 



CHAPTER XIII. 

Writs of Venire Facias and Distringas (Process in con- 
nection "with Indictments) 206 — 210 

Introductory . . . . . . . . . . . . 206 

Forms of Writs . . . . . . . . .... 207 

Execution of Writs . . . . . . . . . . 208 

Fees .. .. .. .. .. .... 210 



CHAPTER XIV. 

Writ of Abatement, or De Nocumento Amovendo 



211 



Introductory 


. 211 


Form of Writ 


. 211 


CHAPTER XV. 






I. Fines on Indictments and Penalties on Affirmance of Con- 


viction 


. 213 


Forms of Writs 


. 214 


Execution of Writs 


. 216 


Forms of Warrants 


. 216 


Forms of Returns 


. 217 


Fees 


. 217 


II. Sessions and Assize Fines, Estreats, &c. 


. 218 


Execution 


. 221 


Form of Writ 


2 2 - 


Forms of Warrants 


. 222 


Fees 


. 223 


III. Customs and Excise Penalties 


. 223. 



XIV 



TABLE OF CONTENTS. 



CHAPTEE XVI. 





PAGE 


w btt nv Scire Facias. 


224 


Introductory 


..224 


Execution of Writ . . 


.. .. 225 


Fees 


..225 


CHAPTER XVII. 






226—231 


Introductory 


..226 


Execution 


.. ..227 


Returns 


..229 


Forms of Returns and Inquisition 


.. ..229 


Fees 


..231 



CHAPTER XVIII. 

Writ of Restitution. 



Introductory . . 
Form of Writ 
Execution of Writ 
Fees 



CHAPTER XTX. 

Execution against Companies. 



Preliminary . . . . . . . . , 

Effect of Registration of Companies 

What may be Sequestered and Taken in Execution . 

Statutory Provisions for Protection of Creditors 

Adverse Claims 

Stay of Proceedings under Winding-up of Companies 

Execution against Shareholders 



232 



.. 232 
.. 232 
.. 233 
.. 233 



234—243 

. 234 

. 235 

. 235 

. 237 

. 237 

. 238 

. 242 



CHAPTER XX. 

Husbandry Provisions : Their Effect upon Execution. 244 — 248 



TABLE OF CONTENTS. 



XV 



OHAPTEE XXI. 

PAGE 

Fixtures and Execution thereon 249 — 269 

Introductory . . . . . . . . . . . . 249 

Fixtures between Landlord and Tenant . . . . . . 254 

Fixtures between Mortgagor and Mortgagee . . . . 260 

Fixtures between Heir and Executor, Tenant for Life and 

Remainderman, and Tenant in Tail and Reversioner . . 266 



CHAPTER XXII. 

Execution in Relation to Married Women. . . 270 — 284 



Property at Common Law 

Property under Married Women's Property Acts 

Settlements 



.. 270 
.. 276 
.. 284 



CHAPTER XXLLT. 
Landlord's Claim for Rent. 



285—290 



CHAPTER XXIV. 




Bills of Sale 291 — 348 


Synopsis of Statutes 


. . 291 


Forms of Bills of Sale . . . . . , 


. 307 


What constitutes a Bill of Sale . . 


. 308 


What may be the Subject of a Bill of Sale 


. 317 


Formalities to be observed 


. 319 


(1) Statement of Consideration 


. 319 


(2) Description of Chattels 


. 323 


(3) Defeasance, &c. 


. 325 


(4) Form 


325 


(5) Attending Execution 


. 337 


(a) Description of Parties 


. 337 


(b) Attestation 


. 339 


(c) Affidavit of Execution and Attestation 


. 341 


Registration 


. 343 


Grantor's continued Possession 


. 345 


Grantee's Seizure or taking Possession 


. 347 


Consolidation 


. 348 


Transfer or Assignment of Bill of Sale 


. 348 



XVI 



TABLE OF CONTENTS. 



CHAPTER XXV. 






PAGE 


Bankruptcy, Arrangements with Creditors, and Voluntary 


or Fraudulent Dispositions of Property. . . 


349—372 


I. Bankruptcy 


.. 349 


Available Acts of Bankruptcy 


.. ..349 


Receiving Order 


.. 351 


Stay of Proceedings 


.. ..353 


Discharge of Bankrupt 


.. 354 



Relation back of Trustee's Title and Commencement of 

Bankruptcy . . . . . . .... 356 

Extent of Bankrupt's Property divisible amongst Creditors 356 

Effect of Bankruptcy on Antecedent Transactions . . . . 358 

Small Bankruptcies . . . . . . . . 366 

Supplemental Provisions . . . . .... 366 

II. Arrangements with Creditors . . .. .. .. 366 

Statutory Arrangements . . . . . . . . 366 

Private Arrangements . . . . . . . . 367 

ILL Voluntary or Fraudulent Dispositions of Property .. .. 369 



CHAPTER XXVI. 



Interpleader 371 


J— 403 


1. Introductory 


. 373 


General 


. 373 


When Sheriff Relieved 


. 377 


When Sheriff not entitled to Relief 


. 379 


II. Procedure 


. 381 


Application 


. 381 


Hearing 


. 382 


Issue 


. 386 


Judgment 


. 387 


Costs 


. 388 


(1) Preliminary 


. 388 


(2) When Sheriff entitled to Costs 


. 389 


(3) When Sheriff not entitled to Costs 


. 391 


(4) When Sheriff to pay Costs 


. 393 


(5) When each Party to pay his own Costs 


. 394 


New Trial 


. 394 


Appeal 


. 395 


Forms of Notices, Interpleader Orders, &c. 


. 398 



TABLE OF CONTENTS. 



XV11 



CHAPTER XXVII. 

PAGE 

Assessment of Damages and Compensation . .404 — 439 



I. Writ of Inquiry (Assessment of Damages) 


. 404 


Introductory 




. 404 


Forms of Writ 




. 405 


Holding Courts 




. 407 


Summoning Jury . . 




. 408 


Inquiry 


. . 


. 410 


Return 


. . . • . 


. 416 


Form of Inquisition 




. 417 


Sheriff's Liability . . 


. . . . . 


. 417 


Subsequent Proceedings 


. . 


. 417 


Pees 


. . . . . . 


. 418 


II. Compensation Court 




. 418 


Introductory 




. 418 


Warrant to Summon Jury and Hold Inquiry 


. 427 


Summoning Jury . . 


. 


. 429 


Inquiry and Verdict 




. . 432 


Form of Inquisition, Verdict, 


and Judgment 


. 438 


Pees . . 




. 439 


PH. Inquiry under Lunacy Commission 


. 439 


IV. Inquiry under Commission of Sewers 


. 439 



CHAPTER XXVIII. 



Introductory 


.. 441 


Assizes 


. . 441 


Sessions 


.. 442 


Heads of tbe Under-Sheriff's Duties 


.. 442 


At Assizes 


. . 442 


At Sessions 


.. 444 


Precept and Publication of Assize 


.. 445 


Juries 


.. 447 


Qualification and Liability to Serve 


.. 447 


Exemption from Service 


.. 452 


Summoning 


.. 455 


(1) Counties 


. . 455 


(2) Cities and Boroughs, and Counties of Towns 


. . 460 


(3) City of London 


.. 460 


Forms of Summons 


. . 463 


Service of Summons 


. . 464 



M. 



XV111 



TABLE OF CONTENTS. 



Panels and Return to Precept 

Arrival of the Judge or Judges, &c. 

Opening of the Commission 

Church Services 

Attendance at Court, &c, during Assize Business 

Jurors' Fines for Non-attendance 

Making up Deficiency of Jurors 

Balloting for Juries 

Jurors' View 

Jurors' Fire and Refreshment 

Jurors' Remuneration 

Sheriff's Certificate of Jurors' Attendance . . 

Sheriff's Jury and other Assize Expenses 

Penalties on Sheriff for Neglect of Duty . . 

Sheriff's Fees 

Sheriff's Assize and Sessions Accounts 



PAGE 

467 
474 
475 
476 
477 
479 
479 
480 
482 
483 
484 
485 
486 
486 
486 
486 



CHAPTER XXIX 

Criminal Execution . 



.487—492 



CHAPTER XXX. 

Liability and Rights of Sheriff, and Remedies against 

Sheriff 493 — 504 

I. Liability of and Proceedings against Sheriff . . . . 493 

Introductory .. .. .. .. ..493 

Evidence to connect Sheriff with Under- Sheriff and Officers, 

and Evidence against and for Sheriff . . . . 498, 

Procedure . . . . . . . . .... 501 

Generally . . . . . . . . . . . . 504 

n. Rights of Sheriff . . . . . . .... 504 



CHAPTER XXXI. 

Sheriffs' Fees . , 



505—519 



CHAPTER XXXII 

Sheriffs' Accounts. . . 



520—522 



INDEX . . 



523 



( xix ) 



TABLE OF CASES CITED. 



PAGE 

Abbott, Ex parte .. ..100 

v. Richards . . . . 378 

Abrahams v. London (Mayor, Sec.) 421 

Abud v. Riches 503 

Ackland v. Paynter . . . . 82 

Ackworth v. Kempe . . . . 13 

Acton v. Woodgate . . . . 367 

Adame's Trusts, In re . . . . 278 

Adams v. Graham. . .. .. 337 

Aga Kurboolie Mahomed v. Reg. 178 
Aireton v. Davis . . . . 84 

Aitkenhead v. Blades . . 94 

Alchin v. Wells . . 495, 504, 515 

Alderson v. Davenport .. .. 14 

Aldred v. Constable . . 63, 86 

Aldridge v. Bany . . . . . . 182 

■ v. Ireland 



Alexander, Ex parte 

Allam, Ex parte, In re Munday 

Allen v . Gibbon 

v. Thompson 



500 

351 

319 

378 

.. 337 

.. 309 

379, 393 

.. 286 



Allsop v. Day 
Anderson v. Calloway 
Andrews v. Dixon. . 
Angell v. Baddeley . . 8S, 416 

Anglo-French Co-operative So- 
ciety, In re . . . . . . 182 

Anglo-Italian Bank v. Davies . . 109 
Angus v. Wootton . . . . 382 

Anon. (2 Chit. 390) .. ..120 

■ • (ID. P. C. 157) .. ..186 

(Lofft. 81) .. ..13 

(Lofft. 390) .. .. 17S 

(6 Mod. 11.5) .. .. 130 

(1 Stra. 479) .. ..190 

Antrim (Earl) v. Dobbs . . . . 2.57 

Armstrong, In re, Ex parte Boyd 281 
Armytage, In re, Ex parte Moore 265 

Arundel v. Chitty 193 

Ash v. Dawnay . . . . 70 

Ashby, In re, Ex parte Wrefoi 
Ashworth v. Outram •• .. 277 

v. Uxbridge (Earl) 64,90 

Askew v. Lewis . . . . . . 344 

Asphaltio "Wood Pavement Co., 

lure 314 

Astbury, Ex parte, Re Richards 
260, 
Atkins v. Shephard .. ..100 

Atkinson v. Jameson . . . . 189 



Attenborough 



Att.-Gen. 



PAGE 

St. Katharine's 

Dock Co 377 

■ v. Thompson . . 339 
Aldersey . . . . 148 

- v. Andrew . . ..113 

v. Birmingham Drain- 

age Board.. .. 243 

v. Dakin .. 63,181 

v. Donaldson . . . . 181 

v. Leathersellers' Co. . . 185 

v. Rickards . . . . 227 

■ v. Skinners' Co. . . 185 

v. Trueman . . . . 145 

v. Walmaley . . . . 145 

Augustien v. Challis . . . . 287 

Austin v. Amhurst . . . . 422 

Australian Investment Co., Ex 

parte, In re Queensland Mer- 
cantile Co. 317 

Avril v. Mordant 89 

Aylwin v. Evans . . . . . . 381 

Ayshford v. Murray . . . . 359 



Backhouse v. Siddle . . . . 102 

Baddeley, Ex parte . . . . 428 

Baddock v. Beauchamp . . . . 384 

Bagge v. Whitehead . . 70, 497 
Bagot V. Malone .. .. .. 517 

Bain v. Brand 268 

Baker v. Davenport . . . . 200 

Baltlwin v. London, Chatham & 

Dover Rail. Co 414 

Bale v. Hodgetta 416 

Bales v . Wingfield . . . . 84 

Balls v. Metropolitan Board of 

Works 1.17 

Balson v. Megrgat .. .. 13, 89 

Banbury r. White .. 339,344 

Bank of Hindustan, China and 

Japan, In re, Ex parte Levick.. 239 

B mi.1v r. Krook 381 

Barber, In re, Ex parte Stanford 3:J1, 

v. Mitchell . . . . 88 

Barcla\ , Ex parte , . . . . . 256 

6 2 



XX 



TABLE OF CASES CITED. 



PAGE 

Barker r. Dynes . . . . 378, 391 

v. Phipson . . . . . . 377 

v. St. Quintin .. 192, 193 

Barnard v. Berger . . .. 495,502 

v. Leigh.. 78, 85, 90, 93, 253 

Bamardo r. Ford . . . . . . 205 

Barnes v. Harding' . . . . 107 

Barr, In re, Ex parte Board of 



Trade 




367 


v. Kingsford 




336 


Barratt r. Price 




197 


Barrovr v. Bell 




357 


r Fhlrr- Srrl Sr Cn 




356 


Barsham v. Bullock 


ISO 


501 


Bartlett v. Hebbes 




182 


Barton v. Gill 




90 


Bastow, In re 




239 


Batcbelor v. Vyse 




86 


Bateman v. Famsworth . . 




379 


v. Freston 




197 


Bath v. Sutton 




339 


Bat.son r. McLean 


181 


1S2 


Batten, In re, Ex parte Milne 


368 


369 


Bauin, In re, Ex parte Cooper . . 


309 


Baynton r. Harvey 


82 


, 385 


Beale v. Overton 


376 


380 


Beales v. Tennant 




337 


Beaufort (Duke) v. Bates. . 




253 


Beavan v. Oxford (Earl) . . 




113 


Beck v. Pierce 




283 


Beckett v. Tasker . . 




281 


T^TT^T- A C3^(^f O P„ 




311 


■ t . xow ei xisseLS v^o. 

Beckford v. Wilts (Sheriff) 




200 


Beeston v. Marriott 




236 


Beetknife v. Packington . . 




411 


Belding v. Read 




317 


Bell v. Jacobs 


175 


181 


r. Hutchison 




73 


Bell Cox, Ex parte 




160 


Bellyse v. McGinn 




363 


Belmonte v. Aynard 377 


384, 


3S9 


Belshaw v. Marshall 




83 


Bennet's Case 




289 


Benson v. Frederick 




418 


Bentley, Ex parte, In re Morritt 


334 


v. Hook 




377 


Benton v. Sutton 




188 


Berry v. Adamson 




177 


Berthier, Ex parte 




84 


Berwick, Ex parte, In re Young 


322 


Bessey v. Windham 




500 


Beswick v. Thomas 




389 


Bianclii v. Otford 


329, 


331 


Birch v. Prodg-er 




193 


Bird v. Bass 




63 


v. Davey 


' 327, 


341 


v. Holt 




378 


Birmingham & Litchfield 


Rail". 




Co., In re 




236 


Bishop r. Hinxman 


376, 


394 


Bissicks v. Bath Colliery Co. 




515 


Blackwell v. England 




339 


Bladi a v. Arundale 70, 


285, 


286 


Blaiberg. Ex parte, In re Toomer 


343 


v. Beckett 




334 


v.Parke.. 


. , 


342 



PAGE 
Blake v. Izard .. .. 311,312 

v. Newborn . . . . . . 519 

Bland v. Delaus 390 

Blankenstein v. Robertson 328, 341 
Blatch v. Archer .. .. 177,500 

Blount v. Harris 342 

Boize v. Edwards . . . . . . 415 

Bolland, Ex parte, In re Roper 321, 

342 
Boothman v. Surrey (Earl) . . 188 

Borlich or Bortich v. Head, 
Wrightson & Co. . . . . 414 

Bosanquet v. Ransford . . . . 243 

Bosen, Ex parte . . . . . . 205 

Boswell v. Coaks . . . . 58 

Bourne v. Wall 332 

Bowdler v. Smith . . .. 391,392 

Bowen, In re, James v. James . . 279 

v. Bramidge . . . . 77 

Bowsher v. Wilts (Sheriff) . . 500 

Boyd v. Durand .. .. ..175 

v. Shorrock . . . . , . 250 

Boyton's Case 188 

Brackenbury v. Laurie . . . . 380 

Bradley v. Windham . . 64 

Braine v. Hunt . . . . 379, 382 

Bramidge v. Adshead . . . . 384 

Brandling v. Kent . . . . 177 

Brandon v. Brandon . . . . 434 

Bransden v. Parker . . . . 389 

Brantom v. Griffits .. 309,317 

Braunstein v. Lewis . . . . 280 

Brickell r. Hulse 501 

Bridge v. Cage .. .. .. 519 

Briggs v. Boss . . . . . . 340 

v. Pike 331 

Brighty v. Norton 347 

Brignall v. Cohen 344 

Bristol (Earl) v. Wilsmore . . 77 

Britten, Ex parte . . . . . . 185 

Brockhurst v. Railway Printing 

and Publishing Co 316 

Brodrick v. Scale . . . . . . 341 

Broughton v. Martin . . . . 193 

Brown, Ex parte, In re Hastings 359 

v. Bateman 311, 312, 319 

v. Gerard .. .. .. 12 

v. Glenn . . . . 62 

v. Jarvis . . . . . . 198 

v. Perrott .. .. ..72 

Bran v. Hutchinson . . 72 

Brunskill v. Robertson .. ..174 

Brunswick (Duke) v. Slowman . . 69 
Bryant, In re . . 49, 354, 359 

v. Ikey 388 

v. Reading 383, 395, 396 

Buckland v. Butterfield . . . . 257 



Bugbird's Case 
Bullen v. Ansley 
Bunbury z>. Matthews 
Burdett, In re, Ex parte Byrne 

■ v. Coleman 



Burdon v. Kennedy 
Buit, In re, Ex parte Board of 
Trade 



410 
515 
518 
265, 
336 
176 
78 

367 



TABLE OF CASES CITED. 



XXI 



Burroughs r. Williams 
Burslem v. Ferii . . 
Burstall v. Bryant 
Butler v. Butler . . 
Button v. O'Neill . . 
Byerley v. Prevost 
Byrne v. Hutchison 
Byron v. Dibdin . . 



PAGE 

..346 
..17.'. 
..396 
148, 27.0, 276 
..337 
..309 
.. 516 
..182 



C. &D 388, 389, 391 

Caledonian Rail. Co. v. Ogilvy . . 43-"> 
California Redwood Co. v. Walker 240 



Calvert v. Thomas . . 
Cameron v. Reynolds 
Camp v. Pole 
Campion v. Cotton 
Candy v. Maughan 
Cann, In re. . 
Carpenter v. Deen . . 
v. Pearse 



..334 

86,117 
..193 
..273 
..376 
.. 321 
319,324, 325 
.. 385 
.. 317 
321, 343 



Carr r. Allatt 

Carrard v. Meek . . 

Carter, Ex parte, In re Threapple- 

ton .. .. 321,342 

r. Hughes . . .. 112,516 

Casberd v. Att-Gen. . . . . 146 

Cassidy v. Stewart .. .. 182 

Casson v. Churchley 318, 340, 343 

Cavenagh v. Collett . . . . 200 

Cazet de la Borde v. Othon . . 131 
Central Bank v. Hawkins . . 337 

Challinor, Ex parte, In re Rogers 321 



Chalon r. Anderson 
Chambers v. Coleman 
Chapman v. Bowlby 

v. Maddison 

v. Monmouthshire Rail- 



379 
90 
66 
49 

436 



way and Canal Co. 
Charing Cross Advance and De- 
posit Bank, Ex parte, In re 

Parker 320 

Charlesworth v. Mills .. ..311 
Charlton v. Rolleston . . . . 437 

Chauvin r. Alexander .. .. ISo 

Chelsea Waterworks Co., In re . . 436 
Chesworth v. Hunt . . . . 348 

Chick v. Smith 81 

CMfferiel, In re, Chifferiel v. 
Watson. . . . . . . . 414 

Chilton v. Carrington .. ..132 

Christopherson v. Burton.. 64, 95, 370 
Chune v. Pyot (Sheriff of London) 10 
Church v. Sage . . . . . . 312 

Cider Mill Case 267 

Claridge r. Collins . . . . 376, 378 

v. South Staffordshire 

Tramway Co. .. .. .. 414 

Clarke, In re, Coombe v. Carter. . 319 
v. Chetwode . . . . 393 



Lord 
Nicholson 



379, 38.5 
. . 515 



Cleaver, In re, Ex parte Raw- 
lings .. .. 32 

v. Fisher 88 

Clement v. Mathews . . . . 318 



PAGE 

Clemson v. Townsend . . . . 329 

Clench v. Dooley .. .. .. 395 

Clerk v. Withers 119 

Cleve v. Veer . . . . . . 81 

Clifton v. Hooper . . . . . . 49 

Climie r. Wood .. .. 251,260 

Climpson v. Coles . . . . 31 ! . 

Coates v . Hawarden (Lord) . . 182 

Cobbett, Ex parte 186 

Cobham v. Dalton.. .. 181, 354 

Coburn v. Collins .. .. .. 311 

Cochrane v. Entwistle . . . . 335 

v. Moore . . . . 323 

Cocker v. Musgrove . . 286, 288 

Cohen v. Mitchell . . . . . . 353 

Coker, Ex parte, In re Blake . . 354 
Cole v. Davies . . . . 70 

Coleman v. Rawlinson . . . . 78 

Collingridge v. Paxton . . . . 72 

Collins, Ex parte, In re Lees . . 32-5 

v. Beaumont . . . . 196 

v. Rybot 413 

v. Tewens .. 175, 197, 198 

Collis v. Lewis 398 

Colls v. Coates .. ., ..515 

Colly er v. Isaacs . . . . . . 318 

Colonial Trusts Corporation, In 

re, Ex parte Bradshaw . . 242 

Colyer v. Speer . . . . 67, 286 

Commercial Bank of South Aus- 
tralia, In re . . . . . . 414 

Condy v. Blaiberg. . .. .. 61 

Connelly v. Steer . . . . . . 314 

Connor v. West .. 127,128,130 

Consolidated Credit and Mortgage 
Corporation v. Gosney.. .. 830 

Cook v. Allen . . . . 376, 380 

v. Palmer . . . . 17, 86 

Cooke v. Birt . . . . 68, 69 
Cookson v. Fryer . . . . 86 

v.Swire.. .. .. 343 

Cooper, Ex parte, In re North 

London Railway Co. . . 
v. Asprey . . : 

v. Davis 

v. Macdonald 



v. Zeffert . . 

Corbet v, Brown . . 
Corbett v. Lewin . . 

v. Rowe 

Correal or Corneal 



434 
285 
33S 
272 
342 
13 
132 
337 



London 

and Blackwall Railway Co. 128, 435 

Coton, In re, Ex parte Payne . . 329 

Cotton, Ex parte.. .. .. 261 

Coulson v. Dickson . . . . 341 

Counsell v. London and West- 
minster Loan and Discount Co. 323 
Courtoy v. Vincent . . . . 73 

Cox v. Balne 380 

v. Funn 392 

v. Hill 415 

Cox v. Leigh 288 

v. Pritchard 193 

Cramer v. Murphy . . 85 
Crawoour, In re, Ex parte Robert- 
son 311 



XX11 



TABLE OF CASES CITED. 



PAGE 

Crawford v. Satchwell . . . . 175 
Craycraf t, Ex parte, In re Brown- 
ing 360 

Credit Co. v. Pott 322 

Credits Gerundeuse v. Van Weede 377 



Crew v. Cunimings 




.. 344 


Cripps, Ross & Co. 


In re, 


Ex 


parte Ross 




.. 363 


Crook v. Morley . . 




.. 351 


Cropper v. Warner 




.. 285 


Cross v. Barnes 




.. 260 


r. Law 




.. 243 


Crossley v. Ebers . . 




.. 376 


v. Elworthy 




.. 370 


Crowder v. Long . . 


Go, 82, 


494, 501 


Crozer v. Pilling . . 


. , 


.. 192 



Cramp v. Day 380 

Cuckson v. Winter . . . . 12 

Culley v. Charman . . . . 275 

( 'ullwick r. Swindell .. .. 261 

Cumberland Union Banking Co. 
v. Maryport Hematite Iron and 

Steel Co 266 

Cunningham, In re. . 310, 312, 313 
Cuno, In re, Mansfield v. Mans- 
field 278 

Curlewis v. Pocock . . . . 383 

Curtis v. Mayne .. .. ..515 

v. Wainbrook Iron Co. . . 363 



D. 



Dabbs v. Humphries .. 390,391 
Daintrey, In re, Ex parte Holt . . 351 
Dale, In re, R. v. Penzance (Lord) 196 

v. Birch 88 

Daniels v. Gompertz . . . . 201 

Davidson v. Carlton Bank 324, 343 
Davies v. Edmonds 289, 516, 517 

■ v. Griffith 507 

■ v. Rees . . . . . . 336 

Davis, In re, Ex parte Rawlings 311 

v. Burton . . 326, 327, 329 

v. Goodman . . . . 314 

■ v. Marlborough . . . . 110 

v. Usher 322 

Dawes, Ex parte, In re Husband 364 
Dawson v. Eox .. .. .. 396 

Day v. Carr . , . . . . 379 

v. Waldock 379 

Dean v. Wlrittaker . . 73 

Dearmer, In re, James v. Dearmcr 277 
Di h oham v. Mellon . . . . 275 

Dcfirll r. White 340 

I )(■ < laillon v. L'Aigle . . . . 413 

I >(• ( Iniidnuin v. Lewis . . 68 

De la Vega v. Vianna . . . . 186 

Dilniiir i . I Vi -i mantle .. 88,501 

l)i \Iattos /•. (j. E. Steamship Co. 414 
De Mesnil v. Dakin . . . . 175 

I )c Mur;tii<l:i v. I hmkin . . . . l :; 

Dennis v. Whctham . . 93 

Denny v. Trapnell .. ..410 

Devas v. E. k W. India Dock Co. 241 



Devereux v. John . . 

■ r. Underbill 



PAGE 

376, 380 
131 



Dew v. Parsons .. .. .. 519 

Dewhirst v. Pearson .. .. 180 

D'Eyncourt v. Gregory . . . . 269 

Dickenson, In re, Ex parte Char- 

rington . . . . . . . . 358 

Digby v. Stirling (Lord) . . . . 182 

Dimson's Estate Fire Clay Co., 

In re 240 

Dixon v. Ensell 380 

Dobbin's Settlement, In re . . 344 

Doble v. Cummins . . .. .. 385 

Dod v. Saxby 288 

Dodds v. Shepherd . . . . 395 

Doe v. Trye 189 

v. Tyre . . . . 14 

Donniger v. Hinxraan . . . . 385 

Downs v. Salmon . . . . . . 338 

Dowse v. Gorton . . . . 74 

Drake v. Sykes 499 

Draycott v. Harrison . . . . 279 

Drewe v. Lainson . . . . 92 

Dreyfus v. Peruvian Guano Co. . . 414 
Drummond & Davie's Contract, 

Re 279 

Dryden v. Hope 339 

Dry Docks Corporation of London, 

In re 242 

Dubois r. Wyse .. .. .. 185 

Duck v. Braddyll 289 

Duddin r. Long 380 

Dudley (Lord) v. Warde (Lord). . 268 
Dutril v. Spottiswoode . . 73 

Duke's Case 213 

Dumergue v. Rumsey . . . . 253 

Duncan v. Cashin . . . . 75, 377 

v. Garratt 87 

Dunsford v. Gouldsmith . . . . 193 

Dutton v. Fm-niss . . .. .. 376 

Dyer v. Disney . . . . . . 182 

Dyke v. Blakston 410 

v. Duke 174 



E. 



Eagleton v. Gutteridge . . 69 

Ecclesiastical Commissioners for 

England v. L. & S. W. Rail. 

Co 422 

Edey, Ex parte, In re Cuthbertson 358 
Edge v. Kavanagh . . 84 

Edmonds v. Blaina Furnaces Co. . . 314, 

315 
Edmunds v. Watson . . . . 88 

Edwards, In re, Brooks v. Edwards 1 96 

v. Edwards 313, 314, 347 

v. Marston 

v. Matthews 



Elliott v. Bishop . . 

v. Nicklin . . 

Ellis v. Griffith . . 
Elwes v. Maw 
Emanuel v. Bridger 



328 

. . 387, 394 

.. 251, 254 

.. 411 

..193 

251, 254, 259 

..345 



TABLE OF CASES CITED. 



XX111 



Emmerson, Ex parte, In re Haw- 
kins 311 

Emperor Life Assurance Society, 
In re 212 

Engleback v. Nixon . . 75, 377 

English Bank of the River 1 

In re, Ex parte Bank of Brazil 414 

Enraght, In re, R. v. Penzance 
(Lord) 196 

Eslick, In re, Ex parte Alexander 264 

Essex (Sheriff), In re, Ex parte 

Levy 360 

v. Acton Local Board . . 435 

Evans, In re . . . . ..71 

, Ex parte, In re "Watkins.. 100 

v. Collins . . 

v. Da vies . . 

v. Roberts . . 

v. Thomas . . 

Doe d., v. Owen 
xh. v. Salisbury 



Eveleic 

Eyles v. Faikney 



174 
91, 495 
.. 247 
.. 396 
.. 107 
385, 390 
.. 189 



Farebrothcr v. Ansley 

v. "Worsley 

Farr v. Newman . . 
Farrant v. Thompson 
Fells v . Read 
Fenny v. Durrant . . 
Fenton, In re. Ex parte Lythgow 
v. Blythe 



74, 



Essex 
87, 



Fenwick v. Laycock 
Fermor v. Phillips. . 
Field v. Cope 

v. Revinprton. . 

Filewood v. Clement 
Finch, In re, Ex part 
(Sheriff) .. 

v. Cocken . . 

Firbank'sExecutors v. Humphreys 
Firth, Ex parte, In re Cowburn. . 
Fisher v. Begrez . . 

v. Dixon . . 251, 262, 

v. Magnay 

Fletcher, Ex parte, In re Henley 
Fl> t rher v. Manning 

Fliarht v. Cook 

Floyd v. Bethill 

Ford, Ex parte 

v. Baynton 

v. Dillon .. .. 391, 

■ v. Kettle 

v. Lechc 

Forster v. Cookson 

Ex parte, In re Baldwin . . 
Foster v. Blakelock 
Foulger v. Taylor 
Fourdrinier, Ex parte, In re Artis- 
tic Colour Printing Co. 
Fowlds v. Mackintosh 
Few Lex . Forster 
France v. Campbell 

r. Clarkson . . 88, 



5/ 
IS 
74 
253 
131 
107 
362 
344 
378 
500 
392 
396 
189 

363 
175 
414 
321 
183 
266 
175 
347 
357 
193 
129 

66 
378 
393 
342 

14 
289 
357 
518 
337 

239 
504 
312 
72 
416 



Francis v. Neave . . 
Freeman v. Pope . . 
French r. Bombernard 
i'li -ton, In re 
Frith v. Simpson . . 
Frost's ( 
Furber v. Abrey . . 

v. Cobb . . 

v. Finlayson 

Furnivall v. Hudson 
Futcher v. Hinder 



PAGE 

. 500 
. 369 
. 309 
. 185 
. 378 
. 197 
. 332 

331, 333 
.. 347 

329, 340 
49, 193 



G. 

Gardner v. Smart . . . . . . 341 

Gaskell v. Marshall . . . . 74 

v. Sefton 393 

Gawler v. Chaplin. . .. 66,86 

General Horticultural Co., Ltd., 

Whitehouse's Claim (No. 2) .. 237 
Genner v. Sparks . . . . ..177 

Gent, In re, Gent-Davis v. Harris 183 
George v. Milbanke .. .. 370 

v. Perring . . . . . . 501 

Gerhard v. Montague .. .. 383 

Gethin < . Wilks 379 

Gibbins v. Phillips . . . . 499 

Gibbons v. Hickson .. ..347 

Giles v. Grover ..113, 146, 148, 152 
Gilpin v. Benjamin & Cohen 184, 185 

.. 335 

.. 77 

385, 388 

.. 185 

.. 200 

.. 186 

.. 77 

328, 331 

.. 515 

.. 389 

.. 186 

.. 2-53 

.. 180 

.. 109 

.. 289 

.. 193 

494 

182 

347 

240 



Gilroy r. Bowey 
Gladstone v. Padwick 
Glazier v. Cooke . . 
Glendenning v. Browne 
Gobbey v. Dewes . . 
Goddard v. Hams . . 
Godson v. Sanctuary 
Goldstrom v. Tallerman 
Goode v. Langley . . 
Goodman v. Blake. . 
Goodwin v. Lordon 
Gordon v. Harper . . 

v. Laurie . . 

Gore v. Bowsi-r 

!•. Grofton 

v. "Wright 



92, 200. 



Goubot v. De Crouy 
Goudy v. Duncombe 
Gough v. Everard. . 
Graham v. Edge . . 

v. Wilcockson & Muns- 

low 
Grainger v. Hill 
Grand Trunk Rail. Co. of Canada 

V. Jennings 
I l-rater v. < kulard . . 
( Sraves v. Weld 
Gray v. Jones 
Great Noi^thern Railway Co 

Tahourdin 
GreaTea v. Keen . . 
v. Wilson 



309 

177 



Grebert Borgnis v. Nugent 
Green v. Attenborough . . 
V. Austin 



414 

418 

247 

337, 338 

236 
196 
112 
414 
343 
290 



XXIV 



TABLE OF CASES CITED. 



PAGE 

Green v. Brown . . . . 377, 381 

■ v. Elgie 66 

v. Marsh .. .. .. 313 

Greenham v. Child . . . . 339 

Gregory v. Cotterell . . . . 13 

Griff en v. Caddell 78 

Gri«-«: v. National Guardian As- 

310 

90 

257 

113 



surance Co. 
Grove v. Aldridge 
Giymes v. Boweron 
Guest v . Cowbridge Bail. Co. 



H. 



Hadden, Best & Co. v. Oppenheim 335 
Hale v. Saloon Omnibus Co. 64, 309 
Hall, Ex parte 

, In re, Ex parte Close 

v. Badden 

v. Comfort 

■ v. Crawley 

r. Jones 

v. Ley 

v. Koche 

Hallas v. Robinson 
Hallen v. Bunder 
Hamilton v. Chaine 
Hamlyn v. Betteley 
Hammond v. Bussey 

v. Hocking 

Hansen v. Maddox 
Harding' v. Holder 



84 
.. 310 
.. 90 
.. 313 
.. 90 
.. 494 
.. 502 
.. 175 
.. 318 

249, 254 
.. 321 

319, 387 
.. 413 
.. 332 
.. 388 
.. 13 



Hardwick, In re, Ex parte Hub- 
bard 310 

Hare v. Hyde . . . . . . 186 

Harley v. Harley . . . . 75 

Harmer v. Tilt 502 

Harper, Ex parte, In re Bremner 364 



Harris v. 



Jewell 
Bu-h 



53 
109 

278 



PAGE 

516 

218 
379 
427 
362 
201 
89 



Harris' Settled Estates, In re 
Harrison, In re, Ex parte Essex 

(Sheriff) .. ..360 

■ v. Barry . . . . . . 288 

■ v. Forster . . 85 

■ v. McSheean .. .. 415 

. v. Paynter . . 64, 72, 93 

j,. Wright . . . . 383 

Hartmont v. Foster . . . . 397 

Harvey v. Dakins . . . . . . 182 

v. Harvey . . . . . . 177 

Haslewood v. Consolidated Credit 

Co 327, 328 

Hatton v. English . . . . 343 

v. Haywood 100, 102, 109, 

110, 114 

v. Hopkins . . . . 182 

1 1: it wood v. Law .. .. .. 243 

Hauxwell, Ex parte, InroHeming- 

way 310,343 

Hawes v. S. E. Rail. Co. . . 414 

Hawkins, In re . . . . . . 355 

Hawtry v. Butlin . . . . 262, 264 

Haydon v. Brown , . . . . . 309 



Hayley v. Racket 
Haynes v. Hay ton 
Hay thorn v. Bush. . 
Hayward v. Met. Rail. Co. 
Heathcote v. Livlesey 
Hedges v. Jordan 
Heenan v. Evans 
•Heiron's Estate, In re, Hall v. 

Ley 91, 495 

Hellawell v. Eastwood 249, 251, 255 
Hellyer, Doe d., v. King. . . . 129 

Hemingway v. Braithwaite . . 281 
. 192, 194 
.. 49 



351 
414 
504 

200 
519 



Hemming v. Hale. , 

v. Tremera 

Henderson, Ex parte 

v. Thorn 

Heppel v. King 

Hereford (Dean, &c.) v. Macna- 
mara 

Hescott's Case 

Heseltine, In re, Woodward v. 

Heseltine 328, 329, 341 

*— v. Simmons 323, 325, 335 

Hetherington v. Groome 328, 331, 397 

Hewer, In re, Ex parte Kahen 337, 

344 

v. Cox . . . . . . 337 

.. Ill 

.. 187 

.. 324 

.. 397 

.. 114 

.. 325 

.. 271 

89, 500 

.. 381 

.. 239 

.. 310 

.. 289 



Hey don's Case 
Heywood v. Collinge 
Hickley v. Greenwood 
Highton v. Treherne 
Hildyard r. Baker. . 
Hill, Ex parte, In re Lane 

v. Cooper 

r. Middlesex (Sheriff) 

Hilliard v. Hanson 

Hill Bottery Co., In re . . 

Hilton v. Tucker 

Hinchett v. Kimpson 

Hinks, In re, Ex parte Berthier. . 363 

Hiscocks v. Jones . . . . . . 188 

Hobern v. Fowler, Ex parte Ho- 
bern . . . . . . . . 185 

Hobson, In re .. 110, 114, 359 

v. Thelluson . . 69, 77 

Hochaday, In re, Ex parte Nelson 322 



Hockey v. Evans . . 
Hodges v. Patterson 
Hodgkinson v. Kelly 
Hodgson v. Gascoigne 

v. Lynch 

Holland v. Hodgson . . 

Holliday v. Lawes 



381 
..192 
..242 
..288 
. . 49 
250, 251, 260, 
262, 263 
..196 



and Wakefield (Mayor) 

In re an Arbitration between . . 

Hollier v. Laurie 

Holmes v. Clifton 

— r. Mentze 

Penney 



Holroyd v. Marshall 
Holt, In re . . 

■ v. Frost 

Holton v. Guntrip . . 

Homan, Ex parte, In re Broadbent 309 

Home v. Hughes . . . . . . 343 



437 
378 
91 
381 
369 
317 
503 
380 
379 



TABLE OF CASES CITED. 



XXV 



Hood, Be, Ex parte Trustee r 
Burgess . . 

v. Bradbury 

Hooman, Ex parte, In reVining 



309 

388 

338, 

345 

.. 197 

.. 185 

.. 3lf 

272, 283 

.. 178 



Hooper v. Lane 
Hope, In re . . 

v. Hayley .. 

v. Hope 

Hopkins v. Nightingale 
Horrocks v. Met. Bail. Co. . .427, 434, 

437 
Hoskins v. Knight . . . . 288 

Hough v. Windus 100 

Howard v. Canty . . . . . . 198 

Howden v. Standish 179, 189, 200 

Howell v. Dawson . . . . 384 

Howes v. Stone . . . . . . 362 

v. Young 362 

Howitt v. Eickaby .. 91,495 

Hughes, In re, Ex parte Hughes 349 
Little .. .. 319, 329 



v. Bees 
Doe d., 



v. Jones 
Greenhill 



.4!', If7, 119 



69, 



Hill, Doe d 
Hume r. Druyff . . 
Humphreys v. Pratt 
Hunt v. Clifford 

r. Fenshani 

v. Hooper 

v. Passmore 

Hurst !'. Sheldon 
Hutchinson v. Birch 

■ v. Humbert 

v. Johnston 

Hyland v. Lennox 



I. 



Ibbotson v. Chandler 

Ide, Ex parte 

Ilfracombe Bail. Co. v. Pollimore 

(Lord) 

Imlay v. EllefFsen 
Imperial Land Co. of Marseilles, 
In re, Ex parte Col- 
borne & Straw bridge. . 

Steam & Household 

Coal Co., In re 

65, 93, 



109 

194 

61 

84 

364 

65 

66 

377 

178 

54 

64 

389 



Imray v. Magnay . 
Inland v. Busbell , 
Isaac v. Spilsbury 
Ives v. Lucas 



50 



386 
350 



243 
186 



242 

240 
370 
379 
377 
67 



Izard, Ex parte, In re Chappie .. 301 



Jackson, Ex parte. . 
- >■. I lill 

v. Mawby 



12, 



Jacobs r. Humphrey 

v. L. B. & S. C 

James P. Whit bread 

Jamieson, In re, Ex parte Pannell 273 



. 185 
13, 14 

..196 
84, 120, 500 
Bail. Co. 415 
..394 



PAGE 

Jarmain r. Hooper . . 59, 61 

Jay, Ex parte, In re Blenkhorn . . 346 
Jem ries v. Sheppard .. .. 88 

Jeffresorj v. Morton .. .. 110 

Jenkins, Ex parte . . .. .. 195 

Jenkinson v. Brandley Mining 

Co. .. 75, 315, 316 

v. Bullock .. ..275 

Jenkyn r. Vaughan . . . . 369 

Jersey (Earl) v. Uxbridge Rural 

Sanitary Authority .. 80,111 
Jervoise v. Jervoise . . . . 273 

Johnson, Ex parte, In re Chapman 319 



v. Johnson. 
>. Leisrh 



Jolly r. Rees 
Jones v. Atherton . . 

r. Chune 

v. Clayton 

v. Harris 

v. Lewis 

v. Marshall . . 

v. Parcell or Parsell 

V. Perchard . . 

■ v. Robinson . . 

v. Shepherd . , 

r. Tower Furnishin 

v. Wilhams . . 

v. Wood 

Jordan v. Binckes . . 
Joseph v. Lyons . . 

v. Webb . . 

Joyner v. Weekes . . 
Jupp v. Cooper 

K. 



*> ' 



84 



200 



Co. 



289 
178 
275 

63 
405 

93 
342 
391 
185 
363 
519 
517 
382 
309 

91 
499 

87 
318 
319 
414 

49 



sociation . . 




344 


Keene v. Dilke 




83 


Kehrl v. Parker 




415 


Keightley v. Birch 
Kelly v. Browne . . 




117 
93 


v. Lawrence 


( n 


175 


Kempland v. Macauley 

Kent v. Freehold Land and Brick- 


65 


making Co. 




241 


Kerbey v. Denby 
Kernot v. Norman 




177 
186 


Keynsham Co., Re. 
King v. Ballett 




211 
110 


v. Forster 




182 


Kingsbury v. Collins 
Kingsdale v. Mann 




24 7 
130 


Kingston r. Haychurch . . 
Kipling v. Allan . . 
v. Todd 


■22 i 


418 

■2i:] 
243 


Kirk c. Clarke 




386 


Kirkpatriek v. Kelly 
Knitrht v. Clarke 




181 

127 


Knock v. Met. Bail. Co. . . 




424 


L. 






Ladbrooke v. < Irickett 




75 


Laing v. ^\"alkt.r . . 




273 



XXVI 



TABLE OF CASES CITED. 



PAGE 

Lake v. Turner . . . . . . 508 

Lancashire Waggon Co. v. Fitz- 

hugh 73 

Lane v. Mullins 413 

v. Sewell 517 

v. Sterne . . . . . . 60 

Langley, Ex parte, In re Bishop . . 49, 

SO, 359 
Laporte v. Costick . . . . 277 

Larchin r. N. W. Deposit Bank. . 337 
Lathbury v. Brown .. .. 418 

Launock v. Brown . . 68 

Lavies, In re, Ex parte Stephens 252 
Lawton v. Lawton . . . . 268 

Laycock's Case . . . . . . 494 

Lazarus v. Andrade . . . . 313 

Lea v. Rossi . . . . . . 379 

Leader v. Danvers .. 119, 120 

Leak v. Driffield 280 

Leatham v. Amor.. .. .. 318 

Lee v. Barnes . . . . . . 333 

v. Bude and Torrington 

Junction Bail. Co. . . 243 

v. Dangar . . . . 52, 66, 496 

v. Gansell . . . . 69, 178 

v. Lopes 289 

• v. Rumilly . . . . 59, 60 

v. Turner . . . . . . 338 

Legg v. Evans . . . . . . 75 

v. Mathieson. . .. ..113 

Lepla v. Rogers ... . : .. 414 

Lessee of Linehan v. Anthony . . 131 

Massey v. Ejector . . 131 

Levy v. Abbott 90 

v. Abercorrris Slate and Slab 

Co... .. .. 315, 316 

v. Champneys . . . . 376 

■ v.Hale .. .. 93, 119 

Lewes (Earl) v. Barnett . . . . 184 

Lewis, Ex parte, In re Henderson 345 

v. Alcock . . . . 92 

v. Eicke 390 

v. Jones . . . . . . 380 

v. Morland 190 

Life Association of England, Re 241 
Lindsay, Ex parte, In re Arm- 
strong . . . . . . . . 183 

Little, In re 271 

Liverpool Loan Co., Ex parte, In 

re Bullen.. _ 362 

Lloyd v. Harrison. . .. ..185 

v. Pughe 273 

v. Sandilands .. ..178 

, Doe d., v. Roe .. ..130 

Lockley v. Pyo . . . . . . 77 

Lombard v. Kennedy . . . . 414 

London and Devon Biscuit Co., 

In re 239 

Cotton Co 239 

Financial Association v. 

Stevens .. .. .. 241 

Longbottom v. Berry . . 251, 260, 



26 



Lott v. Melville 
I ioveitt v. Hill 
Lovell v. Newton 



263 
390 
181 

277 



PAGE 
177 

65 

76 

422 

359 

386 



Loveridge v. Plastow . . 

Lovick v. Crowder 

Lowthal v. Tonkins 

Lowther v. Caledonian Rail. Co. 

Lucas v. Dicker 

Luckin v. Simpson 

Ludford, In re, Official Receiver 

v. Warwickshire (Sheriff) . . 360 

Lumley v. Simmons . . 324, 327 
Lusty, In re, Ex parte Lusty . . 266 

Luton v. Sanoner . . . . . . 339 

Lyford v. Tyrrel .. .. ..176 

Lyon v. Morris . . . . 331, 396 

Lyons v. Tucker . . . . . . 314 

Lyster v. Bromley. . . . . . 516 

v. Dolland . . . . 78, 109 



M. 

Mc Arthur v. Cornwall .. ..414 

Macdonald v. Mortlock . . . . 193 

Macdonnel v. Marston .. ..413 

Macey v. Gilbert 331 

McGowan, In re, Ex parte Ash- 
ton 359 

McHenry, In re, Ex parte Mc- 
Dermott . . . . . . . . 356 

Mackay, Ex parte, In re Jeavons 309 

v. Douglas . . . . 370 

v. Merritt . . 329, 358 

Mackenzie, Ex parte, In re Bent 341 
McLeod v. Drummond . . . . 74 

MoNair v. Audenshaw Paint Co. . 398 

Madell v. Thomas 311 

Magnay v. Burt . . . . 193, 494 

v. Monger .. ..181 

Maile v. Mann 518 

Malins v. Dunraven . . . . 482 

Mammatt v. Brett 213 

Manchester and Milford Rail. Co., 

lure 236 

, Sheffield, and Lin- 
colnshire Rail. Co. v. N. Central 
Waggon Co. 
Manders v. Williams 
Manning, In re 

Mansell v. British Linen Co. Bank 
Marine Mansions Co., In re 
Marples v. Hartley 
Marsden v. Meadows 
Marshall v. Hicks 
Martin v. Francis . . 192, 193, 
c. Wenman 



Mason v. Cutterson 

v. Paynter 

Mather v. Fraser 251, 252, 256, 

262, 263, 
Maiid v. Barnard . . 62,176, 

Maxim-Nordcnfeldtfl.Nordenfeldt 
Maybury v. Mansfield 
Mayer and Fulda v. Mindlewick 
Mayhew v. Parker 

Meek v. Wendt 

Melville v. Stringer 

Mercer, Ex parte, In re Wise 



309 
73 
184 
413 
314 
313 
309 
517 
494 
18 
519 
129 
260, 
268 
410 
412 
517 
322 
181 
413 
329 
369 



TABLE OF CASES CITED. 



XXV11 



PAGE 

Mcrrett, Ex parte . . . . . . 423 

Metcalf v. Scholey . . . . 78 

Metropolitan Comities Society v. 

Brown 262 

Meux v. Jacob . . . . . . 260 

Michael, Ex parte 307 

Micklethwaite v. Fletcher .. 196 

Middlesex (Sheriff), Ex parte . . 199 
Midland Waggon Co. v . Potteries, 

Shrewsbury and N. Wales Bail. 

Co 236 

Miles v. Harris .. .. ..515 

Miller v. Parnell . . . . 70, 78 

Millwood Colliery Co., Ex parte 239 

Milne, Ex parte 368 

Milner's Settlement, In re . . 271 

Minshall v. Lloyd . . . . 253, 499 

Mitchell v. Simpson . . 180, 354 

Molineux v. Fulgan .. ..131 

Monetary Advance Co. v. Cater.. 336 
Money r. Leach . . . . . . 175 

Montagu v. Harrison . . . . 186 

Moon v. Raphael . . . . . . 499 

Moore, Ex parte, In re Dickenson 35S 
, , In re Faithful 351 



v. Magan 
v. Morris 



Morewood v. S. Yorkshire Rail. Co 
Morgan, In re 

v. Hardy 

Morgans v. Bridges 
Morland v. Chitty. . 
Morris v. Delobbel-Flipo . 

v. Jones 

■ v. Salberg . . 

Morrish v. Murray 

Mortimore v. Cragg 

Moatyn v. Stock 

Moulson, In re, Ex parte Knightley 

338, 342 
Mumford r. Collier .. 290,313 

Munk r. Cass 89 

Murietta v. S. American, &c, Co. 380, 

382 
Mutton, Ex parte, In re Cole . . 346 

V. Young . . 376, 380 

Myers v. Elliot 327 



193 

270 

337 

.. 74 

.. 414 

175, 500 

.. 394 

.. 311 

.. 107 

60, 61 

68, 179 

. . 515 

.. 84 



N. 

Nash r. Allen 

r. Dickinson . . 

V. Lucas 

v. Wooderson 

National Assurance Co. v 



Best. 



Mercantile Bank, Ex 



509 
'> 1 ") 
68 
414 
193, 
191 



parte, InreHaynes 320,321, 338,340 

Netley v. Buck 364 

Newcastle (Duke), In re, Ex parte 
Padwick . . . . . . 78 

Newitt, Ex parte, In re Garrud 309, 

311 
New Land Development Associa- 
tion and Gray, In re . . . . 353 



PAGE 

309 
185 

184 
339 
500 
210 



Newlovc v. Shrewsbury . . 

Newton v. Constable 

v. Harland 

Nicholson v. Cooper 

North v. Middlesex (Sheriff) 

Carolina Estates Co., In re 

Central "Waggon Co. v. 

Manchester, Sheffield and 
Lincolnshire Rail. Co. . . 309 

Northcote v. Beauchamp . . .. 378 

Northern Investment and Dis- 
count Co., Ex parte, In re 
Carlisle 344 

Nutt v. Verney 186 



O. 



Oddy v. Haliet 414 

Official Receiver, Ex parte, In re 

Morritt 334 

O'Neill v. Cunningham . . . . 72 

Opera, In re The .. .. 239,317 

Oram v. Sheldon 391 

Ord, Ex parte, In re Fothergill. . 319 
Oriental Bank Corporation, In re, 

Ex parte The Crown . . . . 149 

Ormerod v. Foskett . . . . 518 

Osborne v. Tennant . . . . SO 

O' Shea v. O' Shea 205 

Ostler v. Bower 380 

Oxfordshire (Sheriff), In re 381, 393 



-, The Case of the 185 



Pain v. Middlesex (Sheriff) 

Palgrave v. Windham 

Palliser v. Gurney 

Pallister v. Pallister 

Panmure, Ex parte, In re National 

Coffee Palace Co. 
Panton v. Robart 
Parker v. Booth 

v. Moore 

Parkins v. Wollaston 
Parkinson v. Horlock 
Parry, Ex parte, In re Great Ship 

Co 

Parsons, In re, Ex parte Furber . . 
-, Stockley v. Parsons 
». Brand, Coulson v. Dick- 
son 
>. 1 [arerreaves 



Pascoe v. Vyvian 
Pasmore v. Wilkinson 
Pate, Doe d. , v. Roe 
Paxton, In re, Ex parte Pope 
Payne v. Drewe 

v. Mortimer 

Peacock v. Purvis 

Pearce, In re, Ex parte Cross- 

thwaite . . 63, 89, 

, Ex part.-, In re Williams 

c. Watkius 



73 

2S9 

280 

13 

413 
73 

378 

176 
62 

193 

239 
344 
278 

341 
334 
189 
201 
131 
331 
76 
370 
285 

362 
335 

3S4 



XXY111 



TABLE OF CASES CITED. 



PAGE 

Pearson r. Yewens. . .. .. 198 

Peek v. Deny . . . . . . 414 

Pellow, Ex parte 218 

Pelton Bros. v. Harrison 271, 280, 281 
Pennington, In re, Ex parte 
Cooper . . . . . . . . 371 

Penny v. S. E. Rail. Co 436 

Penton v. Browne . . . . 69 
Penwarden v. Roberts . . . . 340 
Percival v. Stamp . . . 62, 501 
Perkins V. Burton . . . . 391, 392 
v. Meacher 200 



Perkins' Beach Lead Co., In re. . 

Perrin v. Davenport 

1 '< rsse v. Persse 

Philby v. Ikey 

Philips, In re, Ex parte National 

Mercantile Bank 
Phillips v. General Omnibus Co. . . 

v. Pound . . 

V. Price 

, Doe d., v. Evans. . 

Fickard. v. Bretz 

■ r. Marriage . . 342, 

Pilkinw-ton v. Cooke 



239 

14 

185 

390 

317 
82 
185 
196 
110 
337 
346 
507 
353 
416 
189 
66 
130 
196 
ISO 



Pinfold, Ex parte 
Pippett v. Hearn 
Pitcher v. Bailey . . 

v. King 

, Doe d., v. Roe . . 

Pitt v. Coombs 

v. Middlesex (Sheriff) 

Place v. Fagg . . 251, 253, 268 

Plas-yn-Mhowys Coal Co., In re . 239 
Playfair v. Musgrove . . 70, 78, 87 
Plornerf. Bull .. .. 176, 196 

Plues v. Capel 382 

Poland, In re .. .. ..185 

Pollen, Ex parte, Re Davis 87, 285 
Pontypridd and Rhonda Valley 

Tramway Co., In re . . . . 240 

Poole (Mayor, &c.) v. WMtt 110, 114 

Poole's Case 253 

Pope, In re .. .. 101,102 

Popplewell, Ex parte, In re 

Storey 
Portal v. Emmens . . 
Porter v. Viner 
Pott v. Todhunter 
Potter v. Simpson . . 
Powell v. Jewsbury 
v. Lock 



322, 325 

224, 243 

.. 13 

.. 370 

.. 200 

.. 80 

.. 382 

.. 418 

.. 309 

.. 279 

279 

361 

92 



Power v. Horton 
Preece v. Gilling 
Price, In bonis 

, In re, Stafford v. Stafford. 

Priestley, In re 
Pringle v. [saac 
Printing and Numerical Register- 
ing Co., In re 241 

Proctor v. Lainson .. .. 500 

Prosser v. Mallinson . . . . 388 

Pugh v. Arton 252 

V.Griffiths 68 

Pul brook v. Ashby 310, 311, 313 
Pullen v. Purbeck 107 



Punnett, Ex parte, In re Kitchin. 263 
Purcell, In re .. .. 85, 516 

Pusey v . Pusey . . . . . . 131 

Pyman r. Burt . . . . 58 



Quick v. Staines 



R. 



Q. 



R. 



74 



. Adams and Warren 


, § 


145 


Adderley 






88 


Austin 






151 


Backhouse 


. . 




178 


Baines 




, , 


195 


Barber 






516 


Barnardo, Re Tye 


(No 


1)'.'. 


205 


Berks (Sheriff) 






119 


Bickley 






140 


Bird .. 


. , 


69 


, 228 


Bowles 






516 


Burgess 




193 


, 196 


Caldwell 


, , 




516 


Calvert 


, , 




193 


Collingridge . . 




, , 


140 


Cornwall (Sheriff) 


. . 


49, 91 


Cotton 


, . 


146 


148 


Crackenthorp 






516 


Dale .. 






145 


Delamotte 






144 


Devon (Sheriff) 


194 


503 


517 


Devon (Sheriff), Nathan v. 




Elworthy . . 






91 


Devon (late Sheriff) 




504 


Dugger 






195 


East London Rail. 


Co. 




423 


Ellis .. 






146 


Ely (Justices) 






219 


Essex 






414 


Essex (Sheriff) 




91 


503 


Farrant 


. . 




411 


Fereday 






517 


Ferrand. 






411 


Franklin 






141 


Freme 


. , 




516 


Fry .. 


, . 




516 


G. N. Rail. Co. 




423, 


434 


Halifax Board of Health . . 


436 


Hankins 






218 


Hertfordshire (Sheriff) 


88, 


120 


Hewitt 






161 


Hopper 






152 


Humphrey . . 






146 


Jenkins 






195 


Jones .. 88, 119, 


120, 


195, 


515 


Kent (Sheriff) 


200, 


494, 


503 


Kinnear 


, , 


139, 


142 


Lambton 




146, 


150 


I. ancaster and Preston Junc- 




tion Rail Co. 






434 


Larking 






143 


Lee 


t , 




146 


London (Sheriff) 


.. 


.. 


504 



TABLE OF CASES CITED. 



XXIX 



R. v. London (Sheriffs), Hollier v 

Clark 

— v. London & N. W. Rail Co. . 



PAGE 

504 
428, 
434 
145 
195 



— v . Lushington . . 

— v. Maby . . 

— v. Manchester, Sheffield & Lin- 

colnshire Rail. Co. . . 427 

— v. Manley-Smith . . . . 427 

— v. Mares. . . . . . . . 153 

— v. Middlesex (Sheriff).. 49, 175, 200, 

429, 434, 5()1 

— v . Middlesex (late Sheriff) . . 504 

— v. Monmouth (Sheriff) . . 119, 503 

— v. Myers 176 

— v. Noonan . . . . 82 

— v. Norwich and Watton Trus- 

tees 436 

— v. Osbourne . . . . 148, 246 

— v. Oxfordshire (Sheriff) . . 376 

— v. Palmer .. .. 194, 517 

— v. Plaw . . . . . . . . 139 

— v. Rawlings, Ex parte "Wilkin- 

son 140, 150 

— v. Renton .. 139,152,193 

— v. Ricketts 161 

— v. Robinson .. .. ..516 

— V. Ryle 140 

— v. St. Asaph (Bishop) . . . . 182 

— v. Sheward 436 

— v. Sherwood .. .. 140,141 

— v. Sloper . . . . . . 148 

— v. Smithies . . . . . . 495 

— v. Soulby 141 

— v. S. "Wales Rail. Co 434 

— v. Stobbs 181 

— v. Stone . . . . . . . . 423 

— v. Templan .. .. .. 213 

— v. Tidmarsh .. .. ..516 

— v. Topping . . . . 148, 253 

— v. Vaughan and Met. District 

Rail. Co 423 

— v. Villers 516 

— v. Ward 145 

— v . Warwickshire (Sheriff) . . 428 

— v. Watson . . . . . . 146 

— v. Wells and Allnutt .. ..148 

— v. "West Riding (Justices), In 

re Thornton . . ..218 

— v . W T ilkes 226 

— v. "Wilkins . . . . . . 502 

— v. Winton . . . . ., 201 

— v. Woolf 213 

Rodman's Microbe Killer Co. v. 

Leather 418 

Railstone v. York, Newcastle & 

Berwick Rail. Co 427 

Ramsay v. Eaton . . . . . . 14 

Ramsbottom v. Rex . . . . 150 

Ramsden, In re . . . . . . 176 

Ranken v. Ilarwood . . . . 81 

Ransford v. Bosanquet . . . . 243 

Raphael v. Goodman 17, 494, 501 

Rateliffe r. Burton .. ..178 

r. Evans.. .. ..413 

Ray v. Ray 74 



PAGE 

Read v. Joannon . . . , . . 315 

v. Victoria and Pimlico Rail. 

Co. 436 

v. Wotton . . . . . , 415 

Real and Personal Advance Co. >:. 

Clears 322, 331 

Redhead v. Westwood .. ..311 

Reed v. Thoyts 

Reeve v. "Whitmore . . ..317 

Reeves v. Barlow . . 311, 312, 319 

v. Penrose . . . . , . 414 

v. Slater .. .. ..175 

Reid v. Poyntz . . . . , . 499 

v. Reid . . . . , . 278 

Remmett v. Lawrence . . . . 92 

Rennie r. Bruce . . . . . . 193 

Rew v. Payne, Douthwaite & Co. 414 
Reya, Ex parte, In re Salinger . . 362 
Reynolds v. Barford . . . . 89 

v. Pocock .. ..182 

, Barrock or Williams r. 

Newton . . . , , , ..196 

Rhodes v. Dawson . . . . 389 

— v.Hull .. .. 175,193 

Richards, In re .. .. ..241 

v. Johnston . . . . 83 

Richardson v. Ardley . . . . 253 

r. Harris .. . . :J21 

v. Small wood 369,370 

r . s. E. Rail. Co. . . 427 

V. Trundle . . . . 88 

v.Webb .. .. 110 

Rigby v. Dublin Trunk Rail. Co. 243 
Riley, In re, Ex parte Official 
Receiver . . . . . . , , 354 

Rimmer v. Green . . . . . . 185 

■ v. Turner .. ., 192 

Riseley v. Ryle . .286, 288, 289, 290 
Rishton v. Nisbett . . . . 184 

Roach v. Wright. . .. .. 377 

Roberts, Ex parte, In re Gillespie 414 

, In re, Evans v. Roberts 309 

v. Roberts 318, 323, 324, 327 

•, Doe d., v. Parry .. 114 

Robertson, In re, Ex parte Lewin 309 
Robins v. Hender . . . . . . 177 

Robinson v. Briggs . . . . 345 

v. Collingwood . . 86, 325 

■ r. Tongue . . ..Ill 

• v. Tucker 347, 387, 394, 396 

v. Ye wens . . . . 198 

Rodocanachi v. Milburn . . 333, 414 
Roe r. Bradshaw . . . . . . 342 

v. Mutual Loan Fund . . 327 

Rogers v. Kennay. . .. .. 73 

Roflason, In re, Rollason v. Rolla- 
son, Halse's Claim . . . . 74 

Ross v. Army and Navy Hotel Co. 316 
Ivmth v. Roublott.. .. .. 341 

Rowe v. Tapp 119 

Rowles v. Senior . . . . . . 61 

Royal v. Busby .. .. 517,518 

Endow p. Great Britain Mutual 

Life Assurance Society . . 240 

Rutnball v. Murray . . 70, 78 

Rusden v. Pope .. .. .. 377 



XXX 



TABLE OF CASES CITED. 



PAGE 

Rush, In re 102 

Russell, Ex parte, In re Butter- 
worth 370 

Russen v. Lucas . . . . . . 177 

Ryall v. Rolle 253 

Ryley, In re, Ex parte Official 

Receiver . . .. . . . . 18-1 



B. 



Saffery, Ex parte, In re Bremner 346 
St. John's College v. Murcott . . 286 
Salaman v. Warner .. ..351 

Salmon v. James . , . . . . 379 

Salt v. Cooper 109 

Samuel v. Buller .. .. 176,192 



v. Duke 



76 
263 
177 
182 
319 



Sanders v. Davis . . 

Sandown v. Jarvis 

Sard v. Forrest 

Sari, In re, Ex parte "Williams 

Saul, Roe d., v. Dawson . . 129, 130 

Saunders v. Middlesex (Sheriff) 65, 93 

Saunderson v. Baker . . . . 13 

Saxton v. West 200 

Scales v. Sargeson. . .. .. 390 

Scarfe v. Halifax . . . . 77 

Scarlett v. Hanson . . . . 376 

Schulze v. G-. E. Rail. Co. . . 414 

Scorell v. Boxall 252 

Scott v. Lewis . . . . . . 379 

. v. Morley . . 57, 80, 279, 2S0 

v. Peacock .. .. .. 188 

■ v. Scholey .. .. 78,110 

Seal v. Claridge 340 

V.Hudson .. .. 14,518 

Searle v. Matthews . . . . 389 

Seaward v. Williams . . . . 389 

Semayne's Case . . 67, 68, 129, 177 
Semple v. Keen . . . . 193, 194 

Shadgett v. Clipson . . . . 175 

Shakespeare, In re, Dealrin v. 

Lakin 280 

Sharp v. Birch 342 

. v. Brown 321, 338, 343, 356 

v. McHenry 321, 338, 343, 356 

Shattock v. Carden . . 89, 93 

Shaw v. Kirby . . . . 82, 88 

Shears v. Jacobs . . . . . . 339 

Sheers v. Brooks 

Sheffield and S. Yorkshire Per- 
manent Benefit Building Society 
v. Harrison 
Shepherd v. Pulbrook 

v. Wheble 

Sherwood v. Clarke 
Stingier «. Holt .. .. L 377, 378 
Shoppee v. Nathan .. .. 497 
Shrfmpton v. Sidmouth Rail. Co. 243 
Sibley v. Higga 329 

Silk r. Humphrey . . . . . . ISO 

Silver Hill .Mining Co., In re .. 239 
Simmons v. Woodward 328, 339, 341 
Simpson v. Ronton . . . . 180 



PAGE 



68 



263 
309 
501 
114 



Skinner v. City of London Marine 
Insurance Corporation 

Slack v. London (Sheriffs) 

v. Midland Rail. Co. 

Slackford v. Austen 

Sladden v. Sergeant 

Slade v. Hawley . . 

Slater v. Staines . . 

Slowman v. Back . . 

Smallcomb v. Cross 

Smallman v. Pollard 

Smart v. Hutton . . 

Smith, In re 

v. Broadbent 

v. Critchfield 

v. Darlow . . 

■ v. Keal 

v. Maclure . . 

v. Milles 

v. Pritchard 

v. Russell . . 

v. Whitlock 

, Edwards & Co. v 

garthen . . 

, Fleming & Co.'s Case . . 

, Knight & Co., In re, Wes- 
ton's Case 

Smith's Estates, In re, Clements 
v. Ward 

Snowball v. Dixon 

■ v. Goodricke 



360 



413 

.. 499 
.. 415 

188, 194 
.. 339 
.. 91 
.. 517 

378, 384 
.. 76 
.. 288 
13, 494 
.. 139 
.. 518 
.. 374 

391, 395 

59, 60 

.. 263 

.. 13 

.. 493 

67, 285, 286 

.. 281 

Tre- 

.. 414 

239 

241 

279 
179 
500 
131 
111 



Somerset (Duke) v. Cookson 
South, In re 
Southam, Ex parte, In re Southam 325 
Southport and W. Lancashire 

Banking Co. v. Thompson . . 262 
Spackman, lure, Ex parte Foley 349, 

350 
Sparks v. Spinks .. .. .. 181 

Sparrow v. Bristol (Earl) . . 78 

Speck v. Phillips 412 

Spence v. Stuart .. .. ..184 

Spindler, In re, Ex parte Rolph. . 321 
Standard Manufacturing Co., In 

re 316,317 

Stanton v. Suliard. . .. ..517 

Starr v. London (Mayor, &c.) . . 421 
Stead v. Gascoigne . . . . 86 

Steamship Titian Co., In re . . 241 
Steed v. Layner . . . . . . 106 

Steele. Alan 186 

Stevens v. Marston .. ..310 
v. Mid Hants Rail. Co. . . 241 



«,. PeU 

, Doe d., v. Donston 

Steward v. Lombe. . 



Stimsonv. Farnham 

Stockdale v. Hansax-d 

Stocker v. Heggerty 

Stogdon v. Lee 

Stonehouse v. Ewen 

Stracey v. Hulso 

Stratford v. Twynam 

Streatham & General Estates Co. 
v. Commissioners of Public 
Works, Ex parte Phillips . . 43G 



405, 413 

.. 78 

.. 253 

.. 91 

87, 416, 418 

. 382, 393 

. 271, 280 

.. 114 

.. 148 

.. 86 



TABLE OF CASES CITED. 



XXXI 



Streeter, Ex pai*te, In re Morris 

391, 395 
Strong v. Dickinson . . . . 193 

Stubbs v. Lainson . . . . 90 

Summers v. Mosely . . . . 180 

Suter v. Burrell 499 

Sutton v. Baillie 414 

v. Bath 337 

Swain v. Morland . . . . . . 148 

Swaine v. Spencer. . .. .. 388 

Swift v. Pannell ..301, 318, 340, 343 
Syers v. Met. Board of Works . . 423 
Sykes v. Sykes . . . . 74 



Tailby v. Official Receiver . . 318 

Tait r. Mitchell . . . . 14, 89 

Tancred v. Allgood . . . . 73 

Tanner v. Swindon, &c. Rail. Co. 437 

Tapley v. Battine 182 

Tarleton v. Dummelow . . . . 377 

Tarlton v. Eisber 187 

Tarn, In re 396 

Taurine Co., In re . . 241, 242 

Taylor v. Best 71 

v . Brander . . .. ..192 

v. Burgess.. .. .. 193 

■ v. Clemson.. .. .. 436 

v. Lanyon . . . . . . 289 

Thelluson v. Fletcher .. ..413 

Thomas, In re .. .. .. 516 

v. Kelly . . 325, 335, 336, 398 

v. Mirehouse . . 286, 290 

v. Newman . . . . 91 

r. Patent Lionite Manu- 
facturing Co 242 

v. Searles 319, 320, 325 

Thompson, In re, Nalty v. Aylett 193 
In re, Reg. v. Wood- 
ward . . . . 205 
v . Tottenham & Forest- 
gate Rail. Co. . . 427 

■ v. Webster . . . . 369 

, Doe d., v. Mirehouse.. 130 

Thomson v. Moore . . . . 185 

Thoroughgood's Case . . . . 81 

Thorp v. Cregeen . . . . . . 327 

v. Hook . . . . . . 503 

Throssell v. Marsh . . . . 337 

Thurgood r. Richardson . . . . 289 

Thurso Gas Co., In re . . . . 239 

Thynne v. Sari 127 

Tidey, Ex parte 354 

Tilney v. Stansfield . . . . 503 

Tiverton & N. Devon Rail Co. v. 

Loosemoor .. .. ..422 

Todd, Ex parte, In re Ashcroft. . 371 

v. Wright 193 

Tomlinson v. Land and Finance 

Corporation . . . . 3S4, 389 

Tompkins. >n v. Russell ., 'J 1 7 

Tims v. Wilson 347 

Topham < . (Irecnside Glazed Fire 

Brick Co. 2G5 



PAGE 

Topley v. Corsbio 331 

Towne v. Crowder. . . . 93 

Townend v. Yorkshire (Sheriff) . . 518 
Townsend, In re, Ex parte Parsons 310 
Triminger v. Keen . . 53 

Trinder v. Raynor. . . . . . 345 

Tuck v. Southern Counties De- 
posit Bank .. .. 319, 343 

Tullett v. Armstrong . . . . 270 

Turner v. Bridgett . . 84, 396 

v. Culpan 331 

Turquand, Ex parte, In re Parker 343 

■ v. Board of Trade . . 353 

Tweedale, In re, Ex parte Twee- 
dale 312 

Twogood v. Morgan .. ..391 
Twyne'sCase 371 



U. 



Underbank Mills Cotton 
Manufacturing Co., In re 
F/nderden v. Burgess 
Union Bank v. Lenanton . . 
United Horseshoe and Nail Co. 
Stewart . . 

Service Co. , In re 

■ Telephone Co. v. Dale 

Universal Disinfector Co., In re 
Upton v. Wells 
Usher v. Martin 



and 



237 

390 

77 

414 
241 
80 
240 
129 
338 



Vansittart, In re, Ex parte Brown 372 
Vickery v. L. B. & S. C. Rail. Co. 409 
Yillars, In re, Ex parte Rogers 84, 

85, 86 
Viner v. Clarke . . . . . . 405 

Vron Colliery Co., In re . . 239, 240 



W. 

Wagstaff v. Shorthorn Dairy Co. 1 1 4 
Wake v. Hall . . . . 257, 269 

Walbank v. Quarterman . . ..518 

Wale v. Westminster Palace Hotel 

Co 419 

Walker v. Hunter 82 

■ v. London and Blackwall 

Rail. Co 429, 431, 434, 137 

Wallace v. Humes. . 
Walpole v. Alexander 
Walsall r. Eeath .. 
Wansbrough v. Maton 
Ward r. Dudley t '.ami. -- 

v. Macaulay . . 

Waring v. Dewberry 
Warman's ( >ase 
Warraoll v. Young 
Warren, Ex parte, In re Holland 363, 

366 
Waterfall v. Penistouc . . . . 264 





410 




1S1 




111 




251 


ss) 


268 




73 




67 




199 




93 



XXX11 



TABLE OF CASES CITED. 



PAGE 

Waterhouse v. Gilbert . . 395, 396 
Watkins, Ex parte . . . . 185 

■ v. Evans.. .. .. 334 

— v. Land Securities Co. . . 263 



Watson, In re, Ex parte Official 



Receiver . 
Carroll .. 
Delcroix 
Strickland 



193, 



310 

197, 494 

.. 405 

.. 332 



Watts v. Jeffreys 

Webb v. Eairmaner . . 88 

v. Shaw 395 

v. Taylor 184 

Webber v. Hutchins . . . . 58 

Webster, Ex parte, In re Morris 339, 

344, 392 

„. Delafield . . . . 382 

Weeton v. Woodcock . . . . 252 

Welch, Perrin & Co. v. Anderson 

&Co 414 

Wells, In re, Ex parte Kent 

(Sheriff) 515 

Welsted & Co., Debenture holders 

of, v. Swansea Bank . . . . 317 

Wenman v. Lyon . . . . . . 312 

West v. Hedges 289 

v. Rotkerham . . 390, 391 

Westbury r. Twigg . . . . 241 

West Cumberland Iron and Steel 

Co., In re 242 

Westerman v. Rees . . . . 395 

Westmoreland, Doe d., r. Smith 78 

Whale v. Booth 74 

Whalley v. Williamson . . . . 178 

Wheatley v. Silkstone and Haigh 

Moor Coal Co 317 

White v. Binstead. . . . 285, 286 

v. Chappie 49 

v. Morris 500 

Whitehead v. Bennett . . . . 256 

Whitehouse v. Wolverhampton & 

Walsall Rail. Co 425 

Whitworth v. Gaugain .. 112,113 
Wigsell v. School for the Indi- 
gent Blind . . . . . . 415 

Wilde v. Waters 250 

Wildes v. Morris 219 

Wilkinson, Ex parte, R. V. Raw- 
lings 150 

Wilks v. Popjoy . . . . . . 376 

Willett v. Sparrow . . . . 90 

Williams v. Crossling . . 384, 389 

v. Frith 411 

v.Jones.. .. .. 177 

v. Lewis . . . . 175 

v. Lewsey . . . . 289 

v. Mercier . . . . 273 

■ v. Richardson . . . . 391 

v. Webb.. .. 185, 201 



PAGE 

Williamson v. Harrison . . . . 495 

Willies v. Farley 77 

Willis, In re, Ex parte Kennedy .313 
Willis, Winder & Co. v. Coombe . 69 
Wilson v. Glossop . . . . . . 275 

Wilton v. Chambers 49, 94, 495, 502 
Wimbledon Local Board v. Under- 
wood . . . . . . . • 305 

Winfield v. Boothroyd . . . . 132 

Winn v. Ingilby . . 251, 252, 268 

Winter v. Bartholomew 

r. Campbell 

v. Dibdin . . 

v. Kretchman 



v. Miles 

Wintle 



378, 394 

72 

182 

224 

1S1 



Chetwynd (Lord) 65,90, 119 

v. Freeman . . . . 89 

Witham v. Kershaw . . . . 414 

Withernsea Brickworks, Re . . 241 

Witt v. Banner 324 

v. Parker . . . . 395, 396 

Wittenbury v. Law . . . . 243 

Wood, In re, Ex parte McHattie. 337 

v. Dixie . . . . . . 64 

v. Finnis 194 

v. Rowcliffe . . 86 

r. Wood 72 

Woodgate v. Godfrey . . . . 309 

v. Knatchbull . . . . 494 

Woodhani, In re, Ex parte Conder 360 
Woodland v. Fuller . . 12, 77 

Woodman v. Gist 194 

Woolford's Estate, Trustee of, v. 

Levy 360, 496 

386 

92 

111 

428 

354 

84 

507 

237 

92 

SO 

197 

91 

93 



Woollen v. Wright 

Wordall v. Smith 

Worral Waterworks Co. v. Lloyd 

Worsley v. S. Devon Rail. Co. . . 

Wray, In re 

Wright v. Child 

v. Greenacre 

v. Horton . . 

v. Lainson . . 

v. Redgrove 

. Stanford 

Birch 

, Pearson 



Wylie 



Wyman v. Knight. 



125, 131, 133 



Yabsley v. Doble 501 

Yaroth v. Hopkins . . . . 91 

Yate v. Swaine . . . . . . 405 

Yates, In re, Batcheldor v. Yates. 266 

■ v. Ashcroft . . . . 342 

Young, Ex parte, In re Symonds. 342 
■ , In re, Trye v. Sullivan . . 279 



( xxxiii ) 



TABLE OF STATUTES CITED. 



13 Edw. 1, c. 18 (Statute of Westminster) 
35 Edw. 1 . . 



3 Hen. 
23 Hen. 



8, c. 



28 Hen. 8, c. 12 
33 Hen. 8, c. 39 

5 Eliz. c. 23 



s. 51 



s.l 

s. 2 
88. 3—7 
13 Eliz. c. 4 . . 

c. 5 
27 Eliz. c. 4.. 
29 Eliz. c. 4 
16 Car. 1, c. 10, s. 8 .. 
22 & 23 Car. 2, c. 10 (Statute of Distribution) 
29 Car. 2, c. 3 (Statute of Frauds) 

8. 7 

s. 10 .. 

8.16 

s. 24 . . 
c. 7, s. 6 

31 Car. 2, c. 2 

s.2 

8. 9 

1 Jac. 2, c. 17 (Statute of Distribution) 

7 & 8 Will. 3, c. 3, s. 7 

8 & 9 Will. 3, c. 8 

c. 11 .. 

7 Anne, c. 12, ss. 3—5 

c. 21, 8. 14 .. 

8 Anne, c. 14 

s.l 

ss. 6, 7 
8. 8 
3 Geo. 1, c. 15, ss. 3, 16 .. 
20 Geo. 2, c. 37 

32 Geo. 2, c. 28, ss. 1, 4 . . 
3 Geo. 3, c. 53, s. 3 . . 

25 Geo. 3, c. 35 . . 

38 Geo. 3, c. 52, a. 3 .. 

43 Geo. 3, c. 140.. 

44 Geo. 3, c. 102 
53 Geo. 3, c. 127 

a. 1 . . 
56 Geo. 3, c. 50 . . 

aa. 1—3 
as. 4—6 
as. 7—10 
c. 100, 8a. 1—4, 6 

M. 



64 



99 



14G 



.37 



PAGE 

52, 100, 109 
.. 11 
.. 448 
.. 450 
.. 450 
.. 451 
.. 181 
136, 147 
.. 147 
.. 160 
.. 198 

160, 161 
.. 161 

136, 147 
369—371 

113, 372 
.. 507 
.. 161 
.. 275 

109, 184 
.. 99 
.. 109 
76, 77, 99 
.. 275 
.. 62 

159, 161 
.. 199 
.. 162 
.. 275 
.. 467 
.. 404 

224, 225 
.. 71 
.. 467 
288, 290 
148, 286 
.. 288 
67, 290 
.. 508 
.. 88 
.. 180 
.. 467 
.. 152 

161, 162 
.. 161 
.. 161 
.. 198 

160, 195 
148, 246 

.. 244 
.. 245 
.. 246 
.. 161 



286 

Go 



XXXIV 



TABLE OF STATUTES CITED. 









PAGE 


57 Geo. 3, c. 117 






136, 137 


3 Geo. 4, c. 46 . . 




, , 


218, 219 


ss. 2, 5, 6, 8 .. 






.. 218 


s. 10 




. , 


218, 221 


4 Geo. 4, c. 37 






.. 218 


s. 1 




, , 


.. 219 


s. 3 . . 






.. 218 


s. 4 




, , 


.. 219 


s. 5 . . 






.. 218 


6 Geo. 4, c. 50 (County Juries, 1825) 


.448, 


458 


461, 465 


s. 1 . . 




409, 


447, 455 


s. 11 




, , 


.. 409 


s. 12 .. 






409, 456 


s. 14 




# , 


.. 467 


s. 15 .. 






471, 473 


s. 20 




, , 


.. 448 


s. 21 .. 






.. 467 


s. 22 




, , 


456, 467 


s. 23 . . 






.. 482 


s. 24 




, , 


.. 483 


s. 25 . . 






409, 464 


s. 26 




t 9 


.. 480 


s. 30.. 






.. 448 


s. 31 




, t 


409, 448 


ss. 32—34 






.. 448 


s. 35 




, , 


448, 484 


s. 36 .. 






448, 451 


s. 37 






.. 479 


s. 38 . . 




409* 


446, 479 


s. 39 






.. 467 


s. 40.. 






464, 485 


s. 41 






458, 486 


s. 42.. 






.. 458 


s. 43 






.. 457 


s. 40.. 






.. 486 


s. 50 


. 409 


,449 


,451,461 


s. 51 .. 






409, 479 


s. 52 




, , 


408, 409 


s. 53.. 






.. 408 


7 Geo. 4, c. 46 (Banking Companies) 




, , 


235, 243 


ss. 12, 13 






.. 243 


7 & 8 Geo. 4, c. 53, ss. 95, 96 






.. 223 


1 & 2 Will. 4, c. 58 (Interpleader) . . 373, 383, 


*384, 


387, 


392, 393 


s. 6 




t t 


.. 391 


2 & 3 Will. 4, c. 39 . . 






.. 181 


c. 93, ss. 1—3 






.. 160 


3 &4 Will. 4, c. 22, ss. 11, 12 






.. 439 


c. 41, s. 28 




, , 


.. 160 


c. 42, s. 3 






.. 88 


s. 16 




1 1 


.. 404 


s. 18 






.. 417 


ss. 28, 29 






.. 415 


c. 71 






.. 442 


c. 74 






.. 272 


ss. 77, 90 . . 






.. 272 


c. 99, s. 32 






.. 221 


c. 105 (Dower, 1833) 






.. 275 


ss. 2— 11 






.. 274 


4 & 5 Will. 4 , c. 36 (Central Criminal Court, 1834), s 


*4 . 




.. 457 


7 Will. 4 & 1 Vict. c. 22 (Deaths and Births Registration, 1 


337), 


s. 18 454 


c 55 .. . . ..12, 


507, 


509, 


512, 515 


c. 73 . . 




, , 


.. 235 


s. 24 . . 






.. 243 


1 & 2 Vict. c. 96 . . 






.. 235 


C. 110 




100 


110, 114 


s. 3 




, , 


.. 176 



TABLE OF STATUTES CITED. 



XXXV 



1 & 2 Vict. c. 110, s. 11 .. 


, # 


108 


109, 112 


s. 12 


. • • 




.. 71 


8. 13 






101, 113 


2 & 3 Vict. c. 11, s. 5.. 






101, 10S 


ss. 9— 11.. 


, , 




146, 147 


3 & 4 Vict. c. 82 






.. 101 


8.2 






.. 101 


c. 93, s. 1 .. 






.. 195 


4 Vict. c. 20, s. 24 






.. 144 


5 & 6 Vict. c. 35 (Income Tax, 1842), s. 35 


* • • 




.. 454 


c. 86, s. 8 


, # 




.. 152 


6 & 7 Vict. c. 73, Sch. I., Part I. 






9 


7 & 8 Vict. c. 32 . . 






.. 235 


c. 61, s. 1.. 






.. 63 


c. 96, s. 67 


, , 




67, 290 


c. 113, s. 47 






.. 235 


8 & 9 Vict. c. 16 (Companies Clauses Consolidation, 1845). 


.234 


, 314, 419 


ss. 8, 9, 36 . . 






.. 243 


c. 18 (Lands Clauses Consolidation 


, 1*845) 


419, 


123—426, 




431, 433, 


436- 


-439, 513 


ss. 2, 3 






.. 426 


s. 14 .. 


, 9 




.. 430 


ss. 16—22 .. 


• • • 




.. 419 


s. 23 . . 


, t 




.. 420 


B. 24 


• • • 




419, 430 


ss. 25—37 


, , 




.. 421 


ss. 38, 39 


t • • 




.. 427 


s. 40 .. 


t , 




.. 428 


8.41 


• • • 




.. 429 


s. 42 .. 


# , 




. .. 432 


s. 43 


• • t 




.. 433 


s. 4 4 . . 


, ( 




. 431, 433 


s. 45 


• ■ « 




.. 434 


s. 46 . . 






. ..432 


8.47 


* • • 




.. 434 


s. 48 .. 


, , 




. .. 432 


ss. 49, 50 






.. 435 


ss. 51 — 53 . . 


, 9 




.. 437 


ss. 55, 56 


• • • 




.. 432 


s. 57 .. 


, , 




. .. 431 


ss. 58—62 


» • • 




.. 421 


s. 63 .. 


, , 




419, 421 


ss. 64— 67 .. 


. • • 




.. 421 


s. 68 .. 


, , 




. 420, 436 


8.91 


• • • 




.. 421 


ss. 93— 113 






. .. 422 


s. 114 






422, 423 


ss. 119—126 






.. 423 


c. 20 (Railways Clauses Consolidation, 1845) 




.. 419 


ss. 6—24, 30—44 


t • • 




.. 424 


ss. 78—85 






.. 425 


c. 127, s. 8 






.. 73 


9 & 10 Vict. c. 93 (Lord Campbell's) 


, , 




.. 414 


13 & 14 Vict. c. 83, ss. 20, 21 . . 


• • » 




.. 425 


14 & 15 Vict. c. 25, s. 1 . . 


, , 




.. 248 


8. 2 


■ t • 




217, l'SS 


8. 3 . . 


, , 




. . 258 


15 & 16 Vict. c. 76 (Common Law Procedure, 


L852) 




448, 483 


8.10.').. 


, , 




.. 445 


s.106 


* • • 




.. 467 


s.107.. 


, t 




457, 46S 


s. 108 


445 


, 46*8 


481, 512 


s. 110.. 


, , 




.. 481 


s. 112 


• • • 


, 


.. 457 


8.113.. 






.. 458 


c2 









XXXVI 



TABLE OF STATUTES CITED. 



15 & 16 Vict. c. 76, s. 114 .. 


. • • • 


s.126 


. . • • • • 


8.132.. 


, , , , 


17 & 18 Vict. c. 36 (Bills of Sale, 1854) 


.. 264,291,292, 


311—313, 


317, 337, 339, 341, 


s. 1 .. 


292, 317, 337—339, 


s. 2 


. . . . 


s. 3 . . 


. . 


8. 4 


. • .• • • 


ss. 5, 6 . . 


• • • • 


s. 7 


263, 293, 


s. 8 . . 


. • • • 


c. 125 (Common Law Procedure, 1854) 


s. 59 . . 


• * • • 


s.75 




s.132 


• • • • 


18 & 19 Vict. c. 15 


• • . . • • 


ss. 4,5 


. t • • 


s. 11 




19 & 20 Vict. c. 97 (Mercantile Law Amendment, 1856), s. 


s. 2 . . 


• . • • 


20 & 21 Vict. c. 57 


. . • • • • 


c. 85, s. 21 . . 




21 & 22 Vict. c. 108, s. 8 


• • ■ • • • 


22 & 23 Vict. c. 21 


t • • • 


s. 32 


■ • • * t • 


ss. 33—35 


f t , t 


ss. 36, 37 . . 


■ • • • • • 


c. 22, s. 18 . . 


• • • • 


c. 35, s. 11 


• • • • • • 


s. 22 .. 


• ■ • • 


23 & 24 Vict. c. 38, ss. 1,2 . . 


• • • * * • 


c. 106 (Lands Clauses Consolidation, 1860) 


s. 7 


• * • • . . 


c. 115 


• • • • 


c. 126 (Common Law Procedure, 1860) 


s. 13 .. 


■ • • i 


8.17 


• • • • 


24 Vict. c. 10 (Admiralty Court, 1861), 


s. 16 


24 & 25 Vict. c. 100, s. 36 


• • • . ■ ■ 


25 & 26 Vict. c. 89 (Companies, 1862) 


..149, 234—236, 


ss. 25—27, 32, 33, 39- 


-61 


ss. 74—83 




s. 84 




s. 85 


• • . . 


s. 86 




s.87 




s. 88 


• • • • * * 


s. 89 




ss. 90—129 




88. 130 .. 


• • • • 


ss. 131—137 . . 


• • • • • • 


s.138 .. 


• • • • 


ss. 139—162 .. 




s. 163 .. 




ss. 164— 173 .. 


• • t 1 • • 


s. 194 




s. 195 




ss. 197—203 


■ * t • 


s. 204 


• • A * • • 


c. 107 (Juries, 1862) . . 


. • 


s. 11 ' .. 


• • • • • ■ 


s. 12 


• • • t 


s. 13 


., 


8. 14 .. 


• • • • 



26 Vict. c. 20 



308. 



PAGE 
.. ..482 
.. 192 
.. ..224 
294, 301, 309, 
342, 344—347 
341, 343, 345 

293, 325 

293, 343 
.. 293 

293, 343 

317, 345 
.. 294 
.. 448 
.. 458 
.. 132 
.. 242 
.. 146 
.. 101 
.. 112 
.. 76 
.. 132 
.. 273 
.. 271 
.. 271 

218, 219 
.. 219 
.. 220 
.. 221 
.. 475 
.. Ill 

146, 147 

101, 102 
.. 423 
.. 423 
.. 146 
.. 374 

376, 384 

395, 396 
.. 376 
.. 186 

242, 314 
.. 237 
.. 238 

238, 241 

238, 240 
.. 238 

238, 239 
.. 238 

238, 241 
.. 238 

238, 242 
.. 238 

238, 241 
.. 238 

238, 240 
.. 238 
.. 235 

235, 243 
.. 238 

238, 240 
.. 463 

409, 465 

409, 479 
.. 486 
.. 466 
.. 161 



374 



240, 



TABLE OF STATUTES CITED. 



XXXV11 



PAGE 

26 & 27 Vict. c. 92 (Railway Clauses, 1863), ss. 20, 21 .... 425 

c. 118 (Companies Clauses, 1863) .. .. .. 231 

27 & 28 Vict. c. 32 . . . . . . . . .... 235 

c. 112 .. .. .. .. .. 102, 109 

ss. 1, 3 .. .. .. .... 101 

ss. 4, 5 . . . . , . . . 102 

28 & 29 Vict. c. 104 (Crown Suits, &c, 1865) . . . . 136, 147 

s. 5 .. .. .. .. ..148 

s. 46.. .. .. .. .... 483 

s. 47 .. .. .. .. 137, 138 

s. 48.. .. .. .. .... 147 

s. 50 .. .. .. .. ..152 

c. 126 (Prison, 1865) .. .. .. .. 487, 488 

ss. 03, 64 . . . . . . . . . . 162 

29 & 30 Vict. c. 14 (County Courts, 1865) . . . . .... 375 

c. 96 (Bills of Sale, 1866) . .291, 294, 301, 343, 344 

ss. 1—4 . . . . . . .... 294 

ss. 5—11 .. .. .. .. ..295 

c. 109, s. 97.. .. .. .. .... 183 

30 & 31 Vict. c. 36 .. .. .. .. .. ..488 

c. 127 (Railway Companies, 1867) .. .. 73,234 

ss. 3—5 .. .. .. .. ..236 

s. 6 .. .. .. .. .... 238 

s. 7 .. .. .. .. 238,241 

s. 8 .. .. .. .. .... 238 

s. 9 .. .. .. .. 238,241 

ss. 10—22, 31—35 . . . . .... 238 

c. 131 (Companies, 1867) . . . . . . 234, 236 

ss. 40—46 . . . . . . .... 238 

c. 142 (County Courts, 1867), s. 8 . . . . . . 375 

31 Vict. c. 24 (Capital Punishment Amendment, 1868), s. 2 . . . . 489 

ss. 3, 4 . . . . . . . . . . . . 490 

ss. 5, 6 .. .. .. .. .... 491 

s. 7 .. .. .. .. .. ..489 

s. 9 .. .. .. .. .... 490 

s. 10 .. .. .. .. .. ..491 

s. 11 .. .. .. .. .... 489 

ss. 14, 15 . . .. .. .. .. 492 

31 & 32 Vict. c. 119 (Regulation of Railways, 1868) . . . . . . 427 

ss. 41—43 . . . . . . . . 425 

s. 145 .. .. .. .... 437 

c. 125,s. 28 .. .. .. .. ..521 

32 & 33 Vict, c. 18 (Lands Clauses Consolidation, 1869), s. 3 . . 423 

c. 62 (Debtors, 1869) . . . . 26, 155, 160, 194, 196, 512 

s. 4 .. .. .. 155, 156, 158, 160 

s. 5 .. .. .. 155—157,160,179,197 

sub-s. 2 . . . . . . . . 194 

s. 6 .. .. 33, 157, 158, 160, 191, 194, 197 

s. 15 .. .. .. .. ..367 

c. 71 (Bankruptcy, 1869) .. 301,304,354,362,363 

s. 87 .. .. .. .. 241, 362 

33 & 34 Vict. c. 52 (Extradition, 1870), s. 11 . . .... 161 

c. 77 (Juries, 1870) .. 37, 409, 447, 448, 459, 461, 462, 

465, 4S4 

s. 4 .. .. .. .. .... 448 

8.6 .. .. .. 409,448.451,461 

8. 7 .. .. .. .. .... 448 

8.8 .. .. .. .. 409,452 

s. 9 .. .. .. ..409, 452, 455, 462 

s. 10 .. .. .. .. 409,452 

s. 11 .. .. .. .. .. 449, 461 

s. 12 .. .. 455,463,464,470,471 

s. 13 .. .. .. .. .. 409, 462 

s. 14 .. .. .. .. 409, 449 

8 15 ... 449 

s.16 .. ' .. 409,449, 458, 468, 481 



XXXY111 



TABLE OF STATUTES CITED. 



Vict. 


c. 


77, s. 
s. 

s. 

s 

ss. 


17 .. 
19 

sub-s. 

sub-s 
20 .. 
21 
22, 23 


2 

3 



PAGE 

33 & 34 Vict. c. 77,8.17 458,481 

409,458 

. . 449, 455 

..449 

..409,465,466,479 

409,459 

.... 484 

93, (Married Women's Property, 1870) . . 270, 271, 275— 

277, 282 
ss. 1—5 .. .. .. .. ..277 

ss. 7, 8, 12 . . . . . . .... 282 

c. 104 (Companies, 1870) .. .. ..234,236,238 

34 Vict. c. 2 (Juries Act (1870) -Amendment) . . . . . . 484 

34 & 35 Vict. c. 103 (Customs and Inland Revenue, 1871), s. 30. .454, 462 

35 & 36 Vict. c. 41, s. 4 . . . . . . . . .... 241 

c. 52, s. 1 .. .. .. .. ..459 

c. 57 (Debtors (Ireland), 1872), s. 5 .. .. ..156 

36 & 37 Vict. c. 66 (Judicature, 1873) . . . . . . . . 100 

s. 19 .. .. .. .. .... 396 

s. 24 . . . . . . . . . . 74 

sub-s. 4 . . . . . . .... 377 

sub-s. 5 . . . . . . . . 80 

s. 25 .. .. .. .. .... 74 

sub-s. 8 . . . . . . . . 384 

s. 49 .. .. .. .. .... 396 

37 & 38 Vict. c. 35 (Statute Law Revision, 1874) . . . . 235 

c. 50 (Married Women's Property, 1874) . .270, 271, 276,277 
s. 5 .. .. .. .. ..282 

c. 85 (Public Worship Regulation, 1874), s. 5 .. ..160 

c. 96 (Statute Law Revision (No. 2), 1874) . . . . 235 

38 & 39 Vict. c. 77 (Judicature, 1875), s. 10 . . . . . . 149, 241 

s. 24, sub-s. 5 .. .. .. ..238 

c. 92 (Agricultural Holdings (England), 1875) . . . . 251 

s. 53 .. .. .. .. ..258 

39 & 40 Vict. c. 36 (Customs Laws Consolidation, 1876), s. 9 . . 1, 455 

ss. 243, 244 .. .. .. ..161 

ss. 247—254 . . . . . . .... 223 

c. 57 (Winter Assizes, 1876) . . . . . . 441 

c. 59 (Appellate Jurisdiction, 1876), s. 20 .. ..396 

40 & 41 Vict. c. IS (Settled Estates, 1877) . . . . . . 278 

c. 21 (Prison, 1877) .. .. .. .. 478, 488 

s. 28 .. .. .. .. ..162 

c. 26 (Companies, 1877) .. .. .. 234, 236 

c. 46 (Winter Assizes, 1877) .. .. 441,487 

41 Vict. c. 19 (Matrimonial Causes, 1878) . . . . . . . . 271 

41 & 42 Vict. c. 31 (Bills of Sale, 1878). .86, 291, 295,302, 307, 309—311, 

313—315, 319, 338—341, 344 
ss. 1—3 . . . . . . . . . . 295 

s. 4 .. 263—265, 296, 302, 308, 310—312, 317, 345 
s. 5 .. .. .. 264,265,297,317 

s. 6 .. .. .. .. 265,298,313 

s. 7 .. .. .. .. 298,317 

s. 8 .. 298,305,308,319,321,343,345,347 
s. 9 .. .. .. .. ..299 

s. 10 .. .. 299,304,325,337—340,342—344 

s. 11 .. .. 300,302,339,343,344 

s. 12 .. .. .. .. 301, 302, 343 

s. 13 .. .. .. .. 301, 343 

s. 14 .. .. .. .. 301, 343, 344 

s. 15 .. .. .. .. 301, 343 

8. 16 .. .. .. .. 301, 305, 343 

..301 
.. 301, 305 

..301 
291, 292, 294, 301 

..302 



19 



88. 17 

s. 20 .. 
ss. 21, 22 
8. 23 . . 
s. 24 





TABLE OF STATUTES CITED. 


XXXIX 

TAOE 


41 & 42 Vict 


c. 33 (Dentists, 1878).. 


. . . 456 




s. 30 


455, 462 




c. 54 (Debtors, 1878), s. 1 


. 156, 160 


42 & 43 Vict 


c. 1 (Spring Assizes, 1879) 


441, 487 




s. 3 .. 


. .. 441 




c. 59 (Civil Procedure Acts Repeal, 1879) . . 


.. 181 




8. 3 . . 


.. 226 




c. 76 (Companies, 1879) 


234, 230 


43 Viet. c. U 


1 (Companies, 1880) 


2:34, 2:;G 


43 & 44 Vict 


c. 19 (Taxes Management, 1880), s. 40 


.. 454 




c. 42 (Employers' Liability, 1880) 


.. 414 


44 & 45 Vict, 


c. 41 (Conveyancing, 18S1) 


.. 271 




s. 20 . . 


333, 334 




c. 58 (Army, 18S1) 


.. 73 




s. 144.. 


.. 183 




s. 146 


2 




s. 147 . . 


. . 455 




s. 181, sub-s. 5 


2 




c. 64 (Central Criminal Court (Prisons), 1SS1) . 


.. 4S7 




s. 2, sub-s. 5 


.. 487 


45 & 46 Vict. 


c. 15 (Commonable Rights Compensation, 1882) 


.. 422 




c. 43 (Bills of Sale, 1882) . . 291, 302, 306, 


307, 310, 




312—316, 318, 325, 326, 335, 338, 340 


344, 345 




88. 1, 2 


.. 302 




s. 3 .. .. .. 302,308 


317, 318 




s. 4 .. .. 265,260,302,319, 


323—325 




s. 5 .. .. 205,266,303,317- 


-319, 343 




8. 6 . . . . 265, 303, 317 


318, 343 




s. 7 . . . . 303, 326, 328, 330, 


333—335 




s.8 .. 304,311,316,318,319,323, 


335, 339, 




341 


343, 344 




s. 9 .. .. 304,318,323,325—327 


332, 335 




s. 10 .. .. .. 299 


304, 339 




s. 11 .. 


304, 343 




s. 12 


305, 322 




8. 13 .. 


305, 328 




8.14 


.. 305 




s. 15 .. .. .. ..299, 301 


305, 343 




8.16 .. .. .. ..301 


305, 343 




s. 17 .. .. .. 306, 308, 


314—316 




s. 18 


.. 306 




c. 49 (Militia, 1882), s. 40 


.. 2 




c. 50 (Municipal Corporations, 1882) ..423, 


444, 445 




s. 165 


.. 442 




8. 170, sub-ss. 1, 2 . . 


3 




sub-ss. 3, 4 


.. 4 




c. 75 (Married "Women's Property Act, 1882) 270, 


271,276, 




277, 


280, 282 




s. 1, sub-s. 1 .. 


.. 278 




sub-ss. 2,4 


.. 279 




Bub-s. 5 . . . . . . . . 


.. 281 




s. 2 


.. 283 




ss. 3, 4 


.. 2S1 




s. 5 


277, 278 




8. 6 . . 


.. 277 




8. 7 


.. 278 




ss. 9—13 


.. 281 




8.14 


281, 2S3 




s. 15 .. 


.. 283 




ss. 16, 17 .. 


.. 281 




s. 18 .. 


.. 282 




8.19 


280, 2S3 




ss. 20, 21, 23 .. 


.. 282 


46 & 47 Vict. 


c. 15 (Lands Clauses (Umpire), 1883), s. 1 


.. 421 




c. 52 (Bankruptcy, 1883) .. .. 149, 


157, 334 




s. 4, sub-s. 1 . . . . . . 340, 


351, 371 



xl 



TABLE OF STATUTES CITED. 



241, 



sub 



s. 1 



46 & 47 Vict. c. 52, s. 6, snb-s. 1 

s. 7, sub-ss. 6, 7 ; s. 8, sub-ss. 1, 2 ; s. 9 
ss. 1,"2 
s. 10 .. 

sub-s. 2 
s. 11 .. 
s. 19 
s. 20 . . 
s. 23 
s. 28 . . 
s. 30, sub-s. 1 

sub-ss. 2, 3 

sub-s. 4 
s. 43 . . 
s. 44 
s. 45, sub-s. 1 . . 

sub-s. 2 
s. 46 .. 

sub-s. 1 

sub-s. 2 . . 

sub-s. 3 
s. 47, sub-ss. 1—3, s. 48 
s. 48, sub-s. 2 
s. 52 . . 
s. 54 
s. 103.. 
s. 121 

s. 122, sub-s. 5. . 
ss. 125, 132—140 
s. 141, sub-s. 1. . 
s. 142 
s.145.. 
s. 146 

sub-s. 2 . . 
s. 150 
s. 168.. 
c. 57 (Patents, Designs, &c, 1883) 
c. 61 (Agricultural Holdin 
s. 34 
ss. 54, 60 

47 & 48 Vict. c. 61 (Judicature, 1884), s. 17 

50 & 51 Vict. c. 55 (Sheriffs, 1887) . . . . 71 

ss. 3, 4 
ss. 5, 6 

s. 7 

s. 8, sub-s. 2 

s. 9 

s. 10, sub-s. 1 
sub-s. 2 

s. 11 .. 

s. 12 

s. 13 .. 

s. 14 



s. 15 

s. 18 



s. 20 



s. 21 



sub-s. 1 . . 
sub-ss. 2 — 5 



sub-ss. 1, 2 
sub-ss. 3, 4 

sub-s. 1 
sub-s. 2 . . 
sub-s. 3 
sub-s. 4 . . 



s. 26 
gs (England), 1883) 



99, 219 



PAGE 

351, 367 
sub- 
.. 352 
.. 354 
.. 353 
.. 354 
.. 366 
.. 353 
.. 366 
.. 354 

187, 355 
.. 355 

187, 355 
.. 356 

306, 356 
.. 358 

358, 359 
87, 363 

359, 361 
361, 363 

86, 364 
.. 371 
.. 372 
.. 124 
.. 353 

157, 356 
.. 366 
.. 353 
.. 366 
.. 366 
.. 354 
84, 364 

110, 253 
.. 213 

149, 366 

110, 253, 366 

.. 224 

251, 285 
.. 258 
. . 259 

375, 402 



100, 



470 



, 507, 518 

1 

2 

4 

176 

.. 478 

37, 77, 100 

.. 89 

.. 150 

409, 468 

.. 487 

.. 180 

.. 179 

.. 180 

.. 494 

106, 429 

407, 410 

.. 407 

.. 507 

.. 505 

505, 518 

505, 507 

.. 505 

.. 520 



TABLE OF STATUTES CITED. 



xli 







PAGE 


50 & 61 Vict. 


c. 55, s. 22, sub-s. 1 . . 


.. .. 520 




sub-ss. 2 — 4 . . , . 


.. 521 




s. 23 .. 


.. .. 6 




b. 24 


.. 11 




8. 25 . . 


.. .. 9 




s.26 


.. 14 




8. 27 .. .. .. .. 9, 


14, 19, 498 




s. 28, sub-ss. 1, 2 .. 


.. 20 




sub-s 3 . . 


20, 88, 495 




s. 29 


.. 12 




8ub-8. 1 . . 


.. ..495 




sub-s. 2 


496, 518 




sub-ss. 3 — 6 


.. ..497 




sub-ss. 7,8.. 


.. 498 




s. 30 . . 


. . . . 6, 7 




s. 32 


3 




8. 33, sub-s. 4 . . 


.. ..479 




8. 34 


18, 63 




8. 35 . . 


.. .. 19 




8.36 


4, 476 




s. 38 .. .. .. .. 407,429, 478 




s. 39, sub-s. 5 


., 507 




c. 57 (Deeds of Arrangement, 1887) 


.. .. 368 




s. 4 


.. 367 




8. 5 . . 


.. ..368 




c. 71 (Coroners, 1887), s. 15 


.. 428 




s. 19 .. 


.. ..221 


51 & 52 Vict 


c. 21 (Distress Act Amendment, 1888) 


.. 285 




c. 25 (Railway and Canal Traffic, 1888) 


.. ..234 




c. 41 (Local Government, 1888) 


3 




s. 89 . . 


. . 451, 455 




c. 43 (County Courts, 1888), s. 116 


.. 415 




s. 152.. 


. . . . 65 




s. 160 


.. 290 




c. 48 (Companies Clauses Consolidation, 1888) 


.. 234 




c. 51 (Lands Charges Registration, &c, 1888) 


.. 369 




88. 5, 6 


.. 102 




c. 57 (Statute Law Revision (No. 2), 1888) 


.. 235, 409 


52 & 53 Vict 


c. 37 (Companies Clauses Consolida'tion, 1889) 


.. 234 




c. 49 (Arbitration, 1889), s. 18, sub-s. 2 


.. 161 




c. 63 (Interpretation, 1889), s. 13 


.. ..442 


53 Vict. c. 5 


(Lunacy, 1890), ss. 90—100 


.. 439 


53 & 64 Vict 


c. 21 (Inland Revenue Regulation, 1890), s. 8 


2, 409, 455 




s. 39 


.. 2,409 




c. 29 (Intestates' Estates, 1890) 


.. 275 



c. 33 (Statute Law Revision, 1890) . . 235, 409, 439, 442 
c. 39 (Partnership, 1890), ss. 1, 4, 20, 21 . . . . 79 

s. 23 .. .. .. .. .. 79, 145 

s. 33, sub-s. 2 . . . . . . . . 79 

c. 51 (Statute Law Revision (No. 2), 1890) 146, 147, 235 
c. 53 (Bills of Sale, 1890) . . . . 291, 306, 308, 313 

s. 1 .. .. .. .. .. 306, 325 

ss. 2, 3 . . . . . . . . 306 

62 (Companies (Memorandum of Association), 1890) 234 



c. 63 (Companies (Winding-up), 1890) .. 


234, 238, 240 


c. 64 (Directors' Liability, 1890) . . 


..234 


c. 71 (Bankruptcy, 1890) 


. . 354, 366 


s. 1 


350, 351 


s. 3 . . 


.. ..366 


8. 6 


..367 


s. 8 .. 


.. 354, 355 


8. 10 


.. 355 


8. 11 .. 


.. 87,363 


sub-s. 1 


.. 83, 359, 361 


sub-s. 2 . . 


.. 83,361 



xlii 



TABLE OF STATUTES CITED. 



53 & 54 Vict. 


c. 


71, s. 12 .. 
s. 20 
s. 21 .. 
s. 29 


•• 


•• 


•• 


84 


PAGE 
365 
356 
366 
367 


54 Vict. c. 12 (Railway and Canal Traffic (Provisional 
Amendment, 1891) 


Orders) 


234 


54 & 55 Vict. 
56 & 57 Vict. 


c. 

c. 
c. 


35 (Bills of Sale, 1891) 

s. 1 

s. 2 
65 (Lunacy, 1891),' s. 26 
21 (Voluntary Conveyances, 


1893) 


.. 291, 


306, 


308 


314 
306 
307 
439 
372 



c. 54 (Statute Law Revision (No. 2), 1893) . . 409, 453 

c. 58 (Companies (Winding-up), 1893) .. .. ..238 

c. 63 (Married Women's Property, 1893) 270, 271, 276, 277 
s. 1 .. .. .. .. 276, 280 

s. 2 .. .. .. .. .. 271, 281 



( xliii ) 



TABLE OF RULES AND ORDERS CITED. 



Kegmlae Generates, IT. T., 1846 509 

T. T., 1864 .'.'.512 

ni ... _ M.T., 1869.. 160, 197 

Kules of the Supreme Court, 1883 

Ord. I. r. 1 

r. 2 

Ord. II. r . 1 

Ord. IV. rr. 1, 2 

Ord. XI. . . 

Ord. XII. r. 18 

Ord. XIII. r. o 

r. 6 

Ord. XXXI. 

rr. 21 



23. 



Ord. XXXIV. 
Ord. XXXVI. 



r 58 
Ord. XXXVIII.' r 7 
Ord. XXXIX. 
Ord XL. r. 2 

rr. 3, 4..' 
r. 5 .. 
r. 6 .. 
r. 10 
Ord. XLII. 

rr. 1—4 



224 

.. 394 

.. 224 

.. 33 

.. 24 

. . 155 

132, 404 

.. 404 

32, 387 

.. 155 

28 .. ..501 

32,383 

21, 32, 387 

rr. 14, 15, 19.. 21, 405 
rr. 34, 35 21, 411 

rr. 36, 37.21,411,412 
r. 56 .. 21, 405, 411 
r. 57 .. 21,404 
22,415 
..459 
..394 
..387 
• • 388 

388, 395, 396 
..388 
.. 387, 394 I 
22, 38, 99, 159 



r. 5 

r. 6. 

r. 7 
r. 8 

rr. 9, 10 
rr. 11, 12 

13 

14 

15 

16 

17 
r. 18 
r. 19 
r. 20 
r. 21 
r. 22 
r. 23 
r. 24 
r. 25 
r. 26 



r. 27—30 . . 



22 

22', 125 

.22, 123, 124, 132, 

133 

..23 

23, 99 
.. 23 

24, 160 

24,58 

. • 24, 53, 58 

24, 53 

24, 58 
..25 

25, 52 

25, 160 
. • 25, 26, 53 

26,53 

..26, 53, 160 

26, 235,242,243 

..26 

26, 160 
26 



27 



Rules of the Supreme Court, 1883 
Ord. XLII. r. 31 .. L >7. ' 5 

r-32 .. ..27 

rr. 33, 34 
Ord. XLIII. . . 

r. 1 

r. 2 
rr. 3, 4 



r. 

rr. 6, 7 
it. 8—14 
r. 15 

Ord. XLIV. 

r. l" 
r. 2 

Ord. XLVII. . . 
r. 1 
r. 2 
r. 3 

Ord. XL VIII. rr. 1, 2 

Ord. XL VIII a. . . 



Ord. LII. 

r. 2 .. 

r. 3 .. 

r. 4 .. 

r. 11 

rr. 12, 13 
Ord. LIV. r. 12 
Ord. LVII. . , 

T.l .. 

r. 2 
r. 3 
r. 4 
r. 5 
r. 6 
r. 7 
r. 8 

r. 9 

r. 10 

r. 11 

r. 12 

r. 13 

r. 14 

r. 15 

r. 16 

r. 17.. 
Ord. LVIII. r. 10 
r. 15 
it. 16, 17 
Ord. LXI. rr. 26, -11 

r. 33 
Ord. LXII. 



31, 



.. 28 

28, 99 

.. 28 

28, 117 

28, 123 
29,117,124 

.. 29 
84, 365 
.. 84 

29, 159 
.. 29 

29, 502 

29, 126 
29 

30, 126 
.. 30 

30, 132 

.. 79 

.. 23 

.. 159 

88, 501 

501, 502 

.. 501 

416, 501, 502 

. . 502 

.. 388 

30, 374 

30, 374 
4, 380, 382 

31, 371 
.. 31 

31, 381 
31, 397 

31, 382 
31, 32, 383, 395, 

396 

31, 383, 396 

32, 385 

32, 395, 396 
32, 376, 384 
32, 3S7, 38S 

32, 386 

32, 384, 388, 389 

374, 376, 388 

375, 388 

.. 397 

397, 393 

.. 80 

.. 301 

399—402 

135, 159 



xliv 



TABLE OF RULES AND ORDERS CITED. 







PAGE 


Rules of the Supreme Court, 1883, 


Ord. LXIV. 




159 


Ord. LXV. r. 


27 


..518 


Ord. LXVI. r 


7 


..160 


Ord. LXVIII. 


r. 


2 .. ..136 


Ord. LXLX. 


# 


33, 160 


r. 


1 


..33 


r. 


2 


33, 197, 512 


rr 


3, 


4 33, 191 


r 


5 


..33 


r. 


6 


33, 191 


r. 


7 


..34 


Crown Office Rules, 


1886, 


r. 35 




..161 


rr. 83—95 




.. 159,206 


r. 96 




159, 206, 207 


r. 97 




159,206 


r. 98 




159, 206, 207 


r. 99 




34, 207, 226 


r. 100 .. 




34, 207, 226, 229 


rr. 101, 102 




34,226 


rr. 103—110 




35,226 


rr. 111—119 




36, 226 


rr. 120, 121 




37, 226 


r. 122 .. 




..37 


rr. 123—126 




..159 


r. 127 . . 




37, 225 


r. 158 . . 




37, 409, 459 


r. 159 . . 


37, 


482, 485, 512, 513 


r. 163 .. 




..460 


rr. 217—220 




38, 159 


rr. 221—223 




39, 159 


r. 224 . . 




.. 39, 52, 159 


r. 225 . . 




39, 159 


r. 226 . . 




39, 53, 159, 197 


r. 227 . . 




.. 39, 53, 159 


r. 228 . . 




39, 159 


rr. 229—232 




40, 159 


r. 233 .. 




40, 159, 209 


r. 234 .. 




40, 159 



Crown Office Rules, 1886, 



PAGE 



rr. 235—240 
r. 241 . . 
rr. 242 — 245 
rr. 246—248 
r. 249 .. 
rr. 250, 251 
r. 252 . . 
rr. 253, 254 
rr. 255—260 
r. 261 . . 
r. 262 . . 
rr. 263—268 
rr. 269—275 
r. 276 .. 
r. 277 . . 
r. 278 .. 
r. 279 .. 
rr. 280, 281 
rr. 282, 283 
r. 284 . . 
rr. 285—292 
rr. 293—298 
r. 305 . . 
Bankruptcy Rules 

rr. 13, 92 363 

r. 118 361 

r. 119 363 

rr. 267,269, 336 367 

rr. 355—362 157 

Deeds of Arrangement Act Rules, 

1888 369 

Order as to Sheriff's Fees, 1888 . .506, 
507, 515, 517, 518 
Bankruptcy Rules, 1890, rr. 18—38 . 367 
Deeds of Arrangement Rules, 

1890 369 

Rules in Lunacy, 1892 . . . . 439 
Order in Council as to Circuits, 

1893 441 



41, 159 

41, 159, 161 

42, 159, 161 

42, 159, 161 

42, 159 
.. 159 
159, 161 
.. 159 

' 43, 159 

43, 159, 197 

43 

44 

44, 158 

44, 159 

45, 159 
45, 159, 160 

45, 159 
45, 159, 191 
45, 159, 191 

46, 159 



1886, 



161 
199 
199 
162 
161 
161 
482 
161 
159 
502 
199 
159 
159 
159 
160 
160 
161 
191 
199 
197 
191 
159 
161 



( xlv ) 



TABLE OF ABBREVIATIONS. 



Ad. & E Adolphus and Ellis's Reports. 

Amb Ambler's Reports. 

Anst Anstru ther's Reports. 

A. C.(precededby[1891], Law Reports, Appeal Cases. 
[1892], &c. as the year 

may be) . 

App. Cas Law Reports, Appeal Cases. 

Atk. Sh Atkinson on Sheriffs. 

Atk Atkyn's Reports. 

B. & A Barnewall and Alderson's Reports. 

B. & Ad Barnewall and Adolphus's Reports. 

B. & B Broderip and Bingham's Reports. 

B. & C Barnewall and Cresswell's Reports. 

B. C. R Bail Court Reports, Saunders and Cole. 

B. & S Best and Smith's Reports. 

Bac. Abr Bacon's Abridgment. 

Barn Bamardiston's King's Bench Reports. 

Batt Batty' s Reports (Ireland). 

Beav Beavan's Reports. 

Bing Biugham's Reports. 

Bing. N. C Bingham's New Cases. 

Bl. H Blackstone's (Henry) Reports. 

Bl. W Blackstone's (William) Reports. 

Blac. Com Blackstone's Commentaries. 

Bli Bligh's Reports. 

Bli. N. S Bligh's Reports, New Series. 

Bos. & Pul Bosanquet and Puller's Reports. 

Bro. Abr Brooke's Abridgment. 

Bro. C. C Browne's Chancery Reports. 

Brod. & B Broderip and Bingham's Reports. 

Burr Burrow's Reports. 

C. B Common Bench Reports, or Manning, Granger and 

Scott's Reports. 

C. B., N. S Common Bench Reports, New Series. 

C. C Cases in Chancery or Crown Cases. 

C. & E Cababe and Ellis's Reports. 

C. & J Crompton and Jervis's Reports. 

C. & K Carrington and Kirwan's Reports. 

C. & M Crompton and Meeson's Reports. 

C. M. & R Crompton, Meeson and Roscoe's Reports. 

C. P. D Law Reports, Common Pleas Division. 

C. & P Carrington and Payne's Reports. 

C. of S. Ca., 4th Series.. Court of Session Cases, 4th Ser. (by Rettie and others). 

Camp Campbell's Reports. 

Car. & M Carrington and Marshman's Reports. 

Ch. (preceded by [1S91], Law Reports, Chancery Division. 

[1892], &c. as the year 

may be) . 
Ch. D Law Reports, Chancery Division. 



xlvi TABLE OF ABBREVIATIONS. 



Chit Chitty's Reports. 

Chit. Arch Chitty's Archbold's Practice. 

Chit. Forms Chitty's Forms. 

CI. & F Clark and Finnelly's Reports. 

Co Coke's Reports. 

Co. Litt Coke on Littleton. 

Coll. C. R Collyer's Chancery Reports. 

Com. Dig Comyns's Digest. 

Coop. temp. Brough. . . Cooper's (C. P.) Cases time of Brougham. 

Cowp Cowper's Reports. 

Cro. Eliz Croke's Reports, time of Elizabeth. 

Cro. Car Croke's Reports, time of Charles. 

D. & L Dowling and Lowndes' Practice Cases. 

D. & M Davison and Merivale's Reports. 

D. & R Dowling and Ryland's Reports. 

Dalt. Sh Dalton on Sheriffs. 

De G. & J De Gex and Jones's Reports. 

De G. M. & G De Gex, Macnaghten and Cordon's Reports 

Doug Douglas' Reports. 

Dow & CI Dow and Clark's Cases. 

Dowl. P. C. or D. P. C. Dowling's Practice Reports. 

Dowl. N. S. or D. N. S. Dowling's Practice Reports, New Series. 

Drew Drewry's Reports. 

Durn. & E. or T. R. . . Durnford and. East, or Term Reports. 
Dy Dyer's Reports. 

East East's Reports. 

El. & E Ellis and Ellis's Reports. 

Eq. Cas. Abr Equity Cases Abridged. 

Esp Espinasse's Reports. 

Ex Welsby, Hurlstone and Gordon's Reports. 

Ex. D Law Reports, Exchequer Division. 

E. & F Foster and Finlason's Reports. 

Eor Forrest's Reports. 

G-. & D Gale and Davison's Reports. 

Gale Gale's Exchequer Reports. 

Gifr Giffard's Reports. 

Gilb. Ex Gilbert's Executions. 

H. & C Hurlstone and Coltman's Reports. 

H. & N , Hurlstone and Norman's Reports. 

H. & W Harrison and "Wollaston's Reports. 

H. L. Cas Clark's House of Lords' Cases. 

Hard Hardres' Reports. 

Hare Hare's Reports. 

Hodo- Hodges' Reports. 

Holt° Holt's (Sir John) Reports. 

Ir. C. L Irish Common Law Reports. 

Ir. Ch Irish Chancery Reports. 

j. p Justice of the Peace. 

J ac Jacob's Reports. 

Jon Jones' Reports (Ireland) . 

Jones, W Jones' (Sir William) Reports. 

J ur Jurist Reports. 

Jur. N. S Jurist, New Series. 

Kay & J Kay and Johnson's Reports. 

Keb Keble's Reports. 



TABLE OF ABBREVIATIONS. v l„-- 

Al\ H 

L. J. "c k 'p f aw Journal, Bankrupt, r. 

L. J. Ch. t « W T 0Uma }' £ ommon P ^as. 

L J Ex t J° uruil1 . Chancery. 

Li J.',' M C T J T ° urna ]> Exchequer. 

L. J. Q.' B YZ T° Uma ' Magistrates' Cases. 

L. J. ? c ^ aW J° urn!l1 . Q^en'a Bench. 

L. Ml & P T?l5 >un £ 1 ' Privy Council - 

L. R., o C Lowndes, Maxwell, and Pollock's Reoorts 

l. r. o p.:: tz p: por f ts S rown c — ^^ p 

L.R. Ch Law Reports, Common Pl,,, s . 

L. R. En r™ S Cp0rts ' Chancery. 

L R £ v ^ W * C P°**, Equity. 

L." R.' HL t ^ ?°I Jorts ' Exchequer. 

L. R. I. ^ aw geports, House of Lords. 

L R PC t aw £ e Ports (Ireland). 

L. T.'. ^ aw 5 e Ports, Privy Council. 

Latch.:::; rtrJT 8 - 

Leg. O r i "Reports- 
Leon.. Eegal Observer. 

Ld. Ken Leonard's Reports. 

Ld. Raym." ffTO 8 Ee port S . 

Lind. t ?, Ra y m ond's Reports. 

-LdndJey on Companies. 

M. B 

M. 

M 



■' T>\ & De G." ' : fc! 1 '! Rankru Ptey Reports. 



& G. S aSrU ' D ? acon and De Gex'.s Reports 

M. & Jtf. : ff a " nulg ^^ ran » er ' s Reports 1 

M. & R S 7 aud Malki "'s Reports. 

m. & s. . .:::::::::::• fere js^ 1 "*- ^pon*. 



M.' & Scott ' .' M a n U i e aDd felwyn's Reports. 

M.&W ll 00Te and , Scott s Reports. 

Macq. H. L Cas T\fc S ° n En , d ^Isby's Reports. 

M<cii. & £. . as SfBfS" 8 rt* A PP eaIs - 

Marsh M»2l £ ^ d YoUn °' 8 Reports. 

Meo- Marshall's Reports. 

Mod.' Rep ' 'I::;:::- Jffft "»** Companies Acts. 

Moo. p. C C ™ e ? Reports. 

Moo & R 'or M *»■ k ^°°^ e S Pnv F Council Cases 
Moore (G P ) M - & R ° b - £?° od ? a * d Robinson's Reports. 
V ; Moore's Common Pleas Reports. 

n! & ¥:. . ; ; ; S; e and Manning's Reports. 

N. R. . NeMlJe and Perry's Reports. 

New Reports, by Bosanquet and Puller. 

P.' wL' ' .' : ; ; g™*' "£* P a ™°*'s Reports. 

Pal. £eere Williams' Reports. 

p ar Palmer's Reports. 

p ea Barker's Reports. 

Ph' Peake's Reports. 

Price ". Phillip's Reports. 

i rice's Reports. 



h&g &ttEiSg2gi23r* *-« . 



Q. B. 
Q. B. 

[1891 

Q a B tl D y ' ;,rmaybe) ''- 

Law Reports, Queen's Bench Division. 

R. & M. t, 

R. R. . ***** an £ Moody's Reports. 

Rail. Cas Reused Reports. 

Railway Cases by Nicholl and others 



xlviii TABLE OF ABBREVIATIONS. 



Rep Coke's Reports. 

Roll. Abr Rolle's. Abridgment. 

Roll. R Rolle's Reports. 

S. M. L Smith's Leading Cases. 

Salk Salkeld's Reports. 

Saund Saunders's Reports. 

Scott Scott's Reports. 

Sco. N. R Scott's New Reports. 

Show Shower's Reports. 

Sid Siderfin's Reports. 

Sol. Jour Solicitors' Journal. 

Sta Starkie's Reports. 

Stra Strange's Reports. 

Swans Swanston's Reports. 

T. L. R Times Law Reports. 

T. R Term Reports, Dumford and East . 

T. & R Turner and Russell's Reports. 

Taunt Taunton's Reports. 

Tyr Tyrwhitt's Reports. 

Vern Vernon's Reports. 

Ves. jun Vesey's, jun., Reports. 

Ves. or Ves. sen Vesey's, sen., Reports. 

W. N Weekly Notes. 

W. R Weekly Reporter. 

Wats. Sh Watson on Sheriffs. 

West , West on Extent. 

Wightw Wightwicke's Reports. 

Will. Woll. & H Willmore, Wollaston, and Hodges' Reports. 

Wils Wilson's Reports. 

Y. & C Younge and Collyer's Reports. 

Y. & J Younge and Jervis's Reports. 



ADDENDA ET CORRIGENDA. 

Page 52, line 4, for "receipt " read " service." 

Page 73, last line, after " p. 291," read " et *ey." 

Page 75, line 8, after " 177," read "and see this case generally, as also Roger 
v. Kenny, cited ante, p. 73, in relation to Lien.'''' 

Page 84, line 31, after " rr. 8—15, R. S. C. 1883" read "such section and 
8 — 14 of such Rules are set outpost, p. 365." 

Page 312, line 27, add " But see ante, p. 310." 

Page 319, line 4, add afterword "effect" "See, however, Thomas v. Kelly, 
cited post, p. 325." 

Page 3G1, margin, for " 50/." read " 20/." 

Page 379, line 30, after "189," read "See, however, on this point ante, 
pp. 287, 288." 

Page 389, line 9, add after cited case of Hyland v. Lennox " The above 
statement with regard to the execution creditor's liability for costs must, however, 
lie taken subject to the provisions of Ord. LVII. rr. 1G and 17, ante, pp. 374, 
375, 388." 

Page 518, line 21, for " 1 Q. B. D." read " [1892] I Q. B." 



Page 57 et seq. "Indorsements on the Writ of Execution." 

Page 81, " Death of Parties:' 

These portions to be read subject to the alteration of the 
law effected by the Sale of Goods Act, 1893 (which Act was 
not passed until 20th February, 1894, and, therefore, after this 
Wm-k went to press). 



SHERIFF LAW. 



Chapter I. 

APPOINTMENT OF SHERIFF AND HIS OFFICERS. 

PAGE 

Appointment and Qualification of Sheriff 1 

Uhder-Sheriff' 6 

Precedence ---------9 

Dress - - - - - - - - - -11 

Sheriff's London Deputy 11 

Bailiffs - - - 12 

Franchises, 8fc. --.-----18 



Appointment and Qualification of Sheriff. 
By sect. 3 of the Sheriffs Act, 1887 (50 & 51 Vict. c. 55), Annual 
" (1.) A sheriff shall be annually appointed for every county (a). f Bheriff and 

" (2.) Save as provided by this Act, a sheriff shall not hold jjjjgf 0011 of 
office for more than one year, and a grant after the passing of 
this Act of the office for more than one year shall be void. 

" (3.) The office of sheriff or of any officer of a sheriff shall 
not become void by reason of the demise of the Crown, or in 
Cornwall of the Duchy of Cornwall, but the person holding the 
office shall, unless sooner removed or superseded, continue in 
office for the remainder of his term in like manner as if such 
demise had not taken place." 

By sect. 4, " A person shall not be appointed sheriff nor bailiff Qualification 
of a franchise except he have sufficient land within Iris county 
or bailiwick to answer the Queen and her people " (b). 



(a) The expression "county" means a comity at lai'go, and does not 
include a county of a city or a county of a town. 

(b) The following persons are exempt from serving as sheriff, viz. :— 
Officers of customs (39 & 40 Vict. c. 36, s. 9), commissioners, collectors, 

M. B 



APPOINTMENT OF SHERIFF AND HIS OFFICERS. 



Same person 
not to be 
chosen twice 
in three years. 



Nomination 
and appoint- 
ment of 
sheriffs. 



"Pricking" 
of sheriff to 
he notified in 
London Gazette 
and warrant 
transmitted 
to person 
"pricked." 



Duplicate of 
warrant to he 
transmitted to 
clerk <if peace 
of county. 



By sect. 5, " A person who lias been sheriff of a county for a 
whole year shall not within three years next ensuing be ap- 
pointed sheriff of that county unless there is no other person 
in the county qualified to fill the office." 

By sect. 6, " (1.) On the twelfth day of November in every 
year (or if that day fall on a Sunday then on the ensuing 
Monday) persons fit to serve as sheriffs shall be nominated for 
every county at the Eoyal Courts of Justice in the manner that 
has been heretofore used and observed (b), and shall be so nomi- 
nated by the following great officers, namely, the Lord High 
Chancellor of Great Britain, the Lord High Treasurer, or if 
there is no Lord High Treasurer, the Chancellor of the Exche- 
quer, the Lord President and others of her Majesty's Most 
Honourable Privy Council, and the Lord Chief Justice of 
England, or any two or more of such great officers, taking to 
them the judges of her Majesty's High Court of Justice, or any 
two or more of them. 

" (2.) Whenever her Majesty has duly pricked a person to be 
sheriff of a county, the same shall be forthwith notified in the 
London Gazette ; and a warrant in the form in the First Sche- 
dule to this Act shall be forthwith made out and signed by the 
Clerk of the Privy Council and transmitted by him to the person 
so pricked ; and the appointment of sheriff so made shall be of 
the same effect as if made by patent under the Great Seal ; and 
every sheriff so appointed upon making the declaration of office 
in this Act mentioned shall by virtue of this Act only and 
without payment of any fee have and exercise all powers, privi- 
leges, and authorities usually exercised and enjoyed by sheriffs 
of counties in England. 

" (3.) A duplicate of the said warrant shall within ten days 
after the date thereof be transmitted by the Clerk of the Privy 
Council to the clerk of the peace of the county for which such 



officers or persons employed under the authority of the Commissioners in 
relation to Inland Revenue (53 & 54 Vict. c. 21, Inland Revenue Regula- 
tion Act, 1890, s. 8, and see "definitions," s. 39), and commissioned 
officers of her Majesty's regular forces on full pay (44 & 45 Vict. c. 58, 
s. 14G). The liability of officers of the auxiliary forces to be nominated 
to the office of sheriff is not affected by their battalions or corps being 
8 i mbled for annual training at the time of nomination (44 & 45 Vict. 
c. 58, s. 181, sub-s. 5). Bui a sheriff being a miiitia officer shall during 
embodiment be discharged from personally performing the office of sheriff, 
and. the under-sheriff shall be answerable for its execution in the high 
she] Lff's name (15 & 48 Vict. c. 49, s. 40). 
(b) See last note. 



APPOINTMENT AND QUALIFICATION OF SHERIFF. 3 

person is appointed sheriff and shall be enrolled and kept by 
the said clerk of the peace without fee. 

" (4.) Nothing in this section shall apply to the counties of 
Cornwall, Lancaster, or Middlesex." 

By sect. 32, " One sheriff may continue as heretofore to be Application 
appointed for the counties of Cambridge and Huntingdon as if bridge and 
they were one county." Huntingdon. 

The sheriffs of the City of London were formerly sheriffs of Tne sheriffs 
London and the sheriff of Middlesex. For the City they were the sheriff of 
two sheriffs ; for Middlesex they acted as one, dividing the Ml(ialc ^' x - 
individual appointment between them, and putting their plural 
signature to documents written in the singular, as by the sheriff 
of Middlesex. But by the operation of the Local Government 
Act, 1888, the Crown appoints the sheriff of Middlesex as well 
as for the county of London, and the authority of the sheriffs 
of London is restricted to the City. 

The sheriffs of the City of London are elected annually by 
such of the freemen of the City of London as are liverymen of 
the various companies. The election takes place on the 24th of 
June. The persons in nomination are as follows, and are put 
in nomination in the following order : — (1) All aldermen who 
have not served the office ; (2) Persons nominated by the Lord 
Mayor between the 14th of March and 14th of May, such 
persons to be in nomination for five years (the Lord Mayor 
must not nominate more than three freemen, and any persons, so 
nominated, may be discharged from nomination on payment 
within a fortnight to the Chamberlain of 200/.) ; and (3) Any 
person free of the city, nominated by two liverymen (such 
person to be discharged from election or nomination on making 
oath before the Lord Mayor and Court of Aldermen that he 
does not possess real and personal estate separately or together 
of the value of 30,000/.). In the event of a contest the poll is 
taken on the third day under the City of London Ballot Act, 
1887, the Secondary (c) being the returning officer. 

By 45 & 46 Vict. c. 50 (Municipal Corporations Act), s. 170, Appointment 
"(1.) The council of every borough being a county of itself, counties of* 
and of the city of Oxford, shall on the ninth of November in every ,i,i ' s aiul 
year appoint a fit person to execute the office of sheriff. towns. 

" (2.) The appointment shall be made at the quarterly meeting 
of the council immediately after the election of the mayor. 

(c) As to tho office of Secondary, see })ost, p. 7, under title " Under- 
sheriff." 

b2 



APPOINTMENT OF SHERIFF AND HIS OFFICERS. 



cities and 
counties of 
towns. 



" (3.) The sheriff shall hold office until the appointment of his 
successor. 

" (4.) He shall have the same duties and powers as the sheriff 
or the person filling the office of sheriff in the respective borough 
or city would have had if this Act had not been passed." 
Application of By sect. 36 of the Sheriffs Act, 1887, " (1.) The sheriff of a 
of counties of county of a city or a county of a town other than London shall 
continue to be appointed in manner provided by the Municipal 
Corporations Act, 1882, and shall hold office for the term in 
that Act mentioned, and in the event of the death or incapacity 
of a sheriff so appointed, the council of the said city or town 
shall forthwith appoint another fit person to execute the office ; 

" (2.) A person may be appointed to be such sheriff if he 
have sufficient property, whether of land or personalty, to 
answer the Queen and her people ; 

" (3.) Every such sheriff shall perform the same duties as 
heretofore, and may receive such fees and remuneration out of 
the borough fund or other accustomed fund as have heretofore 
been accustomed ; 

" (4.) Save as aforesaid this Act shall apply to a sheriff of a 
county of a city or a county of a town in like manner, as nearly 
as may be, as it applies to the sheriff of a county, and any juris- 
diction by this Act vested in the justices in general or quarter 
sessions may be exercised, so far as regards constables, by the 
council, and so far as regards other matters by the recorder of 
the said city or town." 

By sect. 7 of same Act, "(1.) Every sheriff shall, before he 
enters on the execution of his office, make and subscribe a 
declaration in the form in the Second Schedule to this Act or 
to the like effect before one of the judges of her Majesty's High 
Court of Justice or before a justice of the peace for the county 
of which he is sheriff. 

" (2.) Every sheriff shall continue to be and act as sheriff until 
his successor has made the said declaration and entered upon 
office." 

Declaration of Sheriff and Under- Sheriff. 

I, A. B., of , in the county of do solemnly declare 

that I will well and truly serve the Queen's Majesty (d) [and 
also his Royal Highness Duke of Cornwall] in the office 

of ] s 1G j n ' t • w ! of the count y of and promote her 

( under-sJierin ) J L 



Declaration 
of office. 



(d) The words within brackets to bo added in case of the Duchy of 
Cornwall. 



APPOINTMENT AND QUALIFICATION OF SHERIFF. 

Majesty's (e) [and his Royal Highness's] profit in all things that 
belong to my office as far as I legally can or may; I will truly 
preserve the Queen's rights («) [and the rights of his Royal High- 
ness] and all that belongeth to the Crown (e) [or Duchy of Corn- 
wall] ; I will not assent to decrease, lessen, or conceal the rights of 
the Queen or of her franchises (e) [or the rights of his Royal High- 
ness, or of his franchises] ; and whenever I shall have knowledge 
that the rights of the Crown (e) [or Duchy] are concealed or with- 
drawn in any matter or thing I will do my utmost to make them be 
restored to the Crown (e) [or Duchy] again ; and if I may not do it 
myself I will inform the Queen (e) [or his Royal Highness] or some 
of her Majesty's judges thereof ; I will not respite or delay to levy 
the Queen's debts for any gift promise reward or favour where I 
may raise the same without great grievance to the debtors ; I will 
do right as well to poor as to rich in all things belonging to my 
office ; I will do no wrong to any man for any gift reward or 
promise nor for favour or hatred ; I will disturb no man's right, 
and will truly and faithfully acquit at the Exchequer all those of 
whom I shall receive any debts or sums of money belonging to the 
Crown (e) [or Duchy] ; I will take nothing whereby the Queen (e) 
[or his Royal Highness] may lose or whereby her(e) [or his] right 
may be disturbed injured or delayed ; I will truly return and 
truly serve all the Queen's writs according to the best of my skill 
and knowledge ; [I will take no bailiffs into my service but such 
as I Avill answer for ;] (f) I will truly set and return reasonable 
and due issues of them that be within my bailiwick according to 
their estate and circumstances, and make due pannels of persons 
able and sufficient and not suspected or procured as is appointed 
by the statutes of this realm ; [I have not sold or let to farm, nor 
contracted for, nor have I granted or promised for reward or 
benefit, nor will I sell or let to farm nor contract for or grant for 
reward or benefit by myself or any other person for me or for my use 
directly or indirectly my sheriffwick or any bailiwick thereof or any 
office belonging thereunto or the profits of the same to any person 
or persons whatsoever ;] (g) I will truly and diligently execute the 
good laws and statutes of this realm, and in all things well and 
truly behave myself in rny office for the honour of the Queen (e) 
[and his Royal Highness] and the good of her subjects, and 
discharge the same according to the best of my skill and power. 



(e) The words within brackets to bo added in case of the Duchy of 
Cornwall. 

(/') In the case of under-sheriffs, omit the words between brackets. 

(</) In the case of under-sheriffs, omit the words between the brackets, 
and say: ["I have not bought purchased or taken to farm or contracted 
for nor have I promised or given any consideration nor will I buy pur- 
chase or take to farm or contract for promise or give any consideration 
whatsoever by myself or any other person for me or for my use directly 
or indirectly to any person whomsoever for the office of under-sheriff of 
the county of which I am now to enter upon and enjoy nor for 

the profits of the same nor for any bailiwick thereof or any other place 
or office belonging thereunto : I have not sold nor contracted tor or let to 
farm, nor have I -ranted or promised for reward or benefit by myself or 
any other person for me or for my use directly or indirectly any baili- 
wick thereof or any other place or office belonging thereunto"]. 



APPOINTMENT OF SHERIFF AND HIS OFFICERS. 



Filing and 
exemption 
from duty of 
declaration 
of office. 



Fee of clerk 
of peace for 
filing declara' 
tion. 



As to oath of 
office to be 
taken by the 
sheriffs of 
the City of 
London. 



By sect, 30 of the Sheriffs Act, 1887, " (1.) Every declaration 
of office made under this Act by a sheriff of a county or his 
under-sheriff shall be exempt from stamp duty and be trans- 
mitted to the clerk of the peace of the county, and be by him 
filed among the records of his office. 

" (2.) For filing such declaration the clerk of the peace shall 
be entitled to demand and receive from such sheriff or under- 
sheriff such fee as may be from time to time fixed in pursuance 
of the enactments relating to fees of clerks of the peace, and 
until any fee is so fixed a fee of five shillings." 

Referring to the sheriffs of the City of London, every person 
duly elected sheriff must, either upon the day of election or at 
any time between that day and the 14th of September, and in 
the same year, appear before the Court of Aldermen, and shall 
then and there become bound to the City Chamberlain in the 
penal sum of 1,000/. that he will appear in the public assembly 
in the Guildhall, at the vigil of St. Michael Archangel, between 
the hours of 12 and 3 o'clock, and take the oath of office. In the 
event of any person so bound failing to appear, he is fined, if an 
alderman, 600/., if not an alderman, 400/. It is the duty of the 
Secondary to attend the Queen's Remembrancer, with the City 
Solicitor, on the receipts of warrants of approval of the new 
sheriffs by her Majesty. 



Obligation of 
sheriff to ap- 
point under- 
sheriff. 



Fee of clerk 
of peace for 
filing dupli- 
cate of ap- 
pointment. 



Declaration to 
be made by 
under-sheriff. 



Under-Sheriff. 

By sect. 23 of the Sheriffs Act, 1887 (50 & 51 Vict, 
c. 55), " (1.) Every sheriff shall within one month after the 
notification of his appointment in the London Gazette by writ- 
ing under his hand ajrpoint some fit person to be his under- 
sheriff, and shall transmit a duplicate of such written appoint- 
ment to the clerk of the peace for the county, which shall be 
filed by him among the records of his office. 

" (2.) For filing such duplicate the clerk of the peace shall 
be entitled to demand and receive from the under-sheriff such 
fee as may be from time to time fixed in pursuance of the enact- 
ments relating to fees of clerks of the peace, and until any fee 
is so fixed a fee of five shillings. 

" (3.) Every under-sheriff shall before he enters on the 
execution of his office make a declaration in the form in the 



UNDER-SHERIFF. ' 

Second Schedule to this Act (/) or to the like effect before one 
of the judges of Her Majesty's High Court of Justice, or he- 
fore a justice of the peace for the county for which such under- 
sheriff is appointed." 

As to filing and exemption from duty of such declaration, see 
sect. 30, ante, p. 6. 

Form of Appointment. 

To all to whom these presents shall come greeting : "Whereas I 
of in the county of have been appointed during 

Her Majesty's pleasure sheriff of the said county by a warrant of 
appointment bearing date the dayof a.d. Now know 

ye that I have nominated constituted and appointed and by these 
presents do nominate constitute and appoint of in the 

said county gentleman my under-sheriff of and for the said county 
and do depute and authorize him to act and to execute for me and 
in my stead all things to the said office of sheriff in anywise 
appertaining or belonging. 

Dated this day of a.d. 

With regard, however, to the shrievalty of the City of London, Secondary of 
the office of the Secondary of the City of London corresponds London. ° 
with that of an ordinary under-sheriff, and as the absolute 
estate and interest of sheriffs of the City of London belong to 
the Corporation, and as it is the only body which discharges the 
office of sheriffs of the City of London, the Corporation, to 
guard against loss, appoint the subordinate officers, including 
therefore the Secondary, or under-sheriff. The office of Secon- 
dary is accordingly held direct from the Corporation. In the 
City Eecords of the third year of Edward II., 1309—10, 
Liber 2, fol. 1, will be found the oaths of the Secondary. 

The gentlemen known as under-sheriffs, who are appointed 
by the sheriffs of the City of London, on taking office and 
nominated by them, have no legal status in the City at all, as 
the Corporation from the earliest times have provided for the 
discharge of the duties of the shrievalty. The actual duties of 
the under-sheriffs, so appointed by the sheriffs, consist of attend- 
ing the sheriff on all state occasions, and also keeping order at 
the Central Criminal Court. 

In the case of ordinary under-sheriffs, it is customary for the Custom for 
under-sheriff to give his sheriff security by a bond or covenant t() o-h-^ sheriff 

for the latter's indemnification against any loss through default security by 

. . ,, bond, 

on the part of the under-sheriff or his servants, and generally 

(r) Ante, p. 4. 



APPOINTMENT OF SHEEIFF AND HIS OFFICERS. 

for the under-sheriff's faithful discharge of the various duties of 
his office. 

Form of Bond. 

This indenture made the day of 18 between A. B. 

of in the county of of the first part and C. D. of 

in the county of of the other part : "Whereas the 

said A. B. by her Majesty's warrant of appointment bearing date 
the day of 18 has been appointed sheriff of the said 

county during- pleasure and hath taken upon himself the duties 
thereof : And whereas also at the instance of the said C. D. the 
said C. D. hath been appointed by the said A. B. to be under- 
sheriff of the said county. In consideration whereof and in con- 
sideration of the covenants hereinafter mentioned on the part of the 
said A. B., the said C. D. for himself his heirs executors and ad- 
ministrators doth hereby covenant promise and agree to and with 
the said A. B. his executors and administrators that he the said 
C. D. shall and will well and sufficiently perform the office of under- 
sheriff ; and shall and will save harmless and keep indemnified 
the said sheriff his heirs executors and administrators of and from 
all manner of actions causes of action suits fines and amerciaments 
contempts and forfeitures and all other charges and incumbrances 
whatsoever which shall or may happen to be assessed or imposed 
upon the said A. B. as sheriff by reason of the non-feasance 
misfeasance or malfeasance of him the said C. D. or for or by 
reason of any other cause or thing whatsoever that should or ought 
to be done by the said under-sheriff or by the clerks bailiffs or 
servants to be employed concerning the said office. And further 
that the said under-sheriff shall from time to time give due notice 
to the said sheriff of such personal attendance as shall be requisite 
to be made by him; and shall attend on and assist him thereat and 
be aiding and assisting in raising and levying such force within the 
said county as the sheriff shall be enjoined to raise; and cause to be 
executed all such persons as shall be sentenced to death according 
to his or her sentence and well and faithfully do execute and per- 
form all and every act matter and thing belonging to the said office 
of under-sheriff. And the said A. B. doth hereby for himself his 
heirs executors and administrators covenant promise and agree to 
and with the said CD. his executors and administrators in manner 
following : that is to say, that the bonds or obligations to be entered 
into or given to the said sheriff by his bailiffs shall be considered 
as well for the indemnity of the said under-sheriff as of the said 
sheriff himself. And that the said under-sheriff performing the 
aforesaid covenants shall have and enjoy the said office of under- 
sheriff during the shrievalty of the said A. B. and keep by himself 
or deputy the courts by law established in the said county and have 
and take all lawful fees dues profits and emoluments whatsoever 
belonging to the said office of sheriff. In witness whereof the said 
parties to these presents have hereunto set their hands and seals on 
the day and year first above written. 

Signed sealed and delivered by the said 

A. B. in the presence of A. B. (l.s.) 

Signed sealed and delivered by the said 

C. D. in the presence of C. D. (l.s.) 



UNDER-SHERIFF. V 

In the case of the Secondary of the City of London, as above A.s to the 
intimated, that office is held direct from the Corporation, who the Corpora- 
are liable to the Crown for any misconduct on the part of the tionof London 
sheriffs' Secondary and sheriffs' officers. The sheriffs take no Secondary, 
benefits from their office, and they and the Corporation are 
indemnified against loss by the Secondary, who gives a bond to 
the Corporation himself in an unlimited amount, and, in addi- 
tion thereto, two sureties jointly and severally bound in the 
sum of 2,500/. 

By sect, 25 of the Sheriffs Act, 1887, " (1.) Where the sheriff Execution 

of a county dies before the expiration of his year of office or under-sheriff 

before he is lawfully superseded, the under-sheriff by him an- on death or 
* *■ ■/ j suspension 

pointed shall nevertheless continue in office and shall until of sheriff, 
another sheriff be appointed for the said county and has made 
the declaration of office, execute the office of sheriff, in the 
name of the deceased sheriff, and be answerable for the execu- 
tion of the said office as the deceased sheriff would by law have 
been if living ; and the security given to the sheriff so deceased 
by the said under-sheriff and his pledges shall remain and be a 
security to the Crown and to all persons whomsoever for such 
under-sheriff's due execution of the offices of sheriff and under- 
sheriff. 

" (2.) "When it becomes the duty of an under-sheriff to act 
as sheriff under the provisions of this section he may by writing 
under his hand appoint a deputy." 

The under-sheriff may practise as a solicitor during his term 
of office. 6 & 7 Vict. c. 73, Sch. I., Part I. 

And see statutory prohibition of sale of office of under-sheriff 
per sect. 27 of the Sheriffs Act, 1887, under title " Liabilities 
and Rights of Sheriff, and Remedies against Sheriff," post, 
p. 498. 



Precedence. 

" It may be interesting to refer to the social status of the 
high sheriff. Ancient learned text-writers, including Black- 
stone, have asserted not only that the sheriff, ' as keeper of the 
Queen's peace, both by common law and special commission, is 
the first man in the county,' but also that he is ' superior in rank 
to any nobleman therein.' From this it has frequently been 
presumed that the high sheriff gained precedence within his 
own county over dukes and all ranks of the peerage, including 



10 APPOINTMENT OF SHERIFF AND HIS OFFICERS. 

the lord lieutenant of the county. General favour was accre- 
dited for such a view of the sheriff's precedence by the late 
Mr. Disraeli, afterwards Earl of Beaconsfield, having stated in 
his book, ' Lothair,' ' There is no doubt that, in the county, the 
high sheriff takes precedence of everyone, even the lord lieu- 
tenant' (vol. ii. p. 78). But with all deference to such an 
authority as the late Prime Minister, it is an established fact, 
recognized by the late Garter King at Arms, Sir Charles Young, 
that the lord lieutenant, as locum tenens of the Sovereign, has 
precedence of everyone in the county, and that the high sheriff 
does not, under any circumstances, precede the lord lieutenant, 
nor, socially, take precedence of any peer. The fact that the 
sheriff presides at a county meeting involves no question of pre- 
cedence, because the sheriff having convened the freeholders of 
his county, who owe suit and service at his county court, 
necessarily presides over them. Sir Bernard Burke also says 
(' Reminiscences,' 1884) : ' Neither the lord lieutenant of a 
county nor the high sheriff is assigned any place in the scale of 
precedence, and consequently neither derives any social prece- 
dence from the office he holds. A particular place on the scale 
of precedence is an honour derived from the Crown or Parliament, 
or confirmed by authorized usage, and can no more be interfered 
with than the right to the dignity of a peerage which a Royal 
Patent has conferred. Between the two, the lord lieutenant of 
a county and the high sheriff, the higher local position apper- 
tains, I think, to the lord lieutenant of a county.' 

" The meaning of the quotation from Blackstone depends 
upon the construction of the word 'nobleman.' The view 
favouring the sheriff's precedence was derived from the dictum 
of Chief Justice Coke, in the case of Chune v. Pyot (Sheriff of 
London), Rolle's 'Report,' i. 237, in which the Chief Justice 
said : ' Anciently it was the earls who exercised this office of 
sheriff, and then they held the office as long as they wished ; 
but afterwards, when estates for life and of inheritance were 
granted, shrievalties were granted, and sheriffs have the same 
power the ancient earls had, of which dignity there were some 
relics to that day, for instance, the ' White Wand ' : and the 
patent of the grant of this office is in these words, Commisimus 
vobis custodiam comitatus; and the sheriff takes precedence of 
every nobleman during office (il prist le lieu de chescun noble home 
durant Voffice).' But the truth is, that the expression noble home, 
when used by the Chief Justice in James I.'s reign (161 G), 



PRECEDENCE DRESS, ETC. 11 

implied nothing more than that the sheriff was the head of the 
commonalty of the county ; because, at that time, the term 
1 nobleman ' was not confined to the peerage, but applied to 
knights, and gentlemen below the peerage. This is proved by 
the following sentence in Camden's ' History of Elizabeth ' (3rd 
edition, page 29), under the date of 1559: ' Cuthbert Scot, of 
Chester, Richard Tate, of Worcester, and Thomas Gold well, of 
St. Asaph, voluntarily departed the land, and also certain nuns, 
as did likewise afterwards some noblemen; of whom those of 
better note were Henry Lord Morley, Sir Francis Inglefield, 
Sir Robert Peckham, Sir Thomas Shelley, and Sir John Grage.' 
And it is further proved by Coke's own inter pretat ion of the 
word 'nobleman' in his note (2nd ' Institute,' page 583), upon 
a passage in the statute 35 Edward I., in w r hich note Coke says : 
' Knights of the shire and other gentlemen of the House of 
Commons are included under these words aliorum nobilium ; for 
Nobilitas est duplex, superior et inferior. Superior belongeth to the 
lords of Parliament, and inferior to knights and gentlemen of 
name and blood, who are in this Act termed nobiles " (/>•). 



Dress. 

The proper dress for sheriffs is court dress (e.g., black velvet 
dress court suit, with knee breeches and silk stockings, or claret- 
coloured coat and trousers, the coat being of same shape as 
dress uniform of consuls and members of diplomatic corps, and 
the trousers having a gold stripe), or military or other uniform, 
with, in the case of a City sheriff, his robe of office. 

Under-sheriffs usually wear evening dress, or sometimes court 
dress. It would seem, however, that they have no particular 
dress as a matter of right, except, perhaps, as to court dress, 
when they have been presented at court. 



Sheriff's London Deputy. 
By sect. 24 of the Sheriffs Act, 1887, " Every sheriff shall Obligation 
appoint a sufficient deputy, who shall be resident or have an appoint de- 

(/.•) Extract, with permission, from the paper of Mr. Davenport, 
under-sheriff of Oxford, set out in Appendix to Report Erom Select 
Committee on High Sheriffs. 



12 



APPOINTMENT OF SHERIFF AND HIS OFFICERS. 



puty resident office within one mile from the Inner Temple Hall, for the 
receipt of writs, the granting of warrants thereon, the making 
of returns thereto, and the acceptance of all rules and orders to 
be made on or touching the execution of any process or writ to 
be directed to such sheriff." 

A delivery of a writ to a sheriff's deputy in London is a 
delivery to the sheriff. Woodland v. Fuller, 3 P. & D. 570 ; 11 
A. & E. 859. 

Appointment. 

to wit : sheriff of the county aforesaid to gentleman, 

greeting : I do hereby nominate constitute and appoint you to be 
my deputy for the receipt of writs granting warrants thereon 
making returns thereto and accepting of all rules and orders to be 
made on or touching the execution of any process or writ to be 
directed to me as sheriff as aforesaid. 

Given under the seal of my office this day of 18. 



Appointment 
of bailiffs, 
bound and 
special. 



Bailiffs. 

Bailiffs are also appointed by the sheriff for the purpose of 
executing writs directed to him. There appears, however, to be 
no special form for their appointment. They are the ordinary 
officers of the sheriff, and are bound by him in an obligation 
with sureties for the faithful discharge of their office ; so that, 
in the event of any loss arising from a breach of it, he is in- 
demnified. For the form of bond taken by the sheriff, see pod, 
p. 15. Bailiffs, it seems, are not officers of the Courts, and the 
Court has therefore refused to enforce their undertakings. Broun 
v. Gerard, 3 D. P. C. 217. It is, however, empowered to 
punish them for extortion and other offences under sect. 29 of 
the Sheriffs Act, 1887. A special bailiff is an officer appointed 
by the sheriff merely for the execution of a particular writ at 
the instance of the party suing out the writ, or his solicitor. An 
infant cannot be a bailiff or sheriff's officer, as such an office is 
one of responsibility and trust unfit to be performed by an 
infant. Cach-son v. Winter, 2 M. & R. 317. A deputy cannot 
be appointed by a sheriff's bailiff. Jachaon v. Hill, 10 A. & E. 
484. The warrant should be directed to the officer who is to 
execute the writ, and his name should be mentioned in it. It 
appears, however, that the warrant may be directed to the chief 
bailiff of a liberty and his deputies, as there may be known 
deputies within the franchise, and the sheriff may make them 



BAILIFFS. 13 

his bailiffs without further describing them. Jackson v. Hi//, 
10 A. & E. 486. 

A sheriff is liable for the acts of his officer acting under Sheriff's lia- 
colour of his warrant. Anon., Lofft. 81, and see Saunderson v. f ffi cer . 
Baker, 3 Wils. 309 ; 2 Bl. W. 832 ; 8. P., Ackworth v. Kempe, 
1 Dougl. 40 ; as also Smith v. Milks, 1 T. R. 480 ; and Gregory 
v. Cot/ere//, 5 El. & Bl. 571 ; 25 L. J. Q. B. 33 (/). Moreover, 
the sheriff is responsible for the acts of his officer, though not 
within the line of his duty, provided such acts are afterwards 
assented to or adopted by the sheriff. He is civilly liable for 
the misconduct of his officer in executing a writ, though the 
act done is contrary to the express terms of the writ. Smart v. 
Hntton, 8 A. & E. 568, n. ; 2 N. & M. 426 (m). 

Appointing a special bailiff, or giving special directions to a Special 
particular bailiff for the execution of a fi. fa., discharges the 
sheriff. Porter v. Finer, 1 Chit. R. 613 ; and see Pallister v. 
Pallister, 1 Chit. R. 614. Moreover, the general rule is that, 
where a plaintiff appoints a special bailiff, he cannot rule the 
sheriff to return a writ of fi. fa. See Harding v. Holder, 9 
D. P. C. 659 ; 3 Scott, N. R. 293 ; 2 M. & G. 914. 

Again, if the sheriff appoint a special bailiff at the plaintiff's 
request, the latter cannot rule the sheriff to return the writ. Do 
Moranda v. Dnnkin, 4 T. R. 119; but a mere request that a 
particular officer may be employed in the execution of process 
does not constitute that officer a special bailiff of the party. 
Corbet v. Brown, 6 D. P. C. 794 ; S. P., Balson v. Meggat, 4 
D. P. C. 557. 

"Where a plaintiff appoints his own bailiff to execute a writ 
in arrest process, the sheriff is relieved from all responsibility 



(/) It -will be borne in mind that in the case of the City of London, the 
Corporation are liable to the < frown for any misconduct on the part of the 
sheriffs' Secondary and sheriffs' officers. In this connection the Secondary 
must, however, (a) superintend and direct the duties to be performed 
by the serjeants-at-mace and their yeomen, and in particular use his 
utmost diligence to compel the serjeants-at-mace to perform their duty 
as strictly and promptly as possible relative to executions; and (b) afford 
every facility in his power to hear complaints against the serjeants-at- 
mace, and give to the aggrieved parties such redress as may be in his 
power and appears to him to be just and necessary ; whilst lie must 
record all sm-h complaints, with his den-ion thereon, so that they may, 
at any time, be referred to by the Court of Common Council. It is also 
the duty of the Secondary, on the part of the sheriffs, to see to proper 
security being given by the serjeants-at-mace. 

(///) See ante, p. 9, as to shrievalty of the City of London. 



14 APPOINTMENT OF SHERIFF AND HIS OFFICERS. 

until the party is arrested and delivered into the sheriff's actual 
custody. Ford v. Leche, 1 N. & P. 737 ; 6 A. & E. 699. 

And see, as to special bailiffs, Doe v. Tyre, 7 So. 704 ; 7 D. P .C. 
636 ; Alderson v. Davenport, and Perrin v. Davenport, 13 L. T. 
Ex. 352 ; Seal v. Hudson, 2 B. C. Eep. 55 ; 4 D. & L. 760 ; 
Jackson v. Hill, 10 A. & E. 477; 2 P. & D. 455; and 
Tait <y Co. v. Mitchell, 22 L. E. Ir. 327 ; under " Writ of Fi. 
Fa., Eeporting result, Eeturn, &c"; and see as to special bailiffs 
under title " Arrest." 

See also, under this head, Ramsay v. Eaton, 10 M. & W. 22. 
Declaration By sect. 26 of the Sheriffs Act, 1887, "Every deputy bailiff 

J s ' u and officer of a sheriff or under-sheriff, and every other person 
who has authority or takes upon himself to impanel or return 
any inquest, jury, or tales, or to intermeddle with the execution 
of writs issued by any court of record, shall before he does so 
make a declaration (which shall be exempt from stamp duty) 
in the form in the second schedule to this Act, or to the like 
effect, before any judge of the High Court of Justice or justice 
of the peace for the county or borough in which he exercises 
such authority." 



Form of Declaration for Bailiff, Deputy, or Officer of Sheriff. 

I, A. B., do hereby solemnly and sincerely declare that I will not 
use or exercise the office of corruptly during the time that I 

shall remain therein, neither shall nor will accept, receive, or take 
by any colour, means, or device whatsoever, or consent to the 
taking of any manner of fee or reward of any person or persons 
before the empannelling or returning of any inquest, jury, or tales 
in any court of record for the Queen or betwixt party and party 
above such fees as are allowed for the same by law, but will 
according to my power truly and indifferently with convenient 
speed empannel all juries and return all such writs touching the 
same as shall appertain to be done by my duty or office during the 
time that I shall remain in the said office. 



And see statutory prohibition of sale of office of bailiff, per 
sect. 27 of the Sheriffs Act, 1887, under title "Liabilities and 
Eights of Sheriff, and Eemedies against Sheriff," post, p. 498. 



[Form of Bond. 



BAILIFFS. 15 

Form of Bond. 

Enow all men by these presents, that we are 

held and firmly hound unto of in the 

of sheriff of the county of in the sum of 

of lawful money of Great Britain, to he paid to the said 
sheriff, or his certain attorney, executors, administrators or 
assigns, for which payment to he well and truly made, we 
bind ourselves, jointly and severally, our and each of our 
heirs, executors and administrators, and every of them, 
firmly hy these presents. Sealed with our seals. Dated 
this day of in the year of our Lord one thou- 

sand eight hundred and 

Whereas the above-named sheriff hath at the instance and request 
of the above-bounden and his sureties, and in consideration 

of the security hereby given, appointed the said to be and 

act as one of his bailiffs within the said county of and 

to be his assistant bailiff : The Condition of the above-written 
obligation therefore is such, that if the above bounden and 

his assistant, do and shall well and truly obey and execute 
all warrants, precepts, processes and commandments to him or 
them directed, or to be directed from the said sheriff, or his under- 
sheriff, deputy or agent, and shall and do make true and sufficient 
returns or answers to the same in writing, on or before the return 
days mentioned in such warrants, precepts or processes respec- 
tively, and pay, or cause to be paid, all moneys levied or received 
by him or them, by virtue of any such warrant, precept or process, 
to the said sheriff, under-sheriff or agent, on or before the return 
da}' of such warrants, precepts or processes respectively, and the 
true consideration or purchase-money mentioned in every assign- 
ment or bill of sale executed by the said sheriff, under-sheriff or 
agent, notwithstanding the acknowledgment of the receipt thereof 
by the said sheriff contained in any such bill of sale or assignment. 
And if the said bailiff and his assistant do not ask, levy or 
directly or indirectly receive any fee or fees due to the said sheriff 
or his under-sheriff, or to him the said bailiff, for the executing 
of any warrant, precept or other process whatever, but such as 
are warranted by the laws and customs of this kingdom. And if 
the said bailiff or his assistant do and shall levy and receive all 
and every sum and sums of money which shall be or become pay- 
able for the poundage and other fees for the execution and return 
of all and every process, warrant, precept and commandment, to 
him or them to be directed, and do, and shall pay, or cause to 
be paid to the said sheriff, or his under-sheriff or agent, all such 
sum and sums of mone} r , upon demand, with interest thereon from 
the time or times of such demand. And also if the said bailiff or 
his assistant shall and do make true return and inventory of all 
goods and chattels seized in execution, and before removal thei - eof 
pay the rent in arrear, not exceeding one year, and all taxes, 
which by law ought to be paid. And also if the said bailiff do 
and shall give his personal attendance on the said sheriff, under- 
sheriff or agent, during the continuance of all courts of assize, 
oyer and terminer, general and special gaol delivery, county courts, 
and courts of quarter session, and adjourned sessions, and also 
on the said courts respectively, during their respective sittings, 



16 APPOINTMENT OF SHERIFF AND HIS OFFICERS. 

and do not depart home, or absent himself therefrom, without the 
leave of such respective courts. And also if the said bailiff shall 
be attendant upon the said sheriff, under-sheriff and agents or 
deputies, in conveying of prisoners to and from the common gaol 
of the said county, or to or from any other place or prison, and 
attend the execution of all prisoners sentenced to death. And also 
if the said bailiff do and shall make true and immediate answer 
to all rules, orders and letters sent or written to him. And also if 
the said bailiff or his assistant shall take any distress upon any 
distringas, warrant or other process whatsoever, then if he or they 
do and shall make true and lawful returns of the same and safely 
keep the distress so taken, and give up the same to the said sheriff, 
his under-sheriff or agent, when required. And also if the said 
bailiff, his executors and administrators, do and shall at all times 
hereafter, save, defend, keep harmless and indemnified the said 
sheriff, his under-sheriff and agent, and his and their heirs, execu- 
tors and administrators, of, from, against or concerning the escape 
or escapes, rescue or rescues, of any prisoner or prisoners, or other 
person, which shall be in custody of the said bailiff, or his assistant 
or assistants, upon any warrant, precept or commandment from 
the said sheriff, his under-sheriff or agent, or his or their deputy 
or deputies. And also if the said bailiff and assistants shall and 
do observe and keep secret and undisclosed all matters and things 
concerning the said office of sheriff, which ought to be kept secret 
and undisclosed, and shall not directly or indirectly give or cause, 
or permit notice to be given to any defendant or other person 
against whom any warrant or process shall be directed to him 
the said bailiff, or his assistants, or do or cause, or permit any act 
to be done, or receive any money, gratuity, gift or promise, or 
omit or forbear to do any act whereby the execution of such process 
or warrant shall be in any wise defeated, delayed or impeded. 
And also if he the said bailiff and his assistants shall and do 
conduct safely to the common gaol of the said county all person 
and persons arrested, attached or taken by him at the expiration 
of twenty-four hours after he or they shall be so arrested, attached 
or taken, unless in the meantime a good and sufficient bail bond, 
or the amount of the debt, and 101. sterling to answer costs, be 
offered. And also if he the said bailiff, or his assistant or assistants, 
shall not, nor do let any person or persons in his or their lawful 
custody go at large ou writs of execution, or in cases where such 
person or persons shall not be bailable by law, but do and shall 
immediately safely conduct all and every person and persons so 
taken and in custody to the said common gaol. And do and shall 
in all cases, wherein any person or persons in his or their custody 
is entitled by law to be bailed, take a bail bond in the usual 
manner, with two good housekeepers as sureties, fully responsible 
for the payment of double the sum to be named in any warrant or 
warrants to be directed to such bailiff or his assistant, and also 
sufficient sureties in replevin, and do and shall fully indemnify 
the said sheriff and his under-sheriff and agent from all sums of 
money, loss or damage whatsoever, in respect of the taking of any 
such bail or replevin bond. And also do and shall send such bail 
bonds, or the debts and 101. to answer costs, as the case may be, 
and the replevin bonds, into tho sheriff's office on or before the 
day on which every such warrant, writ or process shall be return- 



BAILIFFS. 1? 

able, and shall and do comply in all things with the provisions of 
a certain Act of Parliament made in the thirty- second year of the 
reign of King George the Second, commonly called the Lords Act, 
and of all other Acts of Parliament now in force relating to the 
conduct and behaviour of bailiffs in the execution of their said 
office. And also if the said bailiff do and shall upon demand, well 
and truly pay unto the said sheriff, his under-sheriff or agent, all 
such sum and sums of money for which the said sheriff shall be 
fixed, or which he or his under-sheriff shall pay in any action or 
suit in which any warrant or precept shall be granted to the said 
bailiff or his assistant, together with the costs and expenses in 
respect thereof. And all costs and expenses incurred in defending 
the said sheriff, or in prosecuting any action or suit upon any bail 
bond, replevin bond or indemnity bond, taken by the said sheriff, 
or given as his security in any case where the said bailiff or his 
assistant shall have acted or assumed to act. And in prosecuting 
or opposing any motion in, or application to the court, touching or 
concerning any matter wherein the said bailiff or his assistant shall 
act as or assume to act as bailiff to the said sheriff, together with 
interest at 51. per centum per annum upon all sums paid from the 
time or respective times of the payment thereof. And also if the 
said bailiff and his assistants do and shall in all things well and 
truly execute the office of bailiff to the said sheriff. And lastly, 
if the said bailiff and his said sureties, some or one of them, 
their, some or one of their heirs, executors and administrators, 
do and shall from time to time, and at all times hereafter, save, 
defend, keep harmless and indemnified the said sheriff and his 
under-sheriff and agent, and his and their heirs, executors and 
administrators, of, from and against all manner of actions, suits, 
attachments, escapes, fines, penalties, amerciaments and other 
troubles, costs, charges, damages and expenses whatsoever, which 
may be commenced, prosecuted, imposed or set upon them or 
either of them, or which they or either of them may suffer, pay 
or be liable unto, for or by reason of the executing, not executing, 
returning or not returning, or improper returning of an} r writ, 
warrant, process, mandate or precept, occasioned by the act, 
information or default of the said bailiff or assistant, the not 
taking bail, the taking insufficient bail, the not bringing into 
court the body of any defendant arrested by him, or by reason of 
extortion, escape, or any other cause whatsoever, happening by 
the act or default of the said bailiff or assistant. Then the above- 
written obligation to be void and of no effect, but otherwise to be 
and remain in full force and virtue. 
Signed, sealed and delivered by 

As to officer's sureties, they are only liable for the due per- Officer's 
formance of the sheriff's duty. Cook v. Palmer, G B. & 0. 739 ; ^£g e how 
9 D. & R. *23. 

A sheriff cannot recover on an indemnity bond which lias 
been procured by his own officer's fraud. Raphael v. Goodman, 
3 N. & P. 547; S A. & E. 565. 

A sheriff's officer's surety cannot discharge his obligation Discharge 
within the year without the consent of the sheriff and other ^y surety. 

M. (' 



18 APPOINTMENT OF SHERIFF AND HIS OFFICERS. 

sureties. Martin v. Wemnan, Lofft, 225 ; and see, as to officer's 
sureties, Farebrother v. Wonky, 1 Tyr. 424 ; 1 C. & J. 549 ; 5 
C. & P. 102. 



Franchises, &c. 
Application By sect. 34 of the Sheriffs Act, 1887 (50 & 51 Vict. c. 55), 

franchises. " Where a lord of a franchise or any other person or body 
corporate has in any franchise, that is to say, any liberty, 
hundred, franchise, or other part of a county, the return or 
execution of writs, or any other of the privileges or duties of a 
sheriff, the following provisions shall apply to such lord, person, 
or body corporate (in this Act referred to as the bailiff of a 
franchise), that is to say : — 

" (a) The bailiff of a franchise shall either hold the office 
himself, or shall put in bailiffs having land in the 
bailiwick sufficient to answer the Queen and her 
people, and shall answer for such bailiffs ; and every 
such last-mentioned bailiff shall make the like decla- 
ration as an under-sheriff ; 
" (b) The sheriff of the county within which such franchise is 
situate shall within one month after a request made 
in that behalf by such lord appoint some sufficient 
deputy (>i), at such cost to be paid by the said lord, 
and to reside at such convenient place in or near the 
franchise, as may be appointed from time to time by 
the Lord High Chancellor of Great Britain and the 
Lord Chief Justice of England or one of them ; 
" (c) Every deputy so appointed shall reside at the said place, 
and, in the sheriff's name, shall receive and open, 
when tendered to him, all writs, the execution or 
return of which belongs to the bailiff of the franchise, 
and shall, without delay, issue to the said bailiff under 
the seal of the sheriff ; and in such manner and form 
as the sheriff himself ought to do, the warrant required 
by law for the due execution of the said writs (6) ; 
" (d) The bailiff of the franchise and not the sheriff shall be 
liable for the non-execution, mis-execution, or insuffi- 
cient return of any writs, or for any misconduct in the 



(n) Adapt form of appointment of London deputy, ante, p. 12. 
(o) Adapt ordinary warrant forms. 



FRANCHISES, ETC. 19 

performance of the said office or for any breach of the 
provisions of this Act ; and any fine imposed on the 
bailiff of the franchise or his bailiff or officer shall 
notwithstanding any grant be paid to the Crown ; 
and 
" (e) All the provisions of this Act (except as hereinafter 
mentioned) and every such enactment in any other 
Act as relates to the return of panels or juries, or to 
the due execution of any writ, or to the taking of fees, 
or to any extortion by sheriffs or their officers, or 
otherwise to the office and duties of sheriffs or their 
officers, shall, together with all the liabilities, punish- 
ments, and forfeitures thereby imposed, extend to 
such bailiff of the franchise and his bailiffs and 
officers in like manner as if he and they were a sheriff 
or sheriff's bailiffs and officers ; provided that the 
enactment as to the appointment and duration of 
office of a sheriff shall not apply, and such bailiff of 
the franchise and his bailiff shall be entitled to hold 
his office as long as he would have been entitled if 
this provision had not been enacted. 
" (f) In the case of the non-return of a writ, if the sheriff 
returns that he has delivered the writ to a bailiff of a 
franchise, the sheriff shall be ordered to execute the 
writ notwithstanding the said franchise ; and further 
to cause the bailiff of such franchise to attend before 
the High Court of Justice and answer why he did not 
execute the said writ." 
By sect. 35 of the same Act, " Every bailiff of a franchise Duties of 
within the meaning of the foregoing provisions of this Act, liberties and 
w r ho, in times past, has been used, or ought by himself or a bailiff, constables. 
to attend upon justices of assize or of gaol delivery and justices 
of the peace at large in any county, shall continue so to attend 
and execute all writs directed to him for the administration of 
justice in such franchise, and shall give his attendance upon 
and assistance to the sheriff at all courts of gaol delivery from 
time to time for the execution of prisoners." 

And Bee statutory prohibition of sale of offices, per sect. 27 of 
the Sheriffs Act, 1887, under title "Liabilities and Eights of 
Sheriff, and llemedies against Sheriff," post, p. 498. 



c2 



20 



Chapter II. 



OUTGOING SHERIFF, 



Outgoing 
sheriff to turn 
over prisoners 
and process to 
incoming 
sheriff. 



Incoming 
sheriff to sign 
and give du- 
plicate of list 
to outgoing 
sheriff. 



Sheriff not 
required to 
make return 
after six 
months from 
expiry of 
office. 



By the Sheriffs Act, 1887 (50 & 51 Yict. c. 55), s. 28 :— 

" (1.) Every sheriff shall at the expiration of his term of 
office make out and deliver to the incoming sheriff a correct 
list and account under his hand of all prisoners in his custody 
and of all rolls and writs in his hands not wholly executed by 
him, with all such particulars as may be necessary to explain to the 
incoming sheriff the several matters intended to be transferred 
to him, and shall thereupon turn over and transfer to the custody 
of the incoming sheriff all such prisoners, rolls and writs, and 
all records, books and matters appertaining to the office of 
sheriff. 

" (2.) The incoming sheriff shall thereupon sign and give to 
the outgoing sheriff a duplicate of such list and account, which 
shall be a good and sufficient discharge to him of and from all 
the prisoners therein mentioned and the execution of the writs 
and other matters therein contained ; and thereupon the in- 
coming sheriff shall stand charged with the said prisoners and 
with the execution and care of the said rolls, writs and other 
matters contained in the said list and account. 

" (3.) A sheriff shall not be called upon to make a return of 
any writ after the expiration of six months from the date at 
which he ceases to hold his office." 



21 



Chaffer III. 

GENERAL PRACTICE. 

PAGE 

Introductory - - - - - - - - -21 

Practice under Rules of the Supreme Court, 1883 - - 21 

Practice under Crown Office Rule*, 1886 - - - - 34 

Procedure generally as to the Issue of Warrants and Exe- 
cution of Writ* 47 

Procedure against Sheriff*, fyc.for not Executing Writs - 49 



Introductory. 

The practice of the Queen's Bench Division of the High 
Court and of the Crown Office is mainly regulated by the Rules 
of the Supreme Court, 1883, and the Crown Office Rules, 1886. 
Accordingly, such of these rules as directly bear on the subject 
of this work are reproduced in this chapter; whilst for any 
further information beyond that which is given in this work, 
the reader is referred to the current Annual Practice and to 
Short and Mellor's Practice of the Crown Office. 



Practice under Rules of the Supreme Court, 1883. 

Ord. XXXYL—TIiTAL. Ord.XXXVI. 

Writ of Inquiry and Reference as to Damages. 

Rule 56. The provisions of Rules 14, 15, 19, 34, 35, 36, and Application 
37 of this Order shall, with the necessary modifications, apply to inquiry, 
an inquiry, pursuant to a writ of inquiry. 

Pule 57. In every action or proceeding in the Queen's Bench How damages 
Division in which it shall appear to the Court or a judge that ^grea 
the amount of damages sought to be recovered is substantially matter of cal- 
a matter of calculation, it shall not be necessary to issue a writ 
of inquiry, but the Court or a judge may direct that the amount 
for which final judgment is to be entered shall be ascertained by 
an officer of the Court, and the attendance of witnesses and the 
production of documents before such officer may be compelled 
by subpoena, and such officer may adjourn the inquiry from time 



culation. 



22 



GENERAL PRACTICE. 



Assessment of 
damages in 
continuing 
cause of 
action. 



to time, and shall indorse upon the order for referring the 
amount of damages to him the amount found by him, and shall 
deliver the order with such indorsement to the person entitled 
to the damages, and such and the like proceedings may there- 
upon be had as to taxation of costs, entering judgment, and 
otherwise, as upon the finding of a jury upon a writ of inquiry. 
Rule 58. Where damages are to be assessed in respect of any 
continuing cause of action, they shall be assessed down to the 
time of the assessment. 



Ord. XLII. 

Judgment or 
order to 
be obeyed 
•without de- 
mand. 



"Waiver of 

conditional 
judgment or 
order. 



How judg- 
ment for 
payment of 
money 
enforced. 



Fur payment 
into Court. 



For delivery 
of land. 

For recovery 
of property 
other than 
land or 
momy. 



Ord. XLII.— EXECUTION. 

Rule 1. Where any person is by any judgment or order 
directed to pay any money, or to deliver up or transfer any 
property real or personal to another, it shall not be necessary to 
make any demand thereof, but the person so directed shall be 
bound to obey such judgment or order upon being duly served 
with the same without demand. 

Rule 2. Where any person who has obtained any judgment 
or order upon condition does not perform or comply with such 
condition, he shall be considered to have waived or abandoned 
such judgment or order so far as the same is beneficial to him- 
self, and any other person interested in the matter may on 
breach or non-performance of the condition take either such 
proceedings as the judgment or order may in such case warrant, 
or such proceedings as might have been taken if no such judg- 
ment or order had been made, unless the Court or a judge shall 
otherwise direct. 

Rule 3. A judgment for the recovery by or paj^ment to any 
person of money may be enforced by any of the modes by which 
a judgment or decree for the payment of money of any Court 
whose jurisdiction is transferred by the principal Act might 
have been enforced at the time of the passing thereof. 

Rule 4. A judgment for the payment of money into Court 
may be enforced by writ of sequestration, or in cases in which 
attachment is authorized by law, by attachment. 

Ride 5. A judgment for the recovery or for the delivery of 
the possession of land may be enforced by writ of possession. 

Rule 6. A judgment for the recovery of any property other 
than land or money may be enforced : 

(a) By writ for delivery of the property : 

(b) By writ of attachment : 

(c) By writ of sequestration. 



PRACTICE UNDER RULES OF SUPREME COURT, 1883. 23 

Rule 7. A Judgment requiring any person to do any act other To do or 
than the payment of money, or to abstain from doing anything, doinffanv 1 
may be enforced by writ of attachment, or by committal. act- 

Rule 8. In these Rules the term "writ of execution" shall Meaninj 
include writs of fieri facias, capias, elegit, sequestration, and execution" 

attachment, and all subsequent writs that may issue for giving 1 an(l '" ' ssum g 
' L t J . execution." 

effect thereto. And the term " issuing execution against any 
party " shall mean the issuing of any such process against his 
person or property as under the preceding Rules of this Order 
shall be applicable to the case. 

Rule 9. Where a judgment or order is to the effect that any Execution of 
party is entitled to any relief subject to or upon the fulfilment w^en? 1 
of any condition or contingency, the party so entitled may, 
upon the fulfilment of the condition or contingency, and demand 
made upon the party against whom he is entitled to relief, apply 
to the Court or a judge for leave to issue execution against such 
party. And the Court or judge may, if satisfied that the right 
to relief has arisen according to the terms of the judgment or 
order, order that execution issue accordingly, or may direct that 
any issue or question necessary for the determination of the 
rights of the parties be tried in any of the ways in which ques- 
tions arising in an action may be tried. 

Rule 10 is cancelled by Order XLVIIIa., Rule 8, R. S. C, Execution of 
June, 1891, which is as follows : — Where a judgment or order is a^aSsta 
against a firm, execution may issue : firm- 

(a) Against any property of the partnership within the j mis- 

diction ; 

(b) Against any person who has appeared in his own name 

under Order XLVIIIa., Rules (5) or (6), or who has 
admitted on the pleadings that he is, or who has been 
adjudged to be, a partner ; 

(c) Against any person who has been individually served, as 

a partner, with the writ of summons, and has failed to 

appear. 
If the party who has obtained judgment or an order claims to 
be entitled to issue execution against any other person as being 
a member of the firm, he may apply to the Court or a judge for 
leave so to do ; and the Court or judge may give such leave if 
the liability be not disputed, or if such liability be disputed, may 
order that the liability of such person be tried and determined. 
But except as against any property of the partnership, a judg- 
ment against a firm shall not render liable, release, or otherwise 
affect any member thereof who was out of the jurisdiction when 



24 



GENERAL PRACTICE. 



No writ issued 
except on pro- 
duction of 
judgment. 



Prcccipc for 
■writ of 
execution. 



How writ of 
execution to 
ba indorsed. 



Date and 
form of writ. 



Poundage, 
fees, and 
expenses. 

Amount of 
money and 
inter* -t to be 
recovered to 
Lo indorsed. 



the writ was issued, and who has not appeared to the writ unless 
he has been made a party to the action under Order XL, or has 
heen served within the jurisdiction after the writ in the action 
was issued. 

Rule 11. No writ of execution shall be issued without the 
production to the officer by whom the same should be issued of 
the judgment or order upon which the writ of execution is to 
issue, or an office copy thereof, showing the date of entry. And 
the officer shall be satisfied that the proper time has elapsed to 
entitle the creditor to execution. 

Rule 12. No writ of execution shall be issued without the 
party issuing it, or his solicitor, filing a precipe for that pur- 
pose. The prcBoipe shall contain the title of the action, the re- 
ference to the record, the date of the judgment, and of the 
order, if any, directing the execution to be issued, the names of 
the parties against whom, or of the firm against whose goods, 
the execution is to be issued ; and shall be signed by or on 
behalf of the solicitor of the party issuing it, or by the party 
issuing it, if he do so in person. The Forms in Appendix Gr. 
shall be used, with such variations as circumstances may re- 
quire. 

Rule 13. Every writ of execution shall be indorsed with the 
name and place of abode or office of business of the solicitor 
actually suing out the same, and when the solicitor actually suing 
out the writ shall sue out the same as agent for another solicitor, 
the name and place of abode of such other solicitor shall also 
be indorsed upon the writ ; and in case no solicitor shall be 
employed to issue the writ, then it shall be indorsed with a 
memorandum expressing that the same has been sued out by the 
plaintiff or defendant in person, as the case may be, mentioning 
the city, town, or parish, and also the name of the hamlet, 
street, and number of the house of such plaintiff's or defendant's 
residence, if any such there be. 

Rule 14. Every writ of execution shall bear date of the day 
on which it is issued. The Forms in Appendix H. shall be 
used, with such variations as circumstances may require. 

Rule 15. In every case of execution the party entitled to 
execution may levy the poundage, fees, and expenses of execu- 
tion, over and above the sum recovered. 

Rule 1G. Every writ of execution for the recovery of money 
shall be indorsed with a direction to the sheriff, or other officer or 
person to whom the writ is directed, to levy the money really 
due and payable and sought to be recovered under the judgment 



PEACTICE UNDEB RULES OP SUPREME COURT, 18 25 

or order, stating the amount, and also to levy interest thereon, 
if sought to be recovered, at the rate of 4/. per cent, per annum 
from the time when the judgment or order was entered or made, 
provided that in cases where there is an agreement between the 
parties that more than 41. per cent, interest shall be secured by 
the judgment or order, then the indorsement maybe accordingly 
to levy the amount of interest so agreed. 

Rule 17. Every person to whom any sum of money or any Time to sue 
costs shall be payable under a judgment or order shall, so soon ^-f'/"' or 
as the money or costs shall be payable, be entitled to sue out one enforce pay- 

., .i » /. . j, '• ., ., mentof money 

or more writ or writs of fieri facias or one or more writ or writs r costs. 
of elegit to enforce payment thereof, subject nevertheless as 
follows : 

(a) If the judgment or order is for payment within a period 

therein mentioned, no such writ as aforesaid shall be 
issued until after the expiration of such period : 

(b) The Court or a judge may, at or after the time of giving 

judgment or making an order, stay execution until 
such time as they or he shall think fit. 

Rule 18. Upon any judgment or order for the recovery or Separate writs 
payment of a sum of money and costs, there may be, at the ^ maae 6 
election of the party entitled thereto, either one writ or separate and costs, 
writs of execution for the recovery of the sum and for the 
recovery of the costs, but a second writ shall only be for costs, 
and shall be issued not less than eight days after the first writ. 

Rule 19. A party who has obtained judgment or an order, Time for exe- 
not being a judgment for payment of money or costs, or for the fo^^nJytmd 
recovery of land, may issue execution in fourteen days, unless costs - 
the Court or a judge shall order execution to issue at an earlier 
or later date with or without terms. 

Rule 20. A writ of execution if unexecuted shall remain in Duration of 
force for one year only from its issue, unless renewed in the 
manner hereinafter provided ; but such writ may, at any time Renewal, 
before its expiration, by leave of the Court or a judge, be 
renewed by the party issuing it for one year from the date of 
such renewal, and so on from time to time during the continu- 
ance of the renewed writ, either by beiug marked with a seal of 
the Court bearing the date of the day, month, and year of such 
renewal, or by such party giving a written notice of renewal to 
the sheriff, signed by the party or his solicitor, and bearing the 
like seal of the Court ; and a writ of execution so renewed shall 
have effect, and be entitled to priority, according to the time of 
the original delivery thereof. 



26 



GENEEAL PRACTICE. 



Evidence of 
renewal. 



Execution to 
issue within 
six years. 

Application 
for leave to 
issue execu- 
tion in certain 

cases. 



Orders may 
be enforced 
like judg- 
ments. 

Order of 
commitment 

under Debtors 
Act, 1869. 



Execution by 
or against 

person not a 
party. 



Rule 21. The production of a writ of execution, or of the 
notice renewing the same, purporting to he marked with such 
seal as in the last preceding rule mentioned, showing the same 
to have been renewed, shall be sufficient evidence of its having 
been so renewed. 

Rule 22. As between the original parties to a judgment or 
order, execution may issue at any time within six years from the 
recovery of the judgment or the date of the order. 

Rule 23. In the following cases, viz. : — 

(a) Where six years have elapsed since the judgment or date 

of the order, or any change has taken place by death 
or otherwise in the parties entitled or liable to execu- 
tion ; 

(b) Where a husband is entitled or liable to execution upon a 

judgment or order for or against a wife ; 

(c) Where a party is entitled to execution upon a judgment 

of assets infuturo; 

(d) Where a party is entitled to execution against any of the 

shareholders of a joint-stock company upon a judg- 
ment recorded against such company, or against a 
public officer or other person representing such com- 
pany ; 
the party alleging himself to be entitled to execution may apply 
to the Court or a judge for leave to issue execution accordingly. 
And such Court or judge may, if satisfied that the party so 
applying is entitled to issue execution, make an order to that 
effect, or may order that any issue or question necessary to de- 
termine the rights of the parties shall be tried in any of the 
ways in which any question in an action may be tried. And in 
either case such Court or judge may impose such terms as to 
costs or otherwise as shall be just. 

Rule 24. Every order of the Court or a judge in any cause 
or matter may be enforced against all persons bound thereby in 
the same manner as a judgment to the same effect. 

Rule 25. An order of commitment under the Debtors Act, 
1869, shall bear date on the day on which such order was made, 
and shall continue in force for one year from such date and no 
longer; but it may be renewed in the manner provided for 
writs of execution by Rule 20 of this Order. 

Rule 26. Any person not being a party to a cause or matter, 
who obtains any order or in whose favour any order is made, 
shall be entitled to enforce obedience to such order by the same 
process as if he were a party to such cause or matter ; and any 



PRACTICE UNDER RULES OF SUPREME COURT, 1883. 27 

person not being a party to a cause or matter, against whom 
obedience to any judgment or order may be enforced, shall bo 
liable to the same process for enforcing obedience to such judg- 
ment or order as if he were a party to such cause or matter. 

Rule 27. No proceeding by audita querela shall hereafter be Audita querela 
used; but any party against whom judgment has been given ^ °^ 10 f .' 
may apply to the Court or a judge for a stay of execution or stay execu- 
other relief against such judgment, upon the ground of facts lon * 
which have arisen too late to be pleaded ; and the Court or judge 
may give such relief and upon such terms as may be just. 

Rule 28. Nothing in this Order shall take away or curtail any Saving of 
right heretofore existing to enforce or give effect to any judg- ^oie of 8 
ment or order in any manner or against any person or property process, 
whatsoever. 

Rule 29. Nothing in this Order shall affect the order in which Order of 

• iP j_ • i-i issuing writs. 

writs oi execution may be issued. 

Rule 30. If a mandamus, granted in an action or otherwise, Court may 

-,, ,.... ., ;pj_i t> direct act to 

or a mandatory order, injunction, or judgment tor the specific be done at 

performance of any contract be not complied with, the Court or ^P^ ns , e . of 
■ i-i • c t • t disobedient 

a judge, besides or instead ot proceedings against the disobedient party. 

party for contempt, may direct that the act required to be done 

may be done so far as practicable by the party by whom the 

judgment or order has been obtained, or some other person 

appointed by the Court or judge, at the cost of the disobedient 

party, and upon the act being done, the expenses incurred may 

be ascertained in such manner as the Court or a judge may 

direct, and execution may issue for the amount so ascertained, 

and costs. 

Rule 31. Any judgment or order against a corporation wilfully How judg- 

disobeyed may, by leave of the Court or a judge, be enforced by corporation 8 

sequestration against the corporate property, or by attachment enforced. 

against the directors or other officers thereof, or by writ of 

sequestration against their property. 

Discovery in Ai<l <>f Execution. 
Rule 32. When a judgment or order is for the recovery or Examination 
payment of money, the party entitled to enforce it may apply a* . i"l t or^- 1" ' tV* 
to the Court or a judge for an order that the debtor liable under debts owing 
such judgment or order, or in the case of a corporation that any 
officer thereof, be orally examined, as to whether any and what 
debts are owing to the debtor, and whether the debtor has any 
and what other property or means of satisfying the judgment or 



28 



GENERAL PRACTICE. 



Court may 
order attend- 
ance, &c. of 
party, if diffi- 
culty in 
enforcing 
judgment. 



Costs of 
application 
under it. 32 
and 33. 



order, before a judge or an officer of the Court as the Court or 
judge shall appoint ; and the Court or judge may make an 
order for the attendance and the examination of such debtor, 
or of any other person, and for the production of any books or 
documents. 

Rule 33. In case of any judgment or order other than for the 
recovery or payment of money, if any difficulty shall arise in or 
about the execution or enforcement thereof, any party interested 
may apply to the Court or a judge, and the Court or judge may 
make such order thereon for the attendance and examination of 
any party or otherwise as may be just. 

Rule 34. The costs of any application under the last two pre- 
ceding rules or either of them, and of any proceedings arising 
from or incidental thereto, shall be in the discretion of the Court 
or a judge, or in the discretion of such officer as in Rule 32 
mentioned, if the Court or a judge shall so direct. 



Ord. XLIII. 



Effect, &c. of 
writs of fi. fa. 
and elegit. 



"Writ of ven- 
ditioni exponas. 



"Writs of 
f. fa. de bonis 
ecclesiasticis, or 
sequestration. 



Procedure 
thereon. 



Ord. XLIII.— WHITS OF FIEEI FACIAS, ELEGIT, AND 

SEQUESTRATION. 

Rule 1. "Writs of fieri facias and of elegit shall have the same 
force and effect as the like writs have heretofore had, and shall 
be executed in the same manner in which the like writs have 
heretofore been executed. 

Rule 2. Where it appears, upon the return of any writ of fieri 
facias, that the sheriff or other officer has by virtue of such writ 
seized, but not sold, any goods of the person directed to pay a 
sum of money or costs, the person to whom such sum of money 
or costs is payable shall, immediately after such writ with such 
return shall have been filed as of record, be at liberty to sue out 
a writ of venditioni exponas. 

Rule 3. Where it appears, upon the return of any writ of 
fieri facias or any writ of elegit, that the person against whom 
such writ was so issued is a beneficed clerk, and has no goods or 
chattels, nor any lay fee in the bailiwick of the sheriff to whom 
such writ was directed, the person to whom the sum of money 
or costs mentioned in such writ is or are payable shall, im- 
mediately after such writ with such return shall have been 
filed as of record, bo at liberty to sue out one or more writs 
of fieri facias de bonis ecclesiasticis, or one or more writs of 
secjuestration. 

Rule 4. Such writs as in the last preceding rule mentioned, 



PRACTICE UNDER RULES OE SUPREME COURT, 1883. 29 

when sealed, shall be delivered to the bishop to be executed by 
him, and such writs, when returned by the bishop, shall be 
delivered to the parties or solicitors by whom respectively they 
were sued out, and shall thereupon be filed as of record in the 
Central Office ; and for the execution of such writs the bishop 
or his officers shall not take or be allowed any fees other than 
such as are or shall be from time to time allowed by lawful 
authority. 

Rule 5. Writs of venditioni exponas, distringas nuper rice com- "Writs in aid 
item, fieri facias de bonis ecclesiasticis, sequestrari facias de bonis ° e { e fit T 
eccksiastieis, and all other writs in aid of a writ of fieri facias or 
of elegit, may be issued and executed in the same cases and in 
the same manner as heretofore. 

Rule G. Where any person is by any judgment or order Sequestration 
directed to pay money into Court or to do any other act in a pavmenf 
limited time, and after due service of such judgment or order into Court or 
refuses or neglects to obey the same according to the exigency 
thereof, the person prosecuting such judgment or order shall, at 
the expiration of the time limited for the performance thereof, 
be entitled, without obtaining any order for that purpose, to 
issue a writ of sequestration against the estate and effects of 
such disobedient person. Such writ of sequestration shall have 
the same effect as a writ of sequestration in Chancery had before 
the commencement of the principal Act, and the proceeds of 
such sequestration may be dealt with in the same manner as the 
proceeds of writs of sequestration were before the same date 
dealt with by the Court of Chancery. 

Rule 7. Xo subpoena for the payment of costs, and, unless by No subpoena 
leave of the Court or a judge, no sequestration to enforce such i^^ seques- 

payment, shall be issued. tration for 

costs. 

Ord. XIAY.—A TTA< ■IIMEXT. Ord. XLIV. 



Rule 1 . A writ of attachment shall have the same effect as Effect of -writ 
a writ of attachment issued out of the Chancery Division has men t. ac 
heretofore had. 

Rule 2. No writ of attachment shall be issued without the Application 
leave of the Court or a judge, to be applied for on notice to the 
party against whom the attachment is to be issued. 



for leave to 

issue. 



Ord. XLYLL— WRIT OF POSSESS I". V. Ord. XLVII. 

Rule 1. A judgment or order that a party do recover posses- Writ of pos- 
sion of any land may be enforced by writ of possession in coTCryof rG " 



laud. 



30 



GENERAL PRACTICE. 



Writ issued on 
proving ser- 
vice of judg- 
ment and 
disobedience. 



Separate 
writs for 
recovery of 
possession and 

costs. 



manner before the commencement of the principal Act used in 
actions of ejectment in the Superior Courts of Common Law. 

Eule 2. Where by any judgment or order any person therein 
named is directed to deliver up possession of any lands to some 
other person, the person prosecuting such judgment or order 
shall, without any order for that purpose, he entitled to sue 
out a writ of possession on filing an affidavit showing due 
service of such judgment or order and that the same has not 
been obeyed. 

Eule 3. Upon any judgment or order for the recovery of any 
land and costs, there may be either one writ or separate writs 
of execution for the recovery of possession and for the costs at 
the election of the successful party. 



Ord.XLVIII. 



Ord. xlviil— writ of delivery. 



Writ of deli 
very, when 
ordered. 



Eule 1. Where it is sought to enforce a judgment or order for 
the recovery of any property other than land or money by writ 
of delivery, the Court or a judge may, upon the application of 
the plaintiff, order that execution shall issue for the delivery of 
the property, without giving the defendant the option of retain- 
ing the property, upon paying the value assessed, if any, and 
that if the property cannot be found, and unless the Court or a 
judge shall otherwise order, the sheriff shall distrain the defen- 
dant by all his lands and chattels in the sheriff's bailiwick, till 
the defendant deliver the property ; or at the option of the 
plaintiff, that the sheriff cause to be made of the defendant's 
goods the assessed value, if any, of the property. 

Eule 2. A writ of delivery shall be in the Form No. 10 in 
Separate writ Appendix H. ; and when a writ of delivery is issued, the 

for dciiiift cr 6S • 

&c. plaintiff shall, either by the same or a separate writ of execu- 

tion, be entitled to have made of the defendant's goods the 
damages and costs awarded, and interest. 



Eorm of writ. 



Ord. LVII. 

In what cases 
relief by 
interpleader 
granted. 



Ord. INI!.— INTERPLEADER. 

Eule 1. Eelief by way of interpleader may be granted — 
(a) Where the person seeking relief (in this Order called the 
applicant) is under liability for any debt, money, 
goods, or chattels, for or in respect of which he is, or 
expects to be, sued by two or more parties (in this 
Order called the claimants) making adverse claims 
thereto : 



PRACTICE UNDER RULES OF SUPREME COURT, 1883. 31 

(b) Where the applicant is a sheriff or other officer charged 
with the execution of process by or under the authority 
of the High Court, and claim is made to any money, 
goods, or chattels taken or intended to be taken in 
execution under any process, or to the proceeds or 
value of any such goods or chattels, by any person 
other than the person against whom the process issued. 

Rule 2. The applicant must satisfy the Court or a judge by What appli- 

rr. -, . , ,, . cant must 

affidavit or otherwise — prove to 

(a) That the applicant claims no interest in the subject-matter Court. 

in dispute, other than for charges or costs : and 

(b) That the applicant does not collude with any of the 

claimants ; and 

(c) That the applicant is willing to pay or transfer the subject- 

matter into Court or to dispose of it as the Court or a 
judge may direct. 

Rule 3. The applicant shall not be disentitled to relief by Adverse titles 
reason only that the titles of the claimants have not a common 
origin, but are adverse to and independent of one another. 

Rule 4. Where the applicant is a defendant, application for Time for 
relief may be made at any time after service of the writ of a^endao? 1 J 
summons. 

Rule 5. The applicant may take out a summons calling on Summons by 
the claimants to appear and state the nature and particulars of app c 
their claims, and either to maintain or relinquish them. 

Rule 6. If the application is made by a defendant in an Stay of 
action the Court or a judge may stay all further proceedings in ac 10n " 
the action. 

Rule 7. If the claimants appear in pursuance of the summons, Order that 
the Court or a judge may order either that any claimant be n/adedefend- 
made a defendant in any action already commenced in respect ant, or that 
of the subject-matter in dispute in lieu of or in addition to the stated. 
applicant, or that an issue between the claimants be stated and 
tried, and in the latter case may direct which of the claimants 
is to be plaintiff, and which defendant. 

Rule 8. The Court or a judge may, with the consent of both Disposal in 
claimants or on the request of any claimant, if, having regard manner. 
to the value of the subject-matter in dispute, it seems desirable 
so to do, dispose of the merits of their claims, and decide the 
same in a summary manner and on such terms as may be just. 

Rule 9. Where the question is a question of law, and the Questions of 
facts are not in dispute, the Court or a judge may either decide law * 



32 



GENERAL PRACTICE. 



Special case. 



Claimant not 
appearing, or 
neglecting to 
obey to 
be barred. 



Order under 
Rule 8, to be 
final. 



Order to sell 
goods seized 
in execution. 



Application of 
Ords. XXXI., 
XXXVI. to 
interpleader 
proceedings. 



Title of order. 



Orders as to 
costs, &c. 



the question without directing the trial of an issue, or order 
that a special case he stated for the opinion of the Court. If a 
special case is stated, Order XXXIY. shall, as far as applicable, 
apply thereto. 

Rule 10. If a claimant, having been duly served with a sum- 
mons calling on him to appear and maintain, or relinquish, 
his claim, does not appear in pursuance of the summons, or, 
having appeared, neglects or refuses to comply with any order 
made after his appearance, the Court or a judge may make an 
order declaring him, and all persons claiming under him, for 
ever barred against the applicant, and persons claiming imder 
him, but the order shall not affect the rights of the claimants as 
between themselves. 

Rule 11. Except where otherwise provided by statute, the 
judgment in any action or on any issue ordered to be tried or 
stated in an interpleader proceeding, and the decision of the 
Court or a judge in a summary way, under Rule 8 of this Order, 
shall be final and conclusive against the claimants, and all per- 
sons claiming under them, unless by special leave of the Court 
or judge, as the case may be, or of the Court of Appeal. 

Rule 12. When goods or chattels have been seized in execu- 
tion by a sheriff or other officer charged with the execution of 
process of the High Court, and any claimant alleges that he is 
entitled, under a bill of sale or otherwise, to the goods or chattels 
by way of security for debt, the Court or a judge may order the 
sale of the whole or a part thereof, and direct the application of 
the proceeds of the sale in such manner and upon such terms as 
may be just. 

Rule 13. Orders XXXI. and XXXVI. shall, with the neces- 
sary modifications, apply to an interpleader issue ; and the Court 
or judge who tries the issue may finally dispose of the whole 
matter of the interpleader proceedings, including all costs not 
otherwise provided for. 

Rule 14. Where in any interpleader proceeding it is necessary 
or expedient to make one order in several causes or matters 
pending in several divisions, or before different judges of the 
same division, such order may be made by the Court or judge 
before whom the interpleader proceeding may be taken, and 
shall bo entitled in all such causes or matters ; and any such 
order (subject to the right of appeal) shall be binding on the 
parties in all such causes or matters. 

Rule 15. The Court or a judge may, in or for the purposes of 



PEACTICE UNDER RULES OF SUPREME COURT, 1883. ; j ) 

any interpleader proceedings, make all such orders as to costs 
and all other matters as may he just and reasonable. 

Ohd. LKIX.— ARREST OF DEFENDANT UNDER SECT. 6 OF Ord. LXIX. 
THE DEBTORS ACT, 1869. 

Rule 1. An order to arrest under the 6th section of the Form of 
Debtors Act, 18GU (which shall he in the Form No. 31 in app^f"' 

' \ and order to 

Appendix K., with such variations as circumstances may re- arrest, 
quire), shall be made upon affidavit and ex parte; but the 
defendant may at any time after arrest apply to the Court or a 
judge to rescind or vary the order or to be discharged from 
custody, or for such other relief as may be just. 

Rule 2. An order to arrest shall before delivery to the sheriff Indorsement 
be indorsed with the plaintiff's address for service as required 
by Order IV., Rules 1 and 2. Concurrent orders may be issued 
for arrest in different counties. The sheriff or other officer Sheriff's fees, 
executing the order shall be entitled to the same fees as hereto- 
fore. 

Rule 3. The security to be given by the defendant may be a Security to 
deposit in Court of the amount mentioned in the order, or a be given by 

. . , . deiendant. 

bond to the plaintiff by the defendant and two sufficient sureties 
(or with the leave of the Court or a judge either one surety or 
more than two), or, with the plaintiff's consent, any other form 
of security. The plaintiff may, within four days after receiving 
particulars of the names and addresses of the proposed sureties, 
give notice that he objects thereto, stating in the notice the par- 
ticulars of his objections. In such case the sufficiency of the 
security shall be determined by a master, who shall have power 
to award costs to either party. It shall be the duty of the 
plaintiff to obtain an appointment for that purpose, and unless 
he do so within four days after giving notice of objection the 
security shall be deemed sufficient. 

Rule 4. The money deposited, and the security, and all pro- Control of 
ceedings thereon, shall be subject to the order and control of the Becurifcv^&c 
Court or a judge. 

Rule 5. Unless otherwise ordered, the costs of and incidental Costs of 
to an order of arrest shall be costs in the cause. arrest. 

Rule 6. Upon payment into Court of the amount mentioned Discharge of 

in the order, a receipt shall be given ; and upon receiving: the defendant on 
' . -i i • payment and 

bond or other security, a certificate to that effect shall be given, security. 
signed or attested by the plaintiff's solicitor if he have one, or 
by the plaintiff, if he sue in person. The delivery of such 
m. p 



Date of 
arrest to be 
indorsed. 



GENERAL PRACTICE. 

receipt, or a certificate to the sheriff or other officer executing 
the order, shall entitle the defendant to be discharged out of 
custody. 

Rule 7. The sheriff or other officer named in an order to 
arrest shall, within two days after the arrest, indorse on the 
order the true date of such arrest. 

[And see Forms in the Appendices to aboye Kules so far as not set out 
in the various branches of this work.] 



Outlawry 
before jud^ 
ment. 



On non- 
appearance 
distringas or 
capias may 
issue. 



Issue of alias 
and pluries 
■writs. 



Capias cum 
proclamatione 

into foreign 
county. 



Practice under Crown Office Rules, 1886. 

Outlawry. 

Rule 99. To proceed to outlawry before judgment on an 
indictment for misdemeanor, or an information, the prosecutor 
must issue a writ of venire facias at the Crown Office returnable 
on a day certain either in or out of the sittings. 

Rule 100. On the return of the sheriff that he has summoned 
the defendant, and the defendant has not appeared, the prose- 
cutor may issue a distnngas to answer, returnable on a day 
certain either in or out of the sittings, and if necessary alias 
writs of distringas, and if the sheriff return that the defendant 
has no goods in his bailiwick whereby he can be summoned, or 
distrained, a capias ad respondendum tested, and made returnable 
as the writ of venire facias, may be issued on the fourth day 
after the return. 

Rule 101. On the return of non est inventus to a capiat ad 
respondendum, before the prosecutor can proceed further, he 
shall issue a second writ of capias on the fourth day after the 
return of the first, made returnable as the first writ, and shall 
issue a third writ of capias on the fourth day after the return of 
the second, tested and made returnable, as the second writ. 

Rule 102. If the defendant is dwelling in another county 
than where the indictment was found, or where the information 
be laid, the prosecutor shall issue another second writ of capias 
cum proclamatione to the sheriff of the foreign county after the 
return of the first writ to the sheriff of the county in which the 
indictment was found, or information laid, tested as the other 
writs of capias, but not to bo made returnable till such a day 
certain as will enable the sheriff of the foreign county, if he 
cannot be found, to make proclamation at two of his County 



PRACTICE UNDER CROWN OFFICE RULES, 1886. 35 

Courts either three months, or four months, after the issue of 
the writ according as the sheriff may hold his Courts from 
month to month, or six weeks to six weeks. 

Rule 103. Upon a return of non est inventus to the third writ Writ of 
of capias in the same county, and if the defendant be dwelling cxl ° en ■ 
in another county to the capias to the sheriff of such county, a 
writ of exigent must be issued by the prosecutor. 

Rule 104. Simultaneously with the writ of exigent a writ of Writ of pro- 
proclamations shall be issued to the sheriff of the county where c ama lons " 
the defendant is mentioned to be, or inhabit ; both writs must 
be tested on the day of the return to the previous process, and 
returnable on such a day certain during the sittings as will 
admit of their being delivered to the sheriff three months before 
return. 

Rule. 105. If it does not appear by the return to the writ of Writ of 
exigent that the defendant has been exacted five times and aU^atnr™ 
outlawed, the prosecutor must issue another writ of exigent 
with allocatur, commanding the sheriff to cause him to be 
further exacted until he shall have been exacted five times and 
outlawed. 

Rule 106. Upon the return of the sheriff that the defendant Entry of 
has been exacted five times and outlawed, on application of the J ud o ment - 
prosecutor judgment may be entered at the Crown Office. 

Rule 107. After judgment has been entered, the roll of all Roll of pro- 
file proceedings may be engrossed by the prosecutor, and filed cee ° s ' 
at the Crown Office. 

Rule 108. A writ of capias utlagatum may be issued by the Capias utla- 
prosecutor at any time the defendant is likely to be found, or a gat 
like writ special, cum breve de inquirendo, or if necessary a writ 
of melius inquirendum may be applied for. 

Rule 109. All the rules as to proceeding to outlawry on Application 
indictment in misdemeanor before judgment, shall apply to fei on y a 
indictment for felony, except that in felony. the prosecutor may 
issue a writ of capias ad respondendum at once, instead of a 
venire facias to answer. 

Rule 110. On proceeding to outlawry after judgment on Outlawry 
indictment for felony or misdemeanor or information, the !!™£ 3 s ~ 
prosecutor may issue a writ of capias ad satisfaciendum into the 
county where the indictment is found, or information laid, 
returnable on the first day of the then next sittings. One writ 
of capias only need be issued, and on return of non est in rait a*, 
the prosecutor may issue a writ of exigent tested on the return 

d2 



;56 



GENERAL PRACTICE. 



Application 
of rules to 
proceedings 
after judg- 
ment. 

Capias utla- 
gatum into 
Lancashire. 



day of the writ of capias, returnable on the first day of the then 
next sittings. It shall not he necessary to issue any writ of 
proclamations on the return of a writ of capias ad satis- 
faciendum. 

Eule 111. After the return to the writ of exigent, the rules 
as to proceeding after writ of exigent in outlawry before judg- 
ment shall apply to proceedings in outlawry after judgment. 

Rule 112. In the county of Lancaster the capias utlagatum 
and all subsequent process shall be directed to the Chancellor of 
the Duchy. 



Personal 
appearance. 



Undertaking 
of solicitor to 
appear. 



Bail an 1 
super sidcas. 



Plea on 
reversal. 



Committal on 
outlawry 
after judg- 
ment. 



Reversal after 
conviction. 



Writ of error 
to reverse. 



Reversal of Outlawry. 

Rule 113. It shall not be necessary for any person who shall 
be outlawed before conviction for any matter or thing except 
treason or felony to appear in person to reverse such outlawry, 
but such person may appear by solicitor and reverse the same. 

Rule 114. If any person outlawed otherwise than for treason, 
or felony, before conviction be taken and arrested upon any 
capias utlagatum, the sheriff may take a solicitor's engagement 
under his hand to appear for the defendant, and shall there- 
upon discharge the defendant from the arrest. 

Rule 115. If a defendant surrenders or is taken before out- 
lawry is complete on misdemeanor before judgment, he may 
give bail in such amount, and with or without sureties, as a 
judge may direct, to appear to the indictment, inquisition, or 
information, and on appearance apply to the Court or a judge 
for a supersedeas to the process of outlawry. 

Rule 116. If a defendant comes in on an indictment or 
information for misdemeanor, and reverses the outlawry before 
judgment, he shall plead instanter. 

Rule 117. On an indictment or inquisition for felony, or in 
any case after judgment, a defendant who surrenders or is 
taken before the outlawry is complete, shall be committed to 
answer the indictment or inquisition or to satisfy the judgment, 
but may supersede the outlawry process. 

Rule 118. To reverse outlawry after conviction the defendant 
shall surrender himself into custody, and afterwards be brought 
into Court to assign errors upon the judgment in outlawry, by 
habeas corpus. 

Rule 119. If the defendant be taken on a capias utlagatum, 
he shall deliver the writ of error into Court when he appears 
upon the return to the capias ; he shall then move for an order to 



1886. 37 

bring him up again to assign errors, and shall be committed by 
the Court to the Queen's prison. 

Rule 120. Until outlawry be reversed a defendant after con- No committal 
viction shall not be committed, or called up for judgment upon 
an indictment, information, or inquisition. 

Rule 121. Upon the assignment of error in outlawry the Assignment 
prosecutor shall join in error within eight days, and the case ° ei 
may then be entered in the Crown paper for argument on the 
application of either party as in error to the Queen's Bench 
Division from inferior courts. 

Bail. 

Rule 122. Applications for bail in felony or misdemeanor Application 
where the party is in custody shall be in the first instance by w flummons ^ 
summons before a judge at chambers for a writ of habeas corpus, 
or to show cause why the defendant should not be admitted to 
bail either before a judge at chambers or before a justice of the 
peace, in such an amount as the judge may direct. 

Scire Facias. 

Rule 127. No proceedings shall be taken in the Crown Office Scire facias 
by scire facias upon recognizance. 



abolished. 



Jury. 

Rule lo8. Writs of venire facias, or other writs for the sum- How 
moning of juries, shall no longer be used, but the jury, whether 
special or common, shall be taken from the list of persons sum- 
moned for the sittings or assizes, and a panel shall be annexed 
to the record as in civil cases. Either the prosecutor or the 
defendant may, except in case of felony, obtain a special jury 
upon giving the like notice as is required in civil cases, and the 
Court or a judge may, at the instance of either party, order that 
a special jury be struck as provided for by " The Juries Act, 
1870." And when the jury has been reduced either party may 
draw up an order at the Crown Office directing the sheriff to 
summon that particular jury at such time and place as may be 
required. 

View. 

Rule 159. Upon any application for a view there shall be an Costs of view, 
affidavit stating the place at which the view is to be made, and 



38 



GENERAL PRACTICE. 



the distance thereof from the office of the under-sheriff, and the 
sum to be deposited with the under-sheriff shall be 10/. in case 
of a common jury, and 16/. in case of a special jury, if such 
distance do not exceed five miles, and 15/. in case of a common 
jury, and 21/. in case of a special jury, if it be above five miles. 
And if such sum shall be more than sufficient to pay the 
expenses of the view, the surplus shall forthwith be returned to 
the solicitor of the party who obtained the view. If such sum 
shall not be sufficient to pay such expenses the deficiency shall 
forthwith be paid by such solicitor to the under-sheriff, and the 
under-sheriff shall pay and account for the money so deposited, 
according to the scale at the end of the Appendix to these 
Eules. 



Application 
of Ord.XLII. 
of R. S. C, 

1883. 



Attachment 
or committal. 



Praecipe. 



Endorsement 
on writ of 
execution. 



Execution. 

Eule 217. Order XLII. of the Eules of the Supreme Court, 
1883 (Execution), shall, as far as it is applicable, apply to all 
civil proceedings on the Crown side. 

The following Eules shall apply to all criminal proceedings 
on the Crown side : — 

Eule 218. A judgment or order requiring any person to do 
any act other than the payment of money, or to abstain from 
doing anything, may be enforced by writ of attachment, or by 
committal. 

Eule 219. No writ of execution shall be issued without the 
party issuing it, or his solicitor, filing a prcecipe for that pur- 
pose. The prcecipe shall contain the title of the proceeding and 
the date of the judgment or order on which it is founded, the 
names of the parties against whom the execution is to be issued, 
and shall be signed by or on behalf of the solicitor of the party 
issuing it, or by the party issuing if he do so in person. 

Eule 220. Every writ of execution shall be endorsed with the 
name and place of abode, or office of business, of the solicitor 
actually suing out the same ; and when the solicitor actually 
suing out the writ shall sue out the same as agent for another 
solicitor, the name and place of abode of such other solicitor 
shall be indorsed upon the writ, and in case no solicitor shall be 
employed to issue the writ, then it shall be indorsed with a 
memorandum expressing that the same has been sued out by the 
party in person, mentioning the city, town or parish, and also 
the name of the hamlet, street, and number of the house of such 
residence, if any such there be. 



PRACTICE UNDER CROWN OFFICE RULES, 1886. 39 

Rule 221. Every writ of execution shall be made returnable Return to 
immediately after the execution thereof. wri ' 

Rule 222. In every case of execution the party entitled to Poundage, &c. 
execution may levy the poundage, fees, and expenses of execu- 
tion over and above the sum recovered. 

Rule 223. Every writ of execution for the recovery of money Interest, 
shall be endorsed with a direction to the sheriff or other officer 
or person to whom the writ is directed to levy the money really 
due and payable and sought to be recovered, with interest at 
the rate of 4/. per cent, per annum from the time (when the 
judgment was entered up) or from the date of the order. 

Rule 224. Every person to whom any sum of money or any Fl.fa. or 
costs shall be payable under a judgment shall immediately after eesi ' 
the time when the judgment was duly entered be entitled to sue 
out one or more writ or writs of fieri facias, or one or more writs 
of elegit to enforce payment thereof. 

Rule 225. Every order of the Court or a judge in any cause Orders, how 
or matter may be enforced in the same manner as a judgment en orce ' 
to that effect. 

Rule 226. A writ of execution, if unexecuted, shall remain in Duration of 
force for one year only from its issue, unless renewed in the 
manner hereinafter provided ; but such writ may, at any time Renewal, 
before its expiration, by leave of the Court or a judge, be re- 
newed by the party issuing it, for one year from the date of 
such renewal, and so on from time to time during the continu- 
ance of the renewed writ either by being marked with a seal of 
the Court bearing the date of the day, month, and year of such 
renewal, or by such party giving a written notice of renewal to 
the sheriff, signed by the party or his solicitor, and bearing the 
like seal of the Court ; and a writ of execution so renewed shall 
have effect and be entitled to priority according to the time of 
the original delivery thereof. 

Rule 227. The production of a writ of execution or the notice Evidence of 
renewing the same, purporting to be marked witli such seal as 
in the last preceding rule mentioned, showing the same to have 
been renewed, shall be sufficient evidence of its having been so 
renewed. 

Rule 228. "Writs of fieri facias and of elegit shall have the Effect of fi. 
same force and effect as the like writs have heretofore had, '*" an e ' C9lL 
except that a writ of elegit shall no longer extend to the goods 
of the debtor, and shall be executed in the same manner in 
which the like writs have heretofore been executed. 



40 



GENEKAL PRACTICE. 



"Where 
issued. 

Preparation 
of writs. 



Teste of 
•writs. 



When 
returnable. 



Order to 
return writs. 



"Writs to 

compel 

appearance. 



Writs. 

Eule 229. All writs on the Crown side shall be issued at the 
Crown Office Department of the Central Office. 

Rule 230. Every writ shall be prepared by the solicitor or 
party suing out the same, and shall be written or printed on 
parchment. Every writ shall, before being sealed, be indorsed 
with the name and address of such solicitor or party ; and, if 
sued out by the solicitor as agent, with the name and address 
of the principal solicitor also. With the exception of writs 
of subpoena ad testificandum, all writs issued at the Crown 
Office shall be entered in a book to be there kept for the 
purpose. 

Eule 231. Every writ, except as hereinafter by these rules 
provided, shall bear date on the day on which the same shall 
be issued, and shall be tested at the Royal Courts of Justice, 
London, in the name of the Lord Chief Justice of England. 

Rule 232. Every writ, unless by these rules otherwise pro- 
vided, issued by the Queen's Bench Division, when returnable 
in Court, shall be made returnable forthwith in such division ; 
and such of the aforesaid writs as may be made returnable at 
chambers, shall be made returnable forthwith before a judge at 
chambers, unless otherwise ordered : provided that every writ 
of habeas corpus ad subjiciendum shall be made returnable imme- 
diately. 

Rule 233. Every order to return a writ shall require such 
return to be made within four days next after service of such 
order, if served in London or Middlesex, and within eight days 
in all other cases. Every writ returnable in Court shall, 
together with the return thereto, be hied in the Crown Office, 
and every writ returnable before a judge shall, after the decision 
of the judge thereon, be so filed, with the return and any order 
made thereon or a copy of such order ; provided that any writ 
of certiorari to remove inquisitions and depositions taken before 
a justice of the peace, or a coroner, upon the commitment of 
any person charged with any offence, shall, as soon as the 
Court or a judge shall have exercised their or his discretion 
thereon, be transmitted to the clerk of assize or clerk of the 
peace or other officer (as the case may be) of the county, 
borough, or place from which they have been received. 

Rule 234. Every writ to compel an appearance shall require 
the appearance to be entered in the Crown Office on a day 



PRACTICE UNDER CROWN OFFICE RULES, 1886. 41 

certain, and in case no appearance shall be entered at the end 
of four days, exclusive of the return day thereof, further 
process may issue to compel an appearance, which further 
process shall be tested on the return day of the previous 
process ; and every writ of capias ad satisfaciendum shall have 
eight days at least between such teste and return. 



Habeas Corpus. 
A. — Ad subjiciendum. 

Rule 235. An application for a writ of habeas corpus ad Application 
subjiciendum may be made to the Court or a judge. 

Rule 236. If made to the Court the application shall be by When made 
motion for an order, which if the Court so direct may be made ° our ' 
absolute ex parte for the writ to issue in the first instance ; or if 
the Court so direct they may grant an order nisi. 

Rule 237. If made to a judge he may order the writ to issue When made 
ex parte in the first instance, or may direct a summons for the ° JU ge ' 
writ to issue. 

Rule 238. Provided that no application for a writ of habeas In extradi- 
corpus on a warrant of extradition shall be made to a judge at lon cases ' 
chambers during the sittings. 

Rule 239. The writ of habeas corpus shall be served personally, Service of 
if possible, upon the party to whom it is directed ; or if not wri ' 
possible, or if the writ be directed to a gaoler or other public 
official, by leaving it with a servant or agent of the person 
confining or restraining, at the place where the prisoner is 
confined or restrained, and if the writ be directed to more than 
one person, the original delivered to or left with such principal 
person, and copies served or left on each of the other persons in 
the same manner as the writ. 

Rule 240. If a writ of habeas corpus be disobeyed by the Disobedience 
person to whom it is directed, application may be made to the to wn 
Court on an affidavit of service and disobedience for an attach- 
ment for contempt. In vacation an application may be made 
to a judge in chambers for a warrant for the apprehension of 
the person in contempt to be brought before him, or some other 
judge, to be bound over to appear in Court at the next ensuing 
sittings, to answer for his contempt, or to be committed to the 
Queen's prison for want of bail. 

Rule 241. The return to the writ of habeas corpus shall Return to 

writ . 



42 



GENERAL PRACTICE. 



Amendment 
of return. 

Proceedings 
in Court on 
return. 



Discharge of 
prisoner with- 
out return. 



Order to be 
drawn up and 
writ, return, 
&c. to be 
filed. 



contain a copy of all the causes of the prisoner's detainer indorsed 
on the writ, or on a separate schedule annexed to it. 

Rule 242. The return may be amended or another substi- 
tuted for it by leave of the Court or a judge. 

Rule 243. When a return to the writ of habeas corpus is 
made, the return shall first be read, and motion then made 
for discharging or remanding the prisoner, or amending or 
quashing the return. 

Rule 244. On the argument of an order nisi for a writ of 
habeas corpus, the Court may in its discretion direct an order 
to be drawn up for the prisoner's discharge, instead of waiting 
for the return of the writ, which order shall be a sufficient 
warrant to any gaoler or constable or other person for his 
discharge. 

Rule 245. Upon the argument before the Court on the return 
of a writ of habeas corpus, the party in whose favour judgment 
is given shall forthwith draw up an order in accordance with 
the decision of the Court at the Crown Office, and the writ, 
and return, and affidavits shall be filed there. When the order 
has been made by a judge at chambers, the writ, and return, 
with the affidavits and a copy of the judge's order, shall be 
forthwith transmitted to the Crown Office to be filed. 



Application 
for. 



Order to 
bring up 
prisoner as 
witness. 



Writs ad 
deliberandum 
and rccipias. 



Order of 
hearing 
counsel. 



B. — Other Writs of Habeas Corpus. 

Rule 246. Applications for writs of habeas corpus ad testifi- 
candum, ad respondendum, or ad deliberandum and rccipias, must 
be made on affidavit to a judge at chambers. 

Rule 247. An application to bring up a prisoner to give 
evidence on any cause or matter civil or criminal before any 
Court, justice, or other judicature may be made to a judge, on 
affidavit for an order. 

Rule 248. An application for habeas corpus ad deliberandum 
and rccipias shall be for two writs, the writ ad deliberandum to 
the gaoler to deliver the prisoner, and the writ rccipias to the 
other gaoler to receive him. 

Rule 249. When a prisoner is brought up by habeas corpus 
the counsel for the prisoner shall be first heard, and then the 
counsel for the Crown, and then one counsel for the prisoner in 
reply. 



PRACTICE UNDER CROWN OFFICE RULES, 1886. 43 



Attachment for Contempt. 

Rule 261. An application for an attachment for contempt Application 
shall be by motion for an order nisi. The service of an order 
nisi for an attachment shall be personal. 

Rule 262. Every writ of attachment for contempt shall bo When 
made returnable in the Queen's Bench Division on a day certain 
during the sittings. In case of a return of non est inventus 
thereon, one or more writs may issue tested on the return day of 
the previous writ. 

Rule 26o. If the sheriff returns cepi corpus, on application at Habeas corpus 
the Crown Office, an order shall be drawn up for a writ of ^"^ 
habeas corpus to issue to bring in the body of the defendant. 

Rule 264. When the defendant is brought before the Court Interroga- 
on the attachment, a motion may be made by the prosecutor, or ones ' 
if he does not make it, by the defendant, that he may be sworn 
to answer such questions or interrogatories as may be put to him 
by the prosecutor, and must give such bail to answer them before 
the Queen's coroner and attorney, or the Master of the Crown 
Office, as the Court may think fit, and for the Master to proceed 
to examine the matter and report to the Court thereon. 

Rule 265. In default of bail the defendant shall be committed Committal to 
to the Queen's prison, but if at any time after he be prepared default of 
to give it, he may be brought before the Court or a judge on bail - 
an order on the person in whose custody he is, which order 
shall be drawn up on application at the Crown Office for that 
purpose. 

Rule 266. On the defendant being sworn an order may be Order to file 
drawn up at the Crown Office, and served on the prosecutor to "ories°° a " 
file interrogatories within four days after the service thereof. If 
no interrogatories are filed at the end of the fourth day, on 
obtaining a certificate from the Queen's coroner and attorney, 
or Master of the Crown Office to that effect, the defendant 
shall be discharged out of custody by an order of the Court or 
a judge. 

Rule 267. The answers to the interrogatories shall be signed Answers to 
by the defendant and also acknowledged by him before any tories°° a " 
commissioner to administer oaths in the Supreme Court of 
Judicature. 

Rule 268. On an intimation to one of the parties that the Master's 
Master is prepared with his report, a motion may be made on a report - 



44 



GENEEAL PEACTICE. 



Defendant to 
be present on 
Master's 
report. 



Notice to 
defendant to 
appear on 
report. 



Defendant in 
contempt. 



Procedure on 
tentence. 



Order for 
sentence. 



Costs when 
defendant 
not guilty. 



Counsel to 
sign interro- 
gatories. 

Disallowance 
of irrelevant 
questions. 



"Writ to be 
opened, &c. 
in open 
Court. 



four days' notice to be served on the other party, that the Master 
on a day certain do make his report to the Court. 

Rule 26'9. The defendant shall he present in Court on the 
Master's, report being made* if he be in the Queen's prison 
under process from the High Court, an order may be drawn up 
on application at the Crown Office for the governor of the 
Queen's prison to bring him into Court ; but if he be in custody 
in any other prison, or under process from any other Court, the 
order shall be for a writ of habeas corpus, which order may be 
drawn up in like manner and such writ issued thereon. 

Rule 270. If the defendant be out on bail, the prosecutor 
shall, if possible, give notice to the defendant and his bail that 
the defendant is required personally to attend the Court on the 
report, and that if he does not so attend the Court will be moved 
to estreat the recognizance. 

Rule 271. If the defendant be reported in contempt, the Court 
after hearing the parties on the report may either pronounce 
sentence at once or commit him to the Queen's prison until 
some future day for that purpose, when an order shall be drawn 
up at the Crown Office directing the governor of the Queen's 
prison to bring the defendant into Court. 

Rule 272. On proceeding to sentence, affidavits in mitigation 
or aggravation may be read, and the defendant or his counsel 
heard, and the prosecutor's counsel be heard in reply. 

Rule 273. If the defendant be sentenced to imprisonment, the 
order for sentence shall be lodged with the gaoler of the prison 
to which he is committed. 

Rule 274. If the defendant is reported not to be in contempt, 
the Court may order him and his recognizances to be dis- 
charged, and with costs if the Court shall be of opinion that 
the prosecutor's complaint was groundless, and the attachment 
vexatious. 

Rule 275. All interrogatories in writing on attachments shall 
be signed by counsel. 

Rule 276. It shall be lawful for the Queen's coroner and 
attorney or the Master of the Crown Office to disallow any 
question or interrogatory that he considers irrelevant or other- 
wise improper. 

De Contumace Capiendo — Excommunicato Capiendo. 

Rule 277. On a writ of de contumace or de excommunicato 
capiendo being issued, it shall be handed to the Queen's coroner 



PEACTICE UNDER CROWN OFFICE RULES, 1886. 45 

and attorney, or Master of the Crown Office (in open Court 
during the sittings, to he opened and indorsed and sent to the 
Crown Office) and the prosecutor's solicitor may then apply at 
the Crown Office for the writ and 'shall lodge it with the sheriff 
for execution. 

Rule 278. On a return by the sheriff that he has taken the Application 
defendant, an application may he made to the Court on behalf 
of the defendant, for an order nisi to set aside the proceedings 
for irregularity or insufficiency, or for a writ of habeas corpus 
to bring up the defendant to be discharged for the want of 
sufficiency in the writ. 

Rule 279. If the sheriff returns non est in rent us the prosecutor Capias super 
may issue a writ of capias super contumace capiendo with a penalty ^"J","^ 6 
of 10/., which shall be tested on the return day of the contumace 
capiendo and made returnable two months after the teste. If 
return be made to the writ of capias that the defendant has not 
yielded himself to prison, an alias wait of capias with an increased 
penalty of 20/. may be issued by the prosecutor in like manner, 
and so on until the defendant has yielded himself to custody, 
where he shall remain without bail or mainprize as if he had 
been taken on the original writ. 



Articles of the Peace. 

Rule 280. An application for leave to exhibit articles of the Application 
peace in the Queen's Bench Division, and for an attachment e xhi it ° t0 
thereon, shall be made ex parte to a Divisional Court by motion 
for an order absolute in the first instance. 

Rule 281. Upon the motion being made the exhibitant shall Exhibitantto 
be sworn or affirmed to the truth of the articles by the Alaster ^ e s "^ oni m 
in Court, and the articles shall then be handed in and read 
by him. 

Rule 282. The writ of attachment shall be issued from the Writ of 
Crown Office, and may be directed to the sheriff of any county atta( ^ nm ent. 
.in which the defendant may be found, and shall be made 
returnable on a day certain. 

Rule 283. After the return day on application at the Crown Order to 
Office the prosecutor may obtain an order to return the writ. return writ. 

Rule 284. On a return of " non est inventus" the subsequent Proceedings 
proceedings shall be the same as provided by the rules on on return of 
attachment for contempt up to capture. inventus. 



46 



GENERAL PRACTICE. 



Habeas corpus 
on return of 
eepi corpus. 



Motion for 
security for 
the peace. 

Mitigation. 



The recog- 
nizance. 



Bringing up 
defendant 
upon finding 
bail. 



Certiorari to 

remove 

articles. 



Application 
by defendant 
for certiorari. 



Proceedings 
on the 
argument. 



Eule 285. On a return of cepi corpus, an order for the issuing 
a writ of habeas corpus to bring in the body may be obtained by 
the prosecutor by application at the Crown Office. 

Eule 286. On the sheriffs bringing in the body counsel may 
move that the defendant be ordered to find security for the 
peace. 

Eule 287. On the motion for security the articles must be 
read in the presence of the defendant in Court, and the 
defendant may file affidavits in mitigation and be heard by 
himself or counsel upon them, or upon the articles, but may not 
contradict the truth of the matters stated in the articles. 

Eule 288. The amount and conditions of the recognizance 
and period during which the security shall extend must be 
settled by the Court itself, and if the defendant is unable to 
find bail the prosecutor must draw up an order for his com- 
mittal to the Queen's prison until he finds the required bail. 

Eule 289. Upon finding the required bail the defendant, on 
application on his behalf at the Crown Office, may obtain an 
order to bring up the defendant either before the Court or a 
judge at chambers to enter into the recognizance and obtain 
his discharge. 

Eule 290. To remove articles of the peace originally exhibited 
at the assizes, or sessions of the peace, in order that an attach- 
ment may be issued upon them, an order for a writ of certiorari 
as of course may be obtained by the prosecutor on application at 
the Crown Office. 

Eule 291. An application on behalf of a defendant for a writ 
of certiorari to remove articles of the peace originally exhibited 
at the assizes or sessions of the peace to quash the articles, and 
if the defendant be in custody for a writ of habeas corpus to 
bring up and discharge him or his recognizance, shall be made 
to a Divisional Court by motion for an order nisi. 

Eule 292. On the argument of the order the Court will either 
discharge the defendant and his recognizance or commit him to 
the Queen's prison until he find the required bail as if the 
articles had been originally exhibited in the Queen's Bench 
Division. 



ISSUE OF WARRANTS AND EXECUTION OF WRITS. 47 

Procedure generally as to the Issue of Warrants and Execution 

of Writs. 

" When a writ is directed to the sheriff it should, after it has Delivery of 
been issued, be taken to the sheriff or deputy sheriff's office, with ^ecut^jn 
instructions to give a warrant for its execution to the officer, if 
any, whom you wish to execute it. In a county paiatine writs 
are delivered to the sheriff in the same way as in other counties. 
It is no part of the duty of a sheriff's officer to receive writs for 
execution from the parties, and a clerk of the sheriff's officer has 
no authority to receive a writ." 14th ed. Chit. Archb. Practice 
of the Queen's Bench, p. 807 ; and see authorities there quoted 
as to a solicitor's liability to the sheriff for giving wrong direc- 
tions, whereby goods of a third person are seized. The above 
mode of delivery of writs for execution also applies to writs on 
the Crown side. 

To further quote the above work — " The sheriff himself, when The wan-ant. 
the writ is directed to him, may personally execute it, and so 
may his under-sheriff, without warrant ; but to enable any other 
party to do so, there must be a warrant directed to him from the 
sheriff for that purpose. The warrant is an order from the Contents of 
sheriff to his officer to execute the writ, so that the sheriff may warrant - 
obey the order of the Court as contained in it. It would seem 
that the warrant should be in writing. The person to whom 
this warrant is directed is in general a bound bailiff, that is, a 
bailiff usually bound with sureties in an obligation for the due 
execution of his office. But it may be directed to a special 
baliff nominated by the execution creditor or his solicitor. The 
warrant should be directed to the officer who is to execute the 
writ ; but it seems that it may be directed to the chief bailiff 
of a liberty and his deputies, as there may be known deputies 
within the franchise, and the sheriff may make them his bailiffs 
without further describing them. A variance between the writ 
and warrant will not, it seems, affect the validity of the execu- 
tion of the writ. The warrant need not specify the Court out 
of which the writ issued." A sheriff should not issue blank Should not be 
warrants, and the warrant should not be altered after it is issued. noStered* 1 * 
" The sheriff must not make out the warrant until he has the after issue - 
writ in his actual possession. If he does, and the writ be exe- made before 

cuted, he will be subject to an action, and the execution will be shci ? ff ^ as 
.. . ' received writ. 

invalid. The warrant should be delivered to the officer to whom 
it is directed. It may be delivered to him on a Sunday. He 



48 



GENERAL PRACTICE. 



Party named 
in warrant 
should 
execute the 
writ. 



"Writ when, 
where, and 
how executed, 
when directed 
to sheriff. 



When 
executed. 



is not justified in executing the writ before the warrant is 
delivered to him." 

" The officer named in the warrant should execute the writ. 
It is not necessary, however, that the officer to whom the warrant 
is directed should be the person who actually executes the writ, 
or even be within sight when it is executed ; but he must be 
acting in its execution ; he cannot go upon another business, or 
stay at home and send a third person to execute it." (See 
forms of warrant under the various writs.) 

"It is the duty of the sheriff to execute the writ when directed 
to him within a reasonable time after he receives it for execu- 
tion, and if he omits doing so an action may be maintained 
against him by the party suing out the writ ; but in order to 
sustain such action in the case of fi. fa., actual damage arising 
from the neglect must be proved. In the case of ca. sa., it 
appears such action would lie without any proof of actual 
damage (a). The sheriff is also liable to attachment if he omit 
to execute the writ. If the sheriff has several writs in his hands 
against the same person, he is bound to execute them all, giving 
priority to each in the order in which they came into his hands." 
(See also " Writ of Fieri Facia* " and " Writ of Elegit," post, 
pp. 63, 113.) "But though the sheriff has a reasonable time 
for executing the writ, that does not excuse him in refusing to 
execute it when he has the opportunity, if required to do so, 
and nothing occurs to prevent him ; and therefore, for such a 
refusal, an action may also be supported against him. The 
writ, when directed as above, may be executed at any time 
before it is returnable, and while it is in force." (As to how 
long a Avrit of execution remains in force, see R. of S. C. 1883, 
Ord. XLII. rr. 20 and 21, ante, pp. 25, 26.) "If the writ be 
made returnable on a particular day, it may be executed at any 
time of such day." (As to the time when it may be executed, 
see under titles " Writ of Fieri Facias " and " Arrest," post, 
pp. 62, 176.) " If a bailiff execute a writ before it comes to 
the sheriff's hands, or before the warrant is made on it, the bailiff 
is a trespasser. The sheriff should not execute the writ after 
it has been countermanded, otherwise he will be liable in 
trespass" (b). 



(a) But according to the same authority (14 Chit. Archb.) actual 
damage must be proved in the case of an order to arrest. 

(6) Moreover, notice from the plaintiff's solicitor to the bailiff charged 



PROCEDURE AGAINST SHERIFFS, ETC. 49 



Procedure against Sheriffs, &c. for not Executing Writs. 

" It seems clear in the general reason of the law — which Procedure 
gives all Courts of Record a kind of discretionary power over B heri£fe, &o. 
all abuses by their own officers in the administration or execu- ior not ex ?" 

f cutmg writs. 

tion of justice, which bring a disgrace on the Courts themselves, 
as not taking sufficient care to prevent them — that, whenever it 
shall appear that any such officers have been guilty of any 
corrupt practice in not serving any writ — as where they refuse to 
do it unless paid an unreasonable gratuity from the plaintiff, 
or receive a bribe from the defendant, or give him notice to 
remove his person or effects in order to prevent the service of 
any writ — the Court which awarded it may punish such offences 

in such manner as shall seem proper by attachment, &c 

But if there neither appears to be any palpable corruption in 
the case nor particular obstinacy, as by disobeying a special rule 
of the Court in relation to the service of such writ, nor other 
extraordinary circumstance of wilful negligence, the judgment 
whereof is to be left to the discretion of the Court, it seems not 
to be usual to grant an attachment in such cases, but to leave 
the party to his ordinary remedy against the officer." Hawkins' 
Pleas of the Crown, vol. 2, c. 22, s. 2. 

As to the sheriff's liability for delay in putting a writ of Sheriff's lia- 
execution in force, see Clifton v. Hooper, 6 Q. B. 468 ; 14 L. J. delay in exe- 
Q. B. 1 ; Hughes v. Bees, 4 M. & TV. 468 ; White v. Chappie cuti »s ™it. 
and Others, 4 C. B. 628 ; 16 L. J. C. P. 233 ; Jupp v. Cooper, 
5 C. P. D. 26; Chapman v. Maddkon, 2 Str. 1089; Reg. v. 
Sheriff of Corn wall, in Hemming v. Tremera, 7 D. P. C. 606, and 
Wilton v. Chambers, 1 H. & TV. 582 ; see also In re Bryant, 4 
Ch. D. 98 ; Ex parte Langley, Ex parte Smith, In re Bishop, 13 
Ch. D. 110 ; and Rex v. Middlesex {Sheriff ), 1 D. P. C. 53. A 
sheriff who has exercised reasonable diligence in the execution 
of a writ is not, however, liable to an action because he did not 
use extraordinary exertion, or provide against an unexpected 
and unforeseen contingency. Hodgson v. Lynch, 5 Ir. R. C. L. 
353, C. P. 

Moreover, so long as a judgment exists it protects those who 



with a warrant under a ca. sa. that it is withdrawn is sufficient to render 
the latter liable for an arrest; and, semble, is notice to the sheriff (Futcher 
v. Hinder, 28 L. J. (N. S.) Exch. 28 ; 3 H. & N. 757). 

M. E 



50 GENEEAL PRACTICE. 

seize the property under an execution founded on it, and if the 
judgment and execution are set aside no action can be main- 
tained against the sheriff for anything he did under such 
judgment while it remained in existence. Ives v. Lucas, 1 C. & 
P. 7. 

And see under title "Appointment of Sheriff and his Officers 
(Bailiffs and Franchises)," ante, pp. 13, 18, and under title 
" Liability and Eights of Sheriff and Remedies against Sheriff," 
post, pp. 493 et seq. 



Chapter IV. 



51 



WRIT OF FIERI FACIAS. 



Introductory - 

Forms of Writ - 

Indorsements on the Writ of Execution 

Warrant ----- 

Time of Execution - - - - 

Place of Execution - - - - 

Several Writs — Priority of Execution 
Concurrent Writs ------ 

Successive Writs - - - - 

Seizure ------ 

What Seizable and not Seizable 



(1 
(2 
(3 
(4 

(5 
(6 
(7 
(8 

(9 
(10 

(11 
(12 
(13 
(14 
(15 
(10 
(17 
(18 
(19 



Goods of Ambassadors - 

Money, Bank Notes, 8fc. - - - - 

Aetna/ Necessaries under 5/. - 

Soldiers' Accoutrements - 

Pail/ray Polling Stock - 

Goods on Hire ------- 

Goods in Possession of Debtor as Bailee - 
Debtors' Goods in Pledge - - - - 

Pawnbroker* Interest in Pledges - - _ 

Goods in Possession of Debtor in Peprescntati 
Capacity ------ 

Z&w _______ 

Shipping Property ----- 

Farming Stock ------ 

Fixtures ------- 

Goods soA/ /;// Execution Debtor prior to Seizure 

Leasehold Interest - 

Equity of Redemption - - - - - 

Partnership Property- - 

Goods of Married Women - - - - 



PAGE 

- 52 

- 53 

- 57 

- 61 

- 62 

- 63 

- 63 

- 65 

- 66 

- 66 

- 70 

- 71 

- 71 

- 73 

- 73 

- 73 

- 73 

- 73 

- 73 



ve 



Stay of Execution 



74 
75 
75 
76 
76 
76 
78 
78 
79 
7!) 
80 



e2 



52 WEIT OF FIERI FACIAS. 

PAGE 

Death of Parties - 81 

Withdrawal from Possession - 81 

Incidental to Seizure -------82 

Duties of Sheriff on receipt of Notice of Receiving Order - 83 

Sale - 84 

Reporting Result of Execution, Return, and accounting for 

Proceeds --------- 87 

Forms of Return - 94 

Fees 98 



Introductory. 

The writ of fieri facias is a writ of execution against the goods 
and chattels of the party against whom the judgment is 
recovered, and is the first of the writs of execution enumerated 
in Ord. XLII. r. 8 of the Eules of Supreme Court, 1883. 
See Ord. XLII., especially Rules 8 and 17, and the Crown 
Office Rules, 1886, r. 224, in the preceding Chapter; and see 
also 13 Edw. I. (Writ Sec), st. 1, c. 18. It derives its name 
from the words of the writ " quod fieri facias de bonis" and 
directs the sheriff to levy on the goods and chattels of the 
judgment debtor. It therefore differs from the writ of elegit, 
under which the sheriff takes the lands and hereditaments of 
the judgment debtor, as to which, see %)ost, p. 99. 
Issue of more The execution creditor is entitled, under Ride 224, Crown 
an one wn . Qfg ce R u i eS) 1886, to issue more than one writ of fi.fa., and so 
may issue writs to the respective sheriffs of different counties 
concurrently ; but he must be careful to avoid double execution 
(Lee v. Dangar, [1892] 1 Q. B. 231 ; affirmed 8 T. L. R. 494; 
[1892] 2 Q. B. 337 ; 61 L. J. Q. B. 780 ; 66 L. T. 548 ; 40 
W. R. 469 ; 56 J. P. 678) ; and see the subject discussed post, 
p. 63, under the sub-heading " Several Writs." 
Separate writs It will be observed that Rule 18 of Ord. XLII. provides that 
for fobt^and " Upon an y judgment or order for the recovery or payment of 
costs. a sum of money and costs, there may be, at the election of the 

party entitled thereto, either one writ or separate writs of 
execution for the recovery of the sum and for the recovery of 
the costs, but a second writ shall only be for costs, and shall be 
issued not less than eight days after the first writ." The object 
of this rule appears to be to enable the judgment creditor to 
issue execution immediately after obtaining judgment, without 



INTRODUCTORY. 53 

waiting for taxation of costs. Harris v. Jewell, "W. N. (1883) 
216. 

The writ should be delivered to the sheriff for execution, and 
not to the sheriff's officer, as it is no part of the duty of the 
latter to receive writs. Triminger v. Keen, "W. N. (1882) 106, 
before Jessel, M. R., and Lindley, L. J. 

Rule 15 of Ord. XLII. enables the party entitled to execution Expenses of 

, i i f i <• i' j execution. 

to levy poundage, tees, and expenses ot execution over and. 
above the sum recovered. Bee post, under the heading "Sheriff's 
Fees, &c." 

Rules 20 and 21 provide for renewal of writ. See ante, Renewal of 
p. 25. Sheriffs must be careful not to execute writs more 
than a year old without evidence of renewal. 

By Rule 22, "As between the original parties to a judgment Execution to 

, .. . . ,. ..,.. P issue within 

or order, execution may issue at any time witnm six years irom s i x years. 
the recovery of the judgment, or the date of the order " (a). 

Rule 14 requires every writ to bear date of the day on which Date of writ, 
it is issued. 

Forms of Writ. 

1. Writ of Fieri Facias (Form No. 1, App. H. of E. S. C. 1883). 

18 . [Here put the letter and number.'] 
In the High Court of Justice, 
Division. 

Between A. B Plaintiff, 

and 

CD Defendant. 

Victoria, by the grace of God, of the United Kingdom of Great 
Britain and Ireland Queen, Defender of the Faith. 
To the Sheriff of greeting : 

"We command you that of the goods and chattels of C. D. in your 
bailiwick you cause to be made the sum of £ , and also in- 

terest thereon at the rate of £ per centum per annum from 

the day of , which said sum of money and interest were 

lately before us in our High Court of Justice in a certain action [or 
certain actions, as the case may be], wherein A. B. is plaintiff and 
C. D. defendant [or in a certain matter there depending intituled 
"In the matter of E. F.," as the case may be], by a judgment [or 
order, as the case may be] of our said Court, bearing date the 
day of , adjudged or ordered, as the case may be] to be paid 

by the said C. D. to A. B., together with certain costs in said judg- 
ment [or order, as the case may be] mentioned, and which costs have 
been taxed and allowed by one of the taxing officers of our said 
Court at the sum of £ , as appears by the certificate of the said 

(a) There is a similar provision in Rules 220 and 227 of the Crown Office 
Rules, 1886. 



54 WEIT OF FIERI FACIAS. 

taxing officer, dated the day of . And that of the goods 

and chattels of the said C. D. in your bailiwick you further cause 
to be made the said sum of £ [costs], together with interest 

thereon at the rate of £4 per centum per annum from the day 

of , and that 3 r ou have that money and interest before us in 

our said Court immediately after the execution hereof to be paid to 
the said A. B. in pursuance of the said judgment \_or order, as the 
case may be']. And in what manner you shall have executed this our 
writ make appear to us in our said Court immediately after the 
execution "thereof, and have there then this writ. 
"Witness, &c. 

2. Fieri Facias on Judgment removed from Lord Mayor 's Court (Form 
No. 15, App. H. of E. S. C. 1883). 

[Heading as in Form 1.] 

Victoria, by the grace of Cod, &c. To the Sheriff of 
greeting : 

Whereas by the judgment of the Mayor's Court of London, signed 
on the day of , 18 , it has been adjudged that the said 

recover against the said £ and £ costs. 

And whereas by the Mayor's Court of London Procedure Act, 1857, 
any writ of execution upon the final judgment obtained in the 
Mayor's Court is directed to be sealed in any of the Superior Courts, 
and it is declared that thereupon such writ of execution or judgment 
shall become and be of the same force, charge, and effect as a writ 
of execution or judgment recovered in such superior Court, and that 
all the reasonable costs and charges attendant upon such sealing shall 
be recovered in the same manner as if the same were part of such 
judgment. 

And whereas the costs attendant upon sealing the writ of execution 
herein in our High Court of Justice have been allowed at the sum 
of £1 : 6s. Od. 

Therefore we command you, that of the goods and chattels of the 
said in your bailiwick, you cause to be made the said several 

sums, with interest thereon, at the rate of £4 per centum per annum, 
from the said day of , 18 , and that you have that 

money and interest before us in our said Court immediately after 
the execution hereof, to be rendered to the said . And in 

what manner you shall have executed this our writ make appear to 
us in our said Court immediately after the execution hereof, and 
have there then this writ. 

Witness, &c. 

Levy £ and £ for costs of execution, &c, and also 

interest on £ at £4 per centum per annum from the 

day of , 18 , until payment; besides sheriff's poundage, 

officer's fees, costs of levying, and all other legal incidental 
expenses (b). 

This writ was issued by of , agent for , solicitor 

for the 

The is a and resides at in your bailiwick. 

(b) As to "incidental expenses," see Hutchinson v. Humbert, 10 L. J. 
(N. S.) Exch. 413 ; 8 M. & W. 638 ; 1 Dowl. P. C. (N. S.) 78. 



FORMS OF WRIT. 00 

3. Writ of Fieri Facias on Order for Costs (Form No. 138 of 

C. 0. E. 1886). 

Victoria, by the grace of God, &c. To the Sheriff of 
greeting : 

We command you that of the goods and chattels of A. B. in your 
bailiwick, you cause to be made the sum of £ for certain costs 

which by an order of the Queen's Bench Division of Our High Court 
of Justice, dated the day of , 18 , were ordered to be 

paid by to , and which have been taxed and allowed at 

the said sum, as appears by the allocatur of one of the taxing 
masters, together with interest on the said sum at the rate of £4 
per centum per annum from the day of , 18 (c), and 

that you have the said money before Us in Our said Court imme- 
diately after the execution hereof to be rendered to the said 
for his costs as aforesaid. And how you shall have executed this Our 
writ then and there make known to Us in Our said Court immediately 
after the execution thereof, and have then there this Our writ. 

Witness, &c. 

(7o be indorsed.') 

Levy £ and £ for costs of execution, &c, and also 

interest on £ at £4 per centum per annum, from the 

day of , 18 , until payment, besides sheriff's poundage, 

officer's fees, costs of levying and all other legal incidental expenses. 

This writ was issued by M. N., of L., agent for Gr. H., of Y., 
solicitor for who resides at 

The within-named A. B. is a , and resides at in your 

bailiwick. 

4. Writ of Fieri Facias on Judgment with Order for Costs (d) (Form 

No. 139, C. 0. E. 1886). 

Victoria, by the Grace of God, &c. To the sheriff of greeting : 
We command you that of the goods and chattels of in 

your bailiwick you cause to be made the sum of , and also 

interest thereon, at the rate of £4 per centum per annum from 
the (c) day of ,18 , which said sum of money and 

interest were lately before Us, in the Queen's Bench Division of 
Our High Court of Justice, in a certain (e) wherein A. B. is 

the prosecutor [or as the case may be~] and C. D. the defendant, by 
a (/) of Our said Court, bearing date the day of , 

18 (g), to be paid by the said to for costs in the 

said (/) mentioned, and which costs have been taxed and 

allowed at the sum of , as appears by the allocatur of one of 

the taxing-masters, dated the day of , 18 . And that 

you have that money and interest before Us in Our said Court 

(c) Date of judgment or order. 

('/) This writ must be so moulded as to follow tho substanco of the 
order or j udgment. 

(e) Indictment, information (in the nature of a quo warranto), action 
of mandamus, or matter there depending, intituled "In the Matter of," 
&c, or as the case may be. 

(/) "Judgment" or "order." 

(g) "Adjudged," " awarded," or " ordered." 



56 WRIT OF FIERI FACIAS. 

immediately after tile execution hereof, to be paid to the said 

in pursuance of the said (h) . And in what manner you shall 

have executed this Our writ, make known to Us in Our said Court 

immediately after the execution thereof. And have there then this 

writ. 

Witness, &c. 

[Indorsement as in No. 3.) 

5. Writ of Fieri Facias on an Order of Quarter Sessions removed into 
the Crown Side of the Queen's Bench Division (Form No. 140, 
C. 0. B. 1886). 

Victoria, by the Grace of God, &c. To the sheriff of greeting : 
We command you that of the goods and chattels of C. D. in your 
bailiwick you cause to be made the sum of (£50) for certain costs 
which, by an order of the general quarter sessions of the peace 
holden in and for the said county of on the day of 

made in a certain appeal, wherein A. B. was appellant, and the said 
C. D. was respondent, were adjudged to be paid by the said C. D. 
to the said A. B., and which order of quarter sessions was after- 
wards, on the day of , removed into the Queen's Bench 
Division of Our High Court of Justice by virtue of an order of the 
Honourable Mr. Justice , made the day of , 1 8 , 
in pursuance of the statute in such case made and provided, and the 
costs attendant upon the application for the said last-mentioned 
order, and upon the said removal were, on the day of , 
18 , taxed and allowed at the sum of (£9), as appears by the 
allocatur of one of the taxing masters dated the day of , 
1 8 . And We further command you that of the goods and chattels 
of the said C. D. in your bailiwick you further cause to be made 
the said sum of (£9) together with interest at the rate of £4 per 
centum per annum from the said day of (7), and that 
you have that money and interest before Us in Our said Court imme- 
diately after the execution hereof, to be paid to the said A. B. in 
pursuance of the said orders. And in what manner you shall have 
executed this Our writ make known to Us in Our said Court imme- 
diately after the execution thereof, and have then there this writ. 
Witness, &c. 



6. Writ of Fieri Facias for a Fine (Form No. 145, C. 0. E. 1886). 

Victoria, by the Grace of God, &c. To the sheriff of greeting : 
We command you that of the goods and chattels, lands and tene- 
ments of A. B. , you cause to be levied pounds, imposed upon him 
in the Queen's Bench Division of Our High Court of Justice before 
him for his fine, for certain whereof he is impeached (or 
indicted), and thereupon, by a certain jury of the country (or by 
his own default, or confession), he stands convicted, as in Our Court 
before Us it appears upon record. And that you have the said 



h) " Judgment " or " order. 
i) The date of the order. 



FORMS OF WRIT. 57 

money before Us in Our said Court immediately after the execution 
thereof to satisfy Us for the said fine, and that you then have 
there this writ. 
Witness, &c. 

7. Writ of Fieri Facias against a Married Woman (J). 

Victoria, &c. 

We command you that of tho goods and chattels of A. B. (being 
her separate property not subject to any restriction against antici- 
pation as hereinafter mentioned) in your bailiwick, you cause to be 
made the sum of £ and £ costs, and also interest thereon 

at the rate of £ per centum per annum from the \_date of 

judgment], winch said sums of money and interest were lately before 
Us in Our High Court of Justice in a certain action \_or matter] 
there depending, wherein \_partie£ names] by a judgment of Our 
said Court bearing date the , adjudged to be paid by the said 

A. B. to out of her separate property not subject to any 

restriction against anticipation (unless by reason of section 19 of 
the Married Women's Property Act, 1882, the property should be 
liable to execution notwithstanding such restriction), and that you 
have that money, &c. [_as in the first Form~\. 



Indorsements on the Writ of Execution. 

Under the Statute of Frauds (29 Car. II. c. 3), sect. 16, it is Sheriff, &c. to 
the duty of the sheriff, under-sheriff, and coroners, and their ^^datTof 
deputies and agents, upon the receipt of any wait of execution delivery, 
(without fee for doing the same), to indorse upon the back 
thereof the day of the month and year whereon they received 
the same. The reason for this enactment is that the writ binds 
the goods of the debtor from the date of its delivery to the 
sheriff for execution. 

For the same reason, sect. 10, sub-sect. 1, of the Sheriffs Act, Sheriff to give 
1887 (50 & 51 Vict. c. bb), further provides that "a sheriff, at SSJ&S 
the request of a person delivering a wait to him for execution, quired, 
shall give a receipt for that writ, stating the day of its 
delivery." 

To enable sheriffs and their officers to ascertain whether writs 
delivered to them for execution are regular on the face of them, 

(j) The form of this writ, for which the author is indebted to the 
Annual Practice for 1891, is drawn up from the form of judgment settled 
by the Court of Appeal in Scott v. Mark >i. 20 Q. B. D. 132; 57 L. J. Q. B. 
43 ; 57 L. T. 919 ; 36 W. E. 07 : b2 J. P. 230. 



58 



WEIT OF FIEEI FACIAS. 



Indorsement 
on writ of 
execution. 



Amount of 
money and 
interest to be 
recovered to 
be indorsed. 



Liability of 
execution 
creditor and 
bis solicitor 
for mistake in 
filling - up 
indorsement. 



the Rules of the Supreme Court dealing with the indorsements 
are set out, but, except as to indorsing the date of delivery, it is 
no part of the duty of a sheriff or his officers to add to, alter, or 
amend the writ or its indorsements in any way whatever. 

By Eule 13 of Ord. XLIL, " Every writ of execution shall 
he indorsed with the name and place of abode or office of 
business of the solicitor actually suing out the same, and when 
the solicitor actually suing out the writ shall sue out the same 
as agent for another solicitor, the name and place of abode of 
such other solicitor shall also be indorsed upon the writ ; and in 
case no solicitor shall be employed to issue the writ, then it shall 
be indorsed with a memorandum expressing that the same has 
been sued out by the plaintiff or defendant in person, as the 
case may be, mentioning the city, town, or parish, and also the 
name of the hamlet, street, and number of the house of such 
plaintiff's or defendant's residence, if any such there be." By 
Rule 14, " Every writ of execution shall bear date of the day 
on which it is issued." By Rule 16, " Every writ of execution 
for the recovery of money shall be indorsed with a direction to 
the sheriff, or other officer or person to whom the writ is 
directed, to levy the money really due and payable and sought 
to be recovered under the judgment or order, stating the amount, 
and also to levy interest thereon, if sought to be recovered, at 
the rate of 41. per cent, per annum from the time when the 
judgment or order was entered or made ; provided that, in cases 
where there is an agreement between the parties that more than 
41. per cent, interest shall be secured by the judgment or order, 
then the indorsement may be accordingly to levy the amount of 
interest so agreed." 

A/?, fa., whereby the sheriff is directed to levy a sum different 
in amount from that mentioned in the judgment, although 
smaller, is irregular, unless the reason of the variance is shown 
on the face of the writ. Webber v. Eutchins, 8 M. & W. 319 ; 
1 D. N. S. 95. 

The date from which the interest runs must be filled in. As 
to what is the proper date, see Bomell v. Coaks, 57 L. J. Ch. 
101 ; Pt/man v. Burt, "W. N. (1884) 100. 

It is desirable that the writ should also be indorsed with a 
description of the judgment debtor and his place of abode. It 
is the duty of the solicitor for the judgment creditor to fill up 
the form in this respect ; should he do so incorrectly, and 
thereby mislead the sheriff, he and his client will be liable for 



INDORSEMENTS ON TTIE WRIT OF EXECUTION. 59 

the consequences. In Lee v. Rumilly (55 J. P. 519; 7 T. L. R. 
303), Kay, L. J., said that it was quite settled that it was the 
duty of the execution creditor to fill up the indorsement form 
attached to the writ, and that for any mistake in filling up the 
indorsement, which misled the sheriff, where the mistake was 
made by the solicitor of the execution creditor, not only the 
solicitor, but the execution creditor, was liable. But it is no 
part of the solicitor's duty to interfere with the sheriff in the 
performance of his duty, as, for example, by giving verbal 
directions, or directions as to the ownership of particular goods, 
and for such conduct on the part of the solicitor, his client will 
not be held responsible, unless he has expressly authorized it. 
Smith v. Keal, 9 Q. B. D. 340. "Now, it is clear it is no part 
of his (/. e., the solicitor's) duty to interfere with the sheriff in 
the performance of his duty. It is the sheriff's duty to levy 
execution on the goods of the judgment debtor. If, therefore, 
the solicitor interferes, and directs the sheriff to levy on the 
goods of another person, he is answerable on the same principle 
as anyone else who directs a trespass. Though the sheriff is 
an officer of the law, he is liable if he commits a trespass, and 
anyone who joins in the trespass is equally liable." Per 
Jessel, H. R., at p. 351 of the report of Smith v. Keal, 9 

a b. d. 

In all cases, whether the solicitor and his client are liable or 
not, the sheriff is liable for any trespass he may commit, unless 
he protects himself by interpleader proceedings, as to which see 
under title " Interpleader," post, p. 378. 

The following cases bear upon this subject : — 

Father and son bore the same name, and &fi.fa. was issued 
against the son, without the addition of the words " the 
younger." The sheriff levied on the goods of the father, who 
brought an action for trespass against the sheriff and the judg- 
ment creditor. It was held that, though the father was prima 
far io intended, such prima facie intendment might be rebutted, 
and the sheriff made liable by showing that the judgmeut was 
obtained, and the writ issued, against the son, and further that 
the judgment creditor was liable, his attorney having wrongly 
indorsed the writ. Jarmain v. Hooper, 7 Scott, N. R. G63 ; 1 
D. & L. 769 ; 13 L. J. C. R. 63. 

A. lodged with the sheriff aji.fa., in the indorsement of which 
the execution debtor was described as of a place at which he 
carried on business in partnership with others. Held, that by 



60 WRIT OF FIERI FACIAS. 

the indorsement A. had directed the sheriff to levy on the goods 
at that place. Lane v. Sterne, 10 W. R. 555. 

The defendant issued execution against one Law, and delivered 
the writ to the sheriff, whose officer, doubting about the goods, 
requested and obtained an interview with the managing clerk of 
the defendant's solicitor. The latter informed the officer that 
he believed Law had a share in a brewery, which was the address 
indorsed on the writ, and that the officer had better seize there ; 
he did so, and took goods belonging to the plaintiff, who brought 
this action against the defendant, the judgment creditor, for 
trespass. The plaintiff was nonsuited on the ground that the 
managing clerk had no implied authority to give these instruc- 
tions, and therefore that what he had done did not bind the 
defendant. Smith v. Real, 9 Q. B. D. 340. 

The defendant, having recovered judgment in an action 
against one Gr. M. M., his solicitor, indorsed on a writ of fi. fa., 
directing the sheriff to levy the amount of the judgment upon 
the goods of Gr. M. M., a statement that the execution debtor 
resided at a certain address, which, however, was not the address 
of such execution debtor, but that of his father, Gr. M. The 
sheriff seized the goods of Gr. M., the father. In an action 
brought by Gr. M. against the defendant, the execution creditor, 
in respect of such seizure, the jury found that the sheriff seized 
the goods of the plaintiff instead of those of Gr. M. M., the son, 
because he was misled by the direction he received from the 
solicitor of the defendant. Held, that upon such finding the 
defendant was liable in respect of the wrongful seizure of the 
goods. Morns v. Salberrj, 22 Q. B. D. 614. 

The defendant having recovered judgment against Mrs. C, 
his solicitor indorsed on a writ oifi.fa. a statement that Mrs. 0. 
resided at a certain address. The address, however, was really 
that of the plaintiff, whose business Mrs. C. managed. The 
sheriff having seized the plaintiff's goods at the address given, 
the defendant was held liable. Lee v. Bit mil///, 7 T. L. R. 303 ; 
55 J. P. 519. 

The defendant having recovered judgment against R. C, 
directed the sheriff to levy the amount on the goods of R. C. at 
his place of business. Before the judgment R. C. had by bill 
of sale assigned these goods to the plaintiff as security for money 
lent. The sheriff seized the goods, and on an interpleader issue 
it was found that some of the goods belonged to R. C. In an 
action for trespass to goods, it was held that, as there was nothing 



INDORSEMENTS ON THE WRIT OF EXECUTION. 61 

untrue in the directions in the indorsement on the writ given 
by the defendant to the sheriff so as to mislead him, the action 
was not maintainable against the defendant. Condy v. Blaiberg, 
7 T. L. K. 424 ; 55 J. P. 580. 

If Childers v. Wookr (2 El. & E. 287 ; 29 L. J. Q. B. 129) 
is inconsistent with Jarmam v. Hooper and Morris v. Salberg, 
it must be considered as overruled, but it may, perhaps, be sup- 
ported on other grounds. See per Lord Esher, M. R., in Morris 
v. Salberg. And see under this head, Humphreys v. Pratt, 2 
Dow. & CI. 288 ; 5 Bli. N. S. 154 ; in connection with which 
see per Tenterden, C. J., Clark's Index, 306, and also Bowles 
v. Senior. 8 Q. B. 677. 



Warrant. 



On receipt of a writ of fi. fa. the sheriff by warrant directs his Warrant to 
officers to seize. l e i^ ed , on 



Form of Wen-rant. 
to wit: S. S., Esq., sheriff of the said county, to and 



receipt of 
writ. 



my bailiffs, greeting : By virtue of a writ of our Sovereign Lady 
the Queen to me directed and delivered, bearing date the day 

of in the year of our Lord one thousand eight hundred and 

, I command you and every of you jointly and severally that 
of the goods and chattels of C. D. in my bailiwick you or one of 
you cause to be made the sum of £ and also interest thereon at 

the rate of £ per centum per annum from the day of 

, IS , which said sum of money and interest were lately 
before our said Sovereign Lady the Queen in her Majesty's High 
Court of Justice in a certain action [or " certain actions," as the case 
may be] wherein A. B. is plaintiff and C. D. is defendant, by a 
judgment of the said Court bearing date the day of , 

18 , adjudged to be paid by the said C. D. to A. B., together with 
certain costs in the said judgment mentioned, and which costs have 
been taxed and allowed by one of the taxing officers of the said 
Court at the sum of £ , as appears by the certificate of the said 

taxing officer dated : And I further command you that of 

the goods and chattels of the said C. D. in my bailiwick you further 
cause to be made the sum of £ [costs], together with interest 

thereon at the rate of £ per centum per annum from the 

day of , 18 [let all this follow the terms of the writ of fi.fa.~\, 

so that I may have that money and interest before her said Majesty 
in her High Court of Justice, immediately after the execution hereof, 
to be paid to the said A. B. as required by the said writ, and that 
you do all such things as by the statute passed in the second year 
of the reign of Queen Victoria I am authorized and required to >1>> 
this in this behalf. And in what manner you shall have executed 



62 WRIT OF FIERI FACIAS. 

this warrant certify to me immediately after the execution hereof. 
Hereof fail not. 

Given under the seal of my office the day of , a.d. 

By the sheriff. 

(Seal of Office.) 

Writ indorsed: Levy £ &c, [copying the indorsement on the 

writ]. Before you levy on the goods and chattels of the defendant, 
beware that he is not an ambassador, or servant to an ambassador, 
or otherwise privileged or protected. 



Time of Execution. 

Time of By 29 Car. II. c. 7, s. 6, " No person or persons upon the 

Lord's day shall serve or execute, or cause to be served or 
executed, any writs, process, warrant, order, judgment, or decree 
(except in cases of treason-felony or breach of the peace), but 
the service of every such writ, process, warrant, order, judgment, 
or decree shall be void to all intents and purposes whatsoever : 
and the person or persons so serving or executing the same shall 
be as liable to the suit of the party grieved, and to answer 
damages to him for doing thereof, as if he or they had done the 
same without any writ, process, warrant, order, judgment, or 
decree at all." But where a ft. fa. had been executed on a 
Sunday, and the execution had been abandoned the next day, it 
was held that an entry on the following Thursday to execute a 
distress warrant was not invalid. Percival v. Stamp, 9 Ex. 167 ; 
23 L. J. Exch. 25, per Parke, B. " The same rule does not 
apply to the case of a sheriff seizing goods after an illegal entry 
as holds with respect to a sheriff who, in the first instance, 
arrests a party illegally and then detains him under a legal 
warrant." 

Whilst a landlord can only distrain during the daytime, 
there is no such limitation imposed with respect to the sheriff. 
Brown v. Glenn, 10 Q. B. 254, per Lord Campbell, C. J., 20 L. J. 
(N. S.) Q. B. 205. 

A writ may be executed the day it is returnable, but not 
after. Parkins v. Wollaston, 6 Mod. 130 ; and see Maud v. 
Barnard, 2 Burr. 812. 

A sheriff's officer, having a ft. fa. against A., called at his 
house when he was from home, waited till he returned, and 
then informed him of his business : — Held, that there was 



PLACE OF EXECUTION. 63 

sufficient evidence to warrant the jury in finding that the writ 
was executed at the time of the officer's entry. Bird v. Bass, 
6 Man. & Gk 143 ; 6 Scott, N. E. 928. 



Place of Execution. 

It is the duty of the sheriff to levy on the goods of the debtor Place of 
wherever found within his bailiwick. This word was introduced x .° u * "' 
by the princes of the Norman line in imitation of the French, "bailiwick." 
whose country is divided into bailiwicks, as that of England into 
counties. It bears the same meaning. See Blackstone, Bk. I., 
c. 9. 

Detached parts of counties are to be treated as parts of the 
counties by which they are surrounded. 7 & 8 Yict. c. 61, s. 1. 

Royal residences have the privilege of exemption from the Exemption of 
execution of legal process. This privilege is based solely on the fences from 
principle that the personal dignity and comfort of the Sovereign execution of 
should not be interfered with ; and though actual personal ° 
residence is not necessary to confer it, the privilege does not 
extend to the precincts of a palace such as that of Hampton 
Court, the occupation of which has been clearly and unequivocally 
abandoned. Att.-Gen. v. Bakin, L. R. 4 H. L. 338; 39 L. J. 
Ex. 113; 23 L. T. N. S. 1. 

"With regard to franchises, see under title "Appointment of Franchises. 
Sheriff and his Officers (Franchises, &c.)," ante, p. 18; and 
sect. 34 of the Sheriffs Act, 1887 (50 & 51 Vict. c. 55). 



Several Writs — Priority of Execution. 

Where a sheriff has several writs issued by different creditors Priority of 
against the same debtor, it is his duty to execute that writ first several'^vrrts. 
which was first delivered to him, and when he has sold sufficient 
to satisfy that writ, he should sell under the next in order, and 
so on, as long as there are goods unsold. If there remain writs 
unexecuted when all the goods are sold, he should pay the 
amounts of the several writs in order of priority of time, and 
make a return of nulla bona to the unsatisfied writs. AMrcd v. 
Constable, 6 Q. B. 370 ; and In re Pearce, Ex parte Crossthicaife, 
14 Q. B. D. 966 ; 54 L. J. Q. B. 316. 

Seizure under one writ enures for the benefit of all (Jones v. 
At/urton, 2 Marsh. 375; 7 Taunt. 56), provided that the sub- 



64 WRIT OF FIERI FACIAS. 

sequent writs "were delivered into the sheriff's hands before he 
sold the goods. Harrison v. Paynter, 6 M. & W. 387 ; 8 Dowl. 
P. C. 349; 9 L. J. (N. S.) Ex. 169. 

Where an attorney, acting for several plaintiffs in different 
actions, delivered seven writs of fi. fa. to the sheriff in one 
bundle at the same time : — Held, that the sheriff could not call 
upon the plaintiffs or their attorney to say which writs were to 
have priority. Semble, that a return to the effect that he had 
received the writs at the same time, and had levied under all, 
would be a good return. Ashworth v. The Earl of ITxbridge, 12 
L. J. (N. S.) U. B. 39 ; 2 Dowl. N. S. 377. 

Where two writs of fi. fa. against the same defendant are 
delivered to the sheriff on different days, and no sale is actually 
made of the defendant's goods, the first must have priority, 
notwithstanding seizure be first made under the subsequent 
execution. Hutchinson v. Johnston, 1 T. R. 729 ; 1 R. R. 380. 
All feigned, The statute 13 Eliz. c. 5 enacts, inter alia, that all feigned, 

fraudulent' covinous, and fraudulent judgments and executions, devised and 
judgments contrived with intent to delay, hinder, or defraud creditors and 
others, shall be, as against those persons, utterly void. Accord- 
ingly, a fraudulent writ must be postponed to the next writ in 
order of delivery. Bradley v. Windham, 1 Wils. 44. There is 
nothing in this statute to prevent a debtor preferring one creditor 
to another, though the others have commenced actions against 
him, and though he does so with intent to defeat the other 
creditors. Wood v. Dixie, 7 Q. B. 892 ; Hale v. Saloon Omnibus 
Co., 4 Drew. 492. 

Where goods, seized under a former writ, founded on a 
judgment fraudulent against creditors, are capable of being 
seized by the sheriff, he is compellable, under 13 Eliz. c. 5, to 
seize and sell such goods under a writ received by him subse- 
quently, and founded on a bond fide debt ; and if, after notice of 
such fraud, he neglects to sell, and returns nulla bona to the 
latter writ, he is liable to an action for a false return. Nor 
does the fact that the sheriff has assigned the goods upon the 
prior execution to a supposed bond fide purchaser (but who is in 
truth a party to the fraud), innocently and in ignorance of the 
fraud, excuse the sheriff from such liability. Christop/ierson v. 
Burton, 3 Exch. 160; 18 L. J. Exch. 60. 

Where afi.fa. is delivered to the sheriff, with directions to 
suspend the execution, and in the meantime another writ is 
delivered by another creditor, the sheriff is bound to levy under 



SEVERAL WRITS : PRIORITY OF EXECUTION. 65 

the Latter writ in preference to the former, although the former 
writ was not delivered with any fraudulent intent or purpose to 
protect the goods of the debtor. Hunt v. Hooper, 1 D. & L. 
62G ; 12 M. & W. 664; 13 L. J. Ex. 183 ; and see Kempland v. 
Macauley, 1 Teake, 95 ; and Crowder v. Long, 8 13. & C. 598. 

In March the then sheriffs of London seized the goods of a 
debtor by virtue of a fi. fa. ; an officer was put in possession of 
the goods, but the execution creditor directed the sheriffs not to 
sell, and the debtor continued to have the control of his goods 
until November, when another execution creditor sued out a 
fi. fa., directed to the succeeding sheriffs of London : — Held, 
that the latter were bound to levy this second fi.fa., and that it 
was their duty, when they found the officer of the former 
sheriffs in possession, to inquire into the facts, and if they had 
done so, they would have learned that the first execution was 
fraudulent. Lorick v. Crowder, 8 B. & C. 132 ; 2 M. & R. 84. 

" When a writ against the goods of a party has issued from Priority of 
the High Court, and a warrant against the goods of the same i^umo- ut of 
party has issued from a County Court, the right to the goods High Court 
seized shall be determined by the priority of the time of the Court. 
delivery of the writ to the sheriff to be executed, or of the 
application to the registrar for the issue of the warrant to be 
executed ; and the sheriff, on demand, shall, by writing signed 
by any clerk in the office of the under-sheriff, inform the high 
bailiff of the precise time of such delivery of the writ, and the 
bailiff on demand shall show his warrant to any sheriff's officer, 
and such writing, purporting to be so signed, and the indorse- 
ment on the warrant, shall respectively be sufficient justification 
to any high bailiff or sheriff acting thereon." 51 & 52 Vict. 
c. 43 (County Courts Act, 1888), s. 152. 

See also as to priority of writs, Wintle v. Lord CJietwynd, 7 
Dowl. P. C. 554 ; Chambers v. Coleman, 9 Dowl. P. C. 588 ; 
and Saunders v. Jlidd/esex (Sheriff'), 3 B. & A. 95. See also 
under this head Imray v. Magna//, post, p. 93, under sub- 
heading "Reporting Result of Execution, &o." 



Concurrent Writs. 
A judgment creditor is entitled to sue out concurrent writs of "When ju<l«r- 

j> ,. • i ij.' i'-Ji i !•• meiit creditor 

jx.ja.,\\\ order to obtain execution m the several counties m may sue out 

which his debtor has goods, and each sheriff is bound by the concurr ent 

° " WTlts. 

M. F 



66 



WRIT OF FIERI FACIAS. 



writ to seize the goods of the judgment debtor within his baili- 
wick. It matters not whether one seizure be after another or 
not. The judgment creditor should give the sheriffs notice of 
the other writs, and both he and the sheriffs must be careful to 
avoid allowing a sale to take place under more than one writ 
when one seizure would satisfy the debt. The creditor, acting 
under this power, must act reasonably and without malice. Lee 
v. Dangar, [1892] 1 Q. B. 226 ; affirmed 8 T. L. E. 494 ; [1892] 
2 Q. B. 337; 61 L. J. Q. B. 780 ; 66 L. T. 548 ; 40 W. E. 
469. 



Successive Writs. 

It appears that a judgment creditor cannot issue a second 
writ of fi. fa. (at least after an actual levy) until the first is 
returned. See Chapman v. Bowlby, 8 M. & W. 249 ; and dicta 
of Cave, J., in Ex parte Ford, 18 Q. B. D. 371, and Denman, J., 
in Lee v. Dangar, [1892] 1 Q. B. 240. 

On this subject see also Green v. Elgie, 3 B. & Ad. 437; 
Hunt v. Passmore, 2 D. P. C. 414. 



Amount to 
be seized. 



Claim of 
landlord for 
rent. 



Seizure. 

It is the duty of a sheriff in executing afi.fa. to possess him- 
self of all the goods of the debtor within his bailiwick, or suffi- 
cient to satisfy the execution. Pitcher v. King, D. & M. 584 ; 
5 Q,. B. 758. Under the statute 8 Anne, c. 14, s. 1, the sheriff 
must also levy arrears of rent, not exceeding one year's rent, if 
the landlord give him notice that the rent is in arrear, and 
should he remove any goods without securing this, he will be 
liable to the landlord. In other words, the duty of a sheriff, in 
the first instance, is to seize so much of the debtor's goods as 
will be reasonably sufficient, if sold, to satisfy the sum indorsed 
on the writ, and the proper poundage, fees, and expenses of 
execution, and his duty to seize in respect of rent does not arise 
until the landlord has made a claim, when, on the refusal of the 
tenant to pay the rent, the sheriff is bound to levy it under the 
writ, and, consequently, to seize to a larger amount. Gauier v. 
ChapUn, 2 Ex. 503 ; 18 L. J. Ex. 42. This claim by the land- 



SEIZURE. 67 

lord need not be formal ; it is sufficient if he informs the sheriff 
of the amount of the arrears. Waring v. Dewberry ', 1 Stra. 07; 
Colyer v. Speer, 2 Brod. & B. 67 ; Smith v. Russell, 3 Taunt. 
400. 

The statute 8 Anne, c. 14, s. 8, contains a saving clause for Crown debts. 
Crown debts ; 7 & 8 Yict. c. 96, s. 67, provides for terms of less 
than one year. And see the subject discussed at length in the 
chapter on " Landlord's Claim for Rent." 

So long as a judgment exists, it protects those who seize the Parties seiz- 
property under an execution founded on it; and if the judgment so'iou™ as ° 
and execution are set aside, no action can be maintained against judgment 
the sheriff for anything he did under such judgment while it 
remained in existence. Ives v. Lucas, 1 C. & P. 7. For the 
law regarding the liability of sheriffs for not executing or 
delaying the execution of writs, see under title "Sheriff's Eights 
and Liabilities and Remedies against Sheriff," post, p. 406. 

In all cases when the door is open, the sheriff may enter the How far 
house, and do execution, at the suit of any subject, either of the powered to 
body or of the goods. Fourth resolution in Semayne's Case, 1 f nte ?" ^ nd 
Sm L. C. ; 5 Co. 91. break house. 

In all cases when the king is party, the sheriff, if the doors 
be not open, may break the party's house either to arrest him, 
or to do other execution of the king's process, if otherwise he 
cannot enter. But before he breaks it, he ought to signify the 
cause of his coming and to make request to open the doors. 
(Third resolution.) But it was resolved that it is not lawful for 
the sheriff, on request made and denial, at the suit of a common 
person, to break the defendant's house to execute any process at 
the suit of any subject. (Fourth resolution.) It was further 
resolved that the house of any one is not a castle or privilege 
but for himself, and shall not extend to protect any person who 
flies to his house, or the goods of any other which are brought 
and conveyed into his house to prevent a lawful execution, and 
to escape the ordinary process of law ; for the privilege of 
his house extends only to him and his family, and to his own 
proper goods, or to those which are lawfully and without fraud 
and covin there ; and, therefore, in such cases, after denial on 
request made, the sheriff may break the house. (Fifth resolu- 
tion.) 

Thus a sheriff may enter the judgment debtor's house, if he 
can do so without breaking in, but he may only break in to 

f2 



68 WEIT OF FIERI FACIAS. 

execute a writ of fi. fa. when the Crown is a party. He may 
enter the house of a third party, hut it is at his own risk, for if the 
goods of the defendant are not there, he is a trespasser and liahle 
to an action. He may also break into the house of a third party 
if the debtor's goods have been taken there to avoid execution, 
but, again, he does so at his own risk. It appears there is no 
distinction between the house in which a judgment debtor resides 
with another person and his own house ; Lord Loughborough, 
in Sheers v. Brooks, 2 H. Bl. 120 ; 3E.E. 357, says, " I see no 
difference between a house of which he is solely possessed, and a 
house in which he resides with the consent of another." That, 
however, was a case of bail seeking their principal. See also 
Morrish v. Murray, 13 M. & W. 52, and Cooke v. Birt, 5 Taunt, 
764. If this is so, it follows that a sheriff cannot justify break- 
ing into such a house. In all cases, before breaking in, it should 
be noted that a previous demand for admission and refusal 
thereof is necessary. Semayne's Case, and Launock v. Brown, 2 
B. & A. 592. On the authorities it is doubtful whether lifting 
the latch of a door that is only latched amounts to breaking ; 
in an American case, it was held that it did. See the notes to 
Scmayne's Case in Smith's L. C, "Vol. I., and cases on breaking 
under the heading "Burglary" in Archbold's Criminal Cases. 
If a window be shut, but not fastened, it may not be opened for 
the purpose of distraining. Nash v. Lucas, L. K. 2 Q,. B. 590. 
It appears that though a sheriff who breaks into the debtor's 
house is a trespasser, yet the execution is good so far as relates 
to the goods seized. Sanayne's Case; Be Gondouin v. Lewis, 10 
Ad. & E. 117, and see the question discussed in the notes to 
Semayne's Case in Smith's L. C. 

If after having obtained peaceable possession of a dwelling- 
house, the sheriff's officers be forcibly ejected or be obliged to 
fly under threat of bodily injury, they may forcibly re-enter, 
and, in such cases, the sheriff can send as many additional 
officers as he may deem necessary ; whilst in the case of such 
threat of bodily injury, the sheriff's officers should also summon 
the offender for assault. Again, where the sheriff, having ob- 
tained peaceable possession, cannot carry away the seized effects 
or execute the writ without breaking the lock, &c. of the outer 
door because of its being locked, &c, and neither the execution 
debtor nor anyone on his behalf are on the premises to enable 
the sheriff to request them to open such door, he is justified in 
breaking it open. Pugh v. Griffith*, 7 Ad. & E. 827; 3 N. & P. 



SEIZURE. 69 

187 ; 7 L. J. (N. S.) Q. B. 169 ; and see Eagkton v. G-utteridge, 
11 M. &TV. 465. 

The sheriff may, if necessary, break open the outer door of a 
barn or out-house detached from a dwelling-house, without a 
previous demand and refusal of admission, for the purpose of 
executing a //. fa. Teuton v. Browne, 1 Sid. 186. It would, 
moreover, seem clear from the judgment of Blackburn, J., 
in llohson v. Thelluson, 36 L. J. (N. 8.) Q. B. 302, that a 
sheriff has a right to break open the door of a warehouse. 
Whilst a sheriff must always make request before breaking in, 
having entered by the open doors of a house, he can break open 
its inner doors for the purpose of executing a writ oifi.fa. with- 
out the necessity of making any previous demand to have such 
inner doors opened to him (Hutchinson v. Birch, 4 Taunt. 619 ; 
and Johnson v. Leigh, 1 Marsh. 565 ; 6 Taunt. 246) ; as also 
cupboards, trunks, &c, if necessary. R. v. Bird, 2 Show. 87 ; 
Lee v. Gansell, Cowp. 1 ; and Hutchinson v. Birch, ante. 

Under a fi. fa. against the goods of an intestate in the hands 
of his administratrix, or of the husband of the administratrix in 
her right since her marriage, the sheriff may justify entering the 
house of the husband to search for goods of the intestate, though 
none are found therein, because that is the most natural place of 
custody for them. Cooke v. Birt, 5 Taunt. 764 ; 1 Marsh. 333. 
And see under this head, Brunxicick (Duke) v. Sloicman, 8 C. B. 
317 ; 18 L. J. C. P. 299 ; and 1 Smith's L. C. 9th ed., pp. 122 
et seq. ; see also under title " Arrest," post, p. 177. 

"Whilst one man and at most three men are generally sufficient As to number 
for adequate possession of the effects on any particular premises, pi a ™ e e fi n 
it is in the discretion of the sheriff to place as many men in pos- possession, 
session as he may deem necessar}^. In the case of an actual or 
apprehended breach of the peace in connection with an execution, 
the sheriff can call out the posse comitatus to prevent any such Posse comi- 
breach, and also to generally protect his officers in the discharge 
of their duties ; and it has been held that a sheriff is not liable 
for damage to seized goods destroyed by means which he could 
not prevent ; for example, through a mob breaking in and 
injuring the goods, notwithstanding the sheriff having taken 
reasonable precautions for the protection thereof. Willis, 
Winder 8f Co. v. Coomhe, 1 C. & E. 353. 

It was, moreover, held, in such latter case, that inasmuch as a 
bankruptcy receiver was in possession at the time of the sheriff 
taking possession and of the disturbance, the sheriff's possession 



70 WRIT OF FIERI FACIAS. 

was of such a nature that he could not be fixed with liability for 
the damage in question. 

The sheriff is not obliged to remove all persons from the 
premises in question in the case of a fi. fa. as in the case of a 
writ of possession. 

A sheriff cannot turn a tenant out of possession when he has 
taken a term under an execution against the landlord. Rumball 
v. Murray, 3 T. & R. 298 ; and see Miller v. Pamell, 2 Marsh. 
78 ; 6 Taunt. 670. 

Effectual and continuous possession should be secured, other- 
wise the sheriff incurs great risk. For an example of this, 
where a sheriff's officer executed a fi.fa. by going to the house 
and informing the debtor he came to levy on his goods, and 
laying his hand on a table, and saying " I take this table," and 
then locked up his warrant in the table drawer, took the key, 
and went away without leaving any person in possession, and 
after the fi. fa. was returnable, but not continued, the landlord 
distrained the goods for rent : — Held, that the sheriff could not 
maintain trespass against him. Blades v. Arundale, 1 M. & S. 
711 ; and see under sub-title "Withdrawal from Possession," 
2)ost, p. 81. 

A seizure of part of the goods in a house by virtue of a fi. fa. 
in the name of the whole is a good seizure of all. Cole v. Bavies, 
1 Ld. Raym. Cases, p. 725. 

A sheriff is liable in trespass for remaining an unreasonable 
time on the premises in possession of the seized goods. Ash v. 
Baivnay, 8 Exch. 237 ; 22 L. J. Ex. 59 ; and see Plai/fair v. 
Musgrore, 14 M. & W. 239 ; 15 L. J. Ex. 26. 



What Seizable and not Seizable. 

Generally the sheriff may seize all, or so much as may be 
necessary, of the goods and chattels of the judgment debtor, 
including money, bank notes, and securities for money, and 
leasehold interests in land (but excluding wearing apparel, 
bedding, and tools to the value of 5/.), debts, equitable interests 
in leaseholds, and to some extent farming stock and crops. See 
these subjects treated of in detail in the following pages. 

In Bagge v. Whitehead, [1892] 2 Q. B. 355; 61 L. J. Q. B. 
778 ; 66 L. T. 815 ; 40 W. R. 472 ; 56 J. P. 548, it was held 



WHAT 8EIZABLE AND NOT SEIZABLE. 71 

that a sheriff was not liable to the penalty imposed by the 
Sheriffs Act, 1887, for having improperly seized bedding and 
tools, the penalty in that Act being imposed on the person 
actually guilt}' of the wrongful act. 

All process, whereby the goods and chattels of any ambassador (i) Goods of 
or other public minister of any foreign prince or state, authorized & c non . ' ' 
and received as such by the Sovereign, or their domestic servants, srizable. 
may be seized, is void by 7 Anne, c. 12, s. 3, and also highly 
penal by sect. 4. 

A secretary of legation acting in the absence of the ambassador 
as charge d'affaires is entitled to the privileges of an ambassador. 
Taylor v. Best, 14 C. B. 487. The domestic servants are not Domestic 
protected, unless they are registered as required by sect. 5 of ambassador to 
the Act, and their names hung up in a public place in the offices be registered. 
of the sheriffs of London and Middlesex, whereto all persons 
may resort and take copies. No merchant or trader, within the 
description of any of the statutes against bankrupts, is protected 
by taking service under an ambassador. Sect. 5. It should be 
observed that consuls are not protected. 

By 1 & 2 Vict. c. 110, s. 12, " By virtue of any writ of fieri (2) Money, 

n ■ j t tip • • p i bank notes 

jacias to be sued out of any superior or interior court, or any £ c . sheriff 

precept in pursuance thereof, the sheriff or other officer having empowered 
the execution thereof may and shall seize and take any money 
or bank notes (whether of the governor and company of the 
bank of England or of any other bank or bankers), and any 
cheques, bills of exchange, promissory notes, bonds, specialties, 
or other securities for money belonging to the person against 
whose effects such writ of fieri facias shall be sued out ; and may and to pay 
and shall pay or deliver to the party suing out sucli execution tank notes to 
any money or bank notes which shall be so seized, or a sufficient execution 
part thereof ; and may and shall hold any such cheques, bills of 
exchange, promissory notes, bonds, specialties, or other secu- 
rities for money as a security or securities for the amount by 
such writ of fieri facias directed to be levied, or so much thereof 
as shall not have been otherwise levied and raised ; and may sue and to sue for 
in the name of such sheriff or other officer for the recovery of cured by bills 

the sum or sums secured thereby, if and when the time of of exchange 

. and other 

payment thereof shall have arrived ; and that the payment to securities. 

such sheriff or other officer by the party liable on any such 

cheque, bill of exchange, promissory note, bond, specialty, or 

other security, with or without suit, or the recovery and levying 

execution against the party so liable, shall discharge him to the 



72 WRIT OF FIERI FACIAS. 

extent of such payment, or of such recovery and levy in execu- 
tion, as the case may be, from his liability on any such cheque, 
bill of exchange, promissory note, bond, specialty, or other secu- 
rity ; and such sheriff or other officer may and shall pay over to 
the party suing out such writ the money so to be recovered, or 
such part thereof as shall be sufficient to discharge the amount 
by such writ directed to be levied ; and if, after satisfaction of 
the amount so to be levied, together with sheriff's poundage and 
expenses, any surplus shall remain in the hands of such sheriff 
or other officer, the same shall be paid to the party against whom 
Proviso as to such writ shall be so issued ; provided, that no such sheriff or 
sheriff? 1 y ° r other officer shall be bound to sue any party liable upon any 
such cheque, bill of exchange, promissory note, bond, specialty, 
or other security, unless the party suing out such execution shall 
enter into a bond, with two sufficient sureties, for indemnifying 
him from all costs and expenses to be incurred in the prosecution 
of such action, or to which he may become liable in consequence 
thereof, the expense of such bond to be deducted out of any 
money to be recovered in such action." The effect of this 
section is to make money, bank notes, &c, liable to seizure in 
the same way as other goods and chattels ; but they do not on 
seizure vest in the execution creditor. 

The balance of sale moneys in a sheriff's hands after satisfying 
two former executions constitutes a debt from him to the execu- 
tion debtor, and as a mere debt it cannot be taken in execution 
under the above statute. Harrison v. Paynter, 6 M. & W. 
387. But in O'Neill v. Cunningham, 6 Ir. C. L. 503, Q. B., 
it was held that money realized by a sale under a fi. fa. may be 
attached in the hands of the sheriff. Nor does the above Act 
empower seizure in execution of money in the hands of a third 
person as trustee for the debtor. France v. Campbell, 6 Jur. 105; 
and see Brown v. Perrott, 4 Beav. 585. Moreover, the above 
section only applies to the case of money set apart and earmarked 
as property specifically of the execution debtor; and, accordingly, 
money, levied under afi.fa. and in the hands of the sheriff for 
an execution creditor, cannot be seized under ay?, fa. against 
such execution creditor. Wood v. Wood, 3 Gr. & D. 532 ; 4 
Q. B. 397; 12 L. J. Q. B. 141 ; and Collingridge v. Paxton, 21 
L. J. (N. S.) C. P. 39 ; 11 0. B. 683; and see on this subject, 
Brun v. Hutchinson, 13 L. J. (N. S.) Q. B. 244; 2 Dowl. & L. 
P. C. 43 ; as also Winter v. Campbell, 9 Dowl. P. 0. 914 ; Watts 
v. Jeffreys, 3 Mac. & G. 372 ; 15 Jur. 435 ; 20 L. J. (N. S.) Ch. 



WHAT SEIZABLE AND NOT SEIZABLE. 73 

659 ; Courtoy v. Vincent, 15 Beav. 486 ; 21 L. J. Ch. 291 ; and 
Bell v. Hutchison, 8 Jur. 895. 

The wearing apparel and bedding of any judgment debtor or ( 3 ) Execution 
his f amily, and the tools and implements of his trade (the value actual neces- 
of such apparel, bedding, tools and implements not exceeding in sanes .?^ 
the whole the value of five pounds) , shall not be liable to seizure value non- 
under any execution or order of any Court against his goods and 
chattels. 8 & 9 Yict. c. 127, s. 8. 

See also as to soldiers' accoutrements, Army Act, 1881 ( 4 ) Soldiers' 

accoutre- 

(44 & 45 Vict. c. 58) ; and as to rolling stock and plant of rail- ments. 
ways, see Eailway Companies Act, 1867 (30 & 31 Vict. c. 127), (5) Kailway 
and pout, p. 236, under title " Execution against Companies." andphmt. 

The sheriff may realize the execution debtor's qualified pro- (6) Goods on 
perty in hired goods. If, however, a party has goods on hire g e ^ble W 
for a term, and the sheriff seizes them under an execution 
against such party, the owner of the goods may maintain an 
action against the sheriff if he sells the entire property of such 
goods ; but to support the action, he must show that as soon as 
the goods were seized, he apprised the sheriff that the goods 
were lent for a term only, in order that the sheriff might know 
that he had only a right to sell the debtor's qualified pro- 
perty therein. Dean v. Whittaker, 1 C. & P. 347 ; and Ward v. 
Macaulay, 4 Durn. & E. Rep. 489. And see Duffil v. Spoftis- 
iroode, 3 C. & P. 435 ; Pant on v. Pobart, 2 East, 88 ; 4 Esp. 
33; and Pain v. Middlesex (Sheriff'), 11. & M. 99 ; as also 
Lancashire Waggon Co. v. Fitzhagh, 6 H. & N. 502 ; 30 L. J. 
Ex. 231. And an action against the sheriff for selling the 
reversionary interest of the plaintiff in goods in an execution 
debtor's possession cannot be supported, unless actual damage 
has been sustained. Tancred v. Allgood, 4 H. & N. 438 ; 28 
L. J. Ex. 362. 

Where the execution debtor is or stands in the position of a (7) Goods in 
mere bailee of goods during pleasure, and the owner has there- '.x^'uti/.u ' 
fore an immediate right of possession therein, the latter may debtor as a 
maintain trover against a sheriff who takes them in execution. 
See Manders v. Williams, 4 Exch. 339; 18 L. J. Exch. 437; 
and in particular the judgment of Parke, 13., therein. 

Under an execution against the goods of A., the sheriff cannot (8) Exceu- 
seize goods which he has deposited with another person as secu- JooY/m ° r S 
rity for a debt. Rogers v. Kennay, 9 Q. B. 592; 11 Jur. 14; pledge, non- 

ij-t t /-v -r-> «■»«•. seizable. 

lo L. J. Q. B. 381. 

And see under title " Bills of Sale," post, p. 291. 



74 



WRIT OF FIERI FACIAS. 



(9) Fawn- 
broker's 
interest in 
redeemable 
pledges, 
seizable. 

10) Effects in 
possession of 
execution 
debtor in a 
representative 
capacity, 
non-seizable. 

As executor 
of testator. 



As adminis- 
trator of 
intestate. 



As trustee. 



A pawnbroker's interest in redeemable pledges may be taken 
in execution under afi.fa. In re Rollason, Rollason v. Rollason, 
Hake's Claim, 34 Ch. D. 495; 56 L. J. Ch. 768 ; 35 W. E. 607; 
56 L. T. 303. 

Effects vested in another in a representative capacity cannot 
be taken in execution for his own debt except under special 
circumstances. 

Goods of a testator in the hands of his executor cannot be 
seized in execution of a judgment against the executor in his 
own right. Fan- v. Neicman, 4 T. E, 621; 2 E. E. 479. 
Whale v. Booth, 4 Doug. 36, cannot be accepted as an authority 
to the contrary, and may probably be exjuained in the way 
suggested by Grove, J., in Farr v. Newman. But if an executor 
uses the goods of the testator as his own, they will not be pro- 
tected. See Quick v. Staines, 1 Bos. & Pul. 293 ; 2 Esp. 57 ; 4 
E. E. 801 ; McLeod v. Drummond, 17 Ves. 152 ; and Ray v. 
Ran, Coop. 264; Fenwick v. La //cock, 1 G. & D. 532; 2 Q. B. 
108 ; 11 L. J. Q. B. 146; and see also Lewin on Trusts, 8th ed. 
p. 224. 

Where an executor carries on his testator's business under a 
power, and in so doing incurs debts, these debts are the personal 
debts of the executor, and judgment and execution must be 
against his personal property and not against the testator's. 
In re Morgan, 18 Ch. D. 93 ; 50 L. J. Ch. 834 ; In re Evans, 34 
C. D. 597 ; 56 L. T. 768 ; 35 W. E. 44 ; Dowse v. Gorton, 
[1891] A. C. 190 ; 60 L. J. Ch. 745 ; 64 L. T. 809. Where 
an executor before probate by his agent took the goods and 
carried on the business of the deceased, and judgment was 
recovered against the agent as executor, and a fi. fa. issued 
thereunder directing the sheriff to levy on the goods of the 
deceased in his hands as executor, the sheriff was not justified, as 
against the executor, in seizing goods of the deceased in such 
agent's hands. Sghes v. S//kcs, L. E. 5 C. P. 113; 39 L. J. 
C. P. 179; 22 L. T. 236. 

Goods of an intestate taken possession of and used by an 
administrator in the house of the intestate for three months 
after the death of the intestate, cannot be taken in execution 
for the administrator's own debt. Gaskell v. Marshall, 1 M. & 
Eob. 132. 

Formerly at laic trust property was liable to be taken for the 
debts of the trustee, but now under sects. 24 and 25 of the 
Judicature Act, 1873, the rules of equity prevail, and it is not 



WHAT SEIZABLE AND NOT SEIZABLE. 75 

so liable. Duncan v. Cashin, L. E. 10 C. P. -554 ; 44 L. J. 0. P. 
225 ; Engleback v. Nixon, L. E. 10 C. P. G45 ; 44 L. J. C. P. 
396; and Jenkinson v. Brandley Miring Co., 11) Q. B. D. 568. 

At common law the sheriff can seize only those things which (H) Lien, 
he can sell, and therefore a lien which is a mere personal right 
and cannot be made the subject-matter of a sale, cannot be 
taken in execution under Bkfi.fa. Legg v. Evans, 9 L. J. (N. S.) 
Ex. 102 ; 6 M. & TV. 36 ; 8 Dowl. P. C. 177. 

A ship and shares of a ship can be taken. The seizure of a (12) Shipping 
ship is effected by putting a man on board with a warrant, ^aUe'' 
which he must produce to the person in charge and affix to the 
mast as in the case of Admiralty proceedings. The sheriff's 
officer must, moreover, remain on board till payment. Prior to 
the seizure of a ship, care should be taken that the vessel is in 
the sheriff's bailiwick and that it entirely belongs to the 
execution debtor, for, except under special circumstances, the 
sheriff would not, it is conceived, be justified in seizing and 
detaining a ship in which the execution debtor was only partly 
interested. 

If the mortgagee of a ship takes possession before execution 
executed, the vessel cannot be seized under the execution. 
Ladbrooke v. Criekett, 2 T. E. 649 ; IE. E. 571. 

The master of a ship may possibly attempt to sail despite the 
sheriff's officer being on board; to avert which, the sheriff should, 
if possible, secure the immediate assistance of the port authorities. 
The captain can, moreover, be proceeded against for contempt 
of Court for such an offence. 

A sheriff may effectually seize, and sell by a bill of sale, shares 
of a ship without the necessity of going on board. HarUy v. 
Harlcy, 11 Ir. Ch. 451. In that case, an execution debtor being 
the registered owner of shares in a ship, the sheriff obtained, 
and retained possession of the certificate of registry. The 
sheriff was thereupon registered at the Custom House under the 
Merchant Shipping Acts as owner of the shares, and afterwards 
sold and transferred the same to a purchaser by a registered 
bill of sale : — Held, that the seizure was effectual, although the 
sheriff did not go on board the ship, and that the property in 
the shares was regularly transferred by the bill of sale. In his 
judgment in JEEarley v. Harley the Master of the Rolls, after 
alluding to the usual way in which the sheriff executes the writ 
under a judgment against one partner, viz., by making a bill of 
sale of the actual interest, added, " That was done in this case. 



76 



WRIT OF FIERI FACIAS. 



(13) Farming 
stock and 
growing _ 
crops, seiz- 
able subject 
to restric- 
tions. 

(14) Fixtures. 

(15) Goods 
sold by execu- 
tion debtor 
prior to 
execution, or 
acquired by 
third parties 
for valuable 
consideration 
prior to 
seizure, non- 
seizable. 



A part-owner of a ship is not necessarily a partner. He is a 
tenant in common with the other part-owners. I think that a 
bill of sale is the proper mode of executing the power vested in 
the sheriff." 

On pa} r ment of the usual inspection fee at the local registry, 
the sheriff can obtain particulars of any existing mortgages of 
the ship or shares in question. A good local shipping register 
will, moreover, furnish him with all reliable information on this 
point, as also of what other shipping property may be owned by 
the execution debtor. And see under title " Bills of Sale," 
post, p. 305. 

Farming stock and growing crops may be taken, subject to 
certain restrictions. See this subject discussed in detail, post, 
p. 244, under the title "Husbandry Provisions." 

See the chapter on " Fixtures," post, p. 249. 

Under the old law, a debtor could not alienate his goods after 
a writ of execution was issued, but sect. 16 of the Statute of 
Frauds (29 Car. 2, c. 3) provides that " No writ of fieri facias 
or other writ of execution shall bind the property of the goods 
against which such writ of execution is sued forth, but from the 
time that such writ shall be delivered to the sheriff, under- 
sheriff or coroners to be executed." The effect of this provision 
was that the sheriff could not seize goods alienated by the debtor 
previous to the delivery of the writ, but that he could seize 
goods alienated after the delivery, since, except when sold in 
market overt, they were still subject to the rights of the judg- 
ment creditor. See Samuel v. Duke, 3 M. & W. 622 ; Lowthal 
v. Tonkins, 2 Eq. Abr. 381 ; Smallcomb v. Cross, 1 Ld. Raym. 
252; Payne v. Drcice, 4 East, 539. The Mercantile Law 
Amendment Act, 1856 (19 & 20 Vict. c. 97), has further 
modified the law. By sect. 1 of that statute it is enacted that 
" No writ of fieri facias or other writ of execution, and no writ 
of attachment against the goods of a debtor, shall prejudice the 
title to such goods acquired by any person bond fide and for a 
valuable consideration before the actual seizure or attachment 
thereof by virtue of such writ ; provided such person had not, 
at the time when he acquired such title, notice that such writ, 
or any other writ by virtue of which the goods of such owner 
might be seized or attached, had been delivered to and remained 
unexecuted in the hands of the sheriff, under-sheriff, or coroner." 

The present law, therefore, is that the sheriff cannot seize 
goods alienated by the debtor prior to the delivery of the writ, 



WHAT SEIZABLE AND NOT SEIZABLE. 

nor thoso goods alienated after delivery of the writ which have 
been sold in market overt, or which, though not sold in market 
overt, have been acquired by some person bond fide, for a valuable 
consideration and without notice of the delivery of any writ of 
execution before actual seizure. 

Though the delivery of the writ to the sheriff binds the 
property from the date of delivery, it does not change the 
ownership ; so a debtor's transfer is valid, but the purchaser 
takes the goods subject to the rights of the execution creditor. 
Woodland v. Fuller, 11 Ad. & E. 859. For the purpose of 
ascertaining whether the writ was delivered to the sheriff before 
the completion of a purchase, the law regards fractions of a day. 
Bowen v. Bramidge, 6 C. & P. 140 ; God-son v. Sanctuary, 4 B. & 
Ad. 255. The provisions of the above-cited section of the 
Statute of Frauds as to indorsing the date of the receipt of a 
writ, and of the Sheriffs Act as to giving a written receipt for 
the writ, have been set out anle, p. 57. Delivery of nfi.fa. to 
the sheriff's deputy in London is equivalent to a delivery to the 
sheriff in the country. Woodland v. Fuller, supra. 

Such a seizure by a sheriff of a debtor's goods under an 
execution as would have been good before the above Act is an 
"actual seizure" within the above section, and the expression 
"actual seizure" means no more than "seizure." Where pre- 
mises consisting of a mansion house, offices, gardens, farm and 
farm-house, are in the same county and in one and the same 
occupation as an entirety, a seizure by a sheriff at the mansion 
house of part of the effects liable to the execution in the name 
of the whole is an " actual seizure," within the statute, of 
everything on the premises liable to the execution, whatever the 
extent of the premises and however dispersed the effects may be. 
Se/nble, per Bramwell, B. : Knowledge that a writ of execu- 
tion will probably at a certain time be delivered to the sheriff is 
not, when that time arrives, notice that it has been delivered 
within the statute. Gladstone v. Padwick, L. E. 6 Ex. 203 ; 40 
L. J. Ex. 154. 

See also under this head, Union Bank of London v. Lvnanton, 
3 C. P. D. 243 ; 47 L. J. Q. B. 409 ; ' Hob-son v. Thellmon, 

2 L. 11. Q. B. 642 ; 36 L. J. Q. B. 302 ; Bristol {Earl) v. 
Wihmore, 2 D. & R. 755; 1 B. & C. 514; Willies v. Farley, 

3 C. & P. 395; Scarfe v. Halifax, 10 L. J. (N. S.) Ex. 332; 
7 M. & W. 288; and Locklei/ v. Pye, 8 IT. £ W. 133; 9 
D. P. C. 741. 



78 



WRIT OF FIERI FACIAS. 



(16) Lease- A leasehold interest may be taken, but not a mere equitable 
Sb?e tereSt ' Merest in a term of years. Scott v. Scholey, 8 East, 467 ; 

8. P., Metcalfr. Scholey, 2 N. R. 4G1 ; Lyster v. Dollond, 1 Yes. 
Jun. 4^1 ; 3 Bro. C. C. 478 ; and In re The Duke of Newcastle, 
Ex parte Padwick, L. R. 8 Eq. 700 ; 39 L. J. Ch. 68. And in 
the case of an outgoing tenant having agreed to assign the 
remainder of his term to the incoming tenant, the sheriff before 
an actual assignment made, may, under an execution against 
the outgoing tenant, sell his interest in such remaining term 
and set upon it the same value that the incoming tenant has 
agreed to give for it. Sparrow v. Bristol {Earl), 1 Marsh. 10. 
Moreover, where a tenant has entered under an agreement for a 
lease and paid the stipulated rent, a tenancy from year to year 
is created, which the sheriff may sell under a fi. fa. Doe d. 
Westmoreland v. Smith, 1 M. & E. 137. 

The sheriff can also sell fixtures apart from a lease, if he 
cannot find a purchaser for the whole. Barnard v. Leigh, 1 
Stark. 43. 

The sheriff's seizure of a lease does not, however, vest the 
term in the sheriff until he has executed an assignment to a 
purchaser. Therefore, where a lease is taken in execution by 
the sheriff, the interest in it remains in the execution debtor 
until actual assignment to the purchaser; and a sheriff, who 
under a fi. fa. takes in execution a lease for years, has no right 
to remain on the premises for the purpose of executing an 
assignment and putting the purchaser in possession. If he 
should do so, he is liable in trespass at the suit of the execution 
debtor, if in possession, although the premises have been sold 
and transferred. Playfair v. Musgrove, 14 M. & "W. 239 ; 15 
L. J. Ex. 26 ; and see Doe d. Hughes v. Jones, 1 Dowl. N. S. 
352 ; 12 L. J. Ex. 265. 

The sheriff's assignment of a term is sufficient without an 
actual seizure of the lease. Coleman v. Bairlinson, 1 F. & F. 330. 
Nor where the sheriff has seized the lease, and sold the term 
before the writ is returnable, does his non- execution of an 
assignment to the purchaser till a subsequent period affect the 
validity of the sale. Doe d. Stevens v. Donston, 1 B. & A. 230 ; 
and see under this head Rumball v. Murray, and Jlilter v. Parnell, 
ante, p. 70, as also Grifi'en v. Caddell, 9 Ir. C. L. 488, Q. B. 

(17) Equity The sheriff cannot seize an equity of redemption under this 
tfonfnon 1 -" writ - L, J dcr v - Holland, 1 Yes. Jun. 431 ; Burdon v. Kennedy, 

seizable. 3 Atk. 739. 



WHAT SEIZABLE AND NOT SEIZABLE. 79 

Execution against partnership property on a judgment (18) Partners 
against the firm is similar to execution against an individual ; sr j p property. 
but the execution creditor is not limited to this execution against 
the firm's property. lie may also, subject to the provisions of 
Order XLVIIIa. of the Rules of Supreme Court, issue execution 
against the individual partners, and such writs are executed in 
the same way as other writs against individuals. 

As to procedure against the partnership property for a Procedure 
partner's separate judgment debt, formerly a creditor of one partnership 
partner could take out execution against the partnership effects property for 
subject to his only having the undivided share of his debtor separate 
and taking it in the same manner the debtor himself had it, i U vf ment 
and subject to the rights of the other partners. But by the 
Partnership Act, 1890 (53 & 54 Vict. c. 39), s. 23, " (1) After 
the commencement of this Act [1st January, 1891], a writ of 
execution shall not issue against any partnership property, 
except on a judgment against the firm. (2) The High Court, or 
a judge thereof, or the Chancery Court of the County Palatine 
of Lancaster, or a County Court, may, on the application by 
summons of any judgment creditor of a partner, make an order 
charging that partner's interest in the partnership property and 
profits with payment of the amount of the judgment debt and 
interest thereon, and may by the same or a subsequent order 
appoint a receiver of that partner's share of profits (whether 
already declared or accruing), and of any other money which 
may be coming to him in respect of the partnership, and direct 
all accounts and inquiries, and give all other orders and directions 
which might have been directed or given if the charge had been 
made in favour of the judgment creditor by the partner, or 
which the circumstances of the case may require. (3) The other 
partner or partners shall be at liberty at any time to redeem 
the interest charged, or in case of a sale being directed, to 
purchase the same. (4) This section shall apply in the case of 
a cost-book company as if the company were a partnership 
within the meaning of this Act." And by sect. 33, sub-s. 2, "a 
partnership may, at the option of the other partners, be dissolved 
if any partner suffers his share of the partnership property to be 
charged under this Act for his separate debt." For definitions 
of "partnership," "firm," and "partnership property," see sects. 
1, 4, and 20, and as to " property bought with partnership 
money," see sect. 21 of the Partnership Act, 1890. 

In an execution under a judgment against a married woman, (19) Goods 



80 



WRIT OF FIERI FACIAS. 



of married the sheriff: can only seize such separate property as she possesses 

fur seiz'able. free from any restriction against anticipation. Scott v. Morley, 

20 Q. B. D. 120. See the form of the writ, ante, p. 57, and 

the chapter on " Execution in relation to Married "Women," 

post, p. 270. 



Stay of Execution. 

Execution Execution is not now stayed hy injunction from the Chancery 

or ier of Court Division, but hy an order of the Court in which the cause or 
in which ac- matter is pending. See the Judicature Act, 1873 (36 & 37 
ing. Viet. c. 66), sect. 24, suh-sect. 5 ; Wright v. Redgrove, 11 Ch. D. 

24 ; 40 L. T. 206 ; 27 W. R. 562 ; Powell v. Jewsbury, 9 Ch. D. 
39 ; 39 L. T. 213 ; 27 W. R. 142 ; Jersey (Earl) v. Uxbridge 
Rural Sanitary Authority, [1891] 3 Ch. 183 ; 64 L. T. 858. The 
circumstances under which an order staying execution will he 
granted is a matter heyond the scope of this work, but the 
authorities on the subject are collected in the note to the above 
section in the Annual Practice ; and see also Order LYIII., Rules 
16 and 17, of the Rules of the Supreme Court. Execution is 
usually stayed on an application made at the trial, and in that case, 
since the parties, or their representatives, are present when the 
order is made, no service or notice of it is necessary, though 
preferable. Osborne v. Tennant, 14 V. 136 ; United Telephone 
Co. v. Dale, 25 Ch. D. 778 ; 53 L. J. Ch. 295 ; 50 L. T. 85 ; 32 
W. R. 428. If the parties are not present when the order is 
made, notice of it should be served on the judgment creditor, 
and, also, if he is in possession, upon the sheriff. In cases of 
urgency, this notice may be by telegram to the creditor or the 
sheriff, or, as suggested by James, L. J., in Ex parte Langley, In 
re Bishop, 13 Ch. D. 110, at p. 122 ; 49 L. J. Bk. 1 ; 43 L. T. 
181 ; 28 W. R. 174, by telegram to some local solicitor directing 
him to serve notice of the stay. This course obviates the difficulty, 
which arose in that case, of the sheriff disbelieving the telegram. 
If the sheriff knows that a stay has been granted, and proceeds 
with the sale, he will be liable even though notice of the order 
has not been served upon him. United Telephone Co. v. Dale, 
ante. In Ex parte Langley, ante, it was held that it was the duty 
of the sheriff's officer, who received notice by telegram, pur- 
porting to be sent by solicitors in London, of an injunction 
being granted by the Court of Bankruptcy to restrain a sale in 



STAY OF EXECUTION. 81 

the country under an execution, to telegraph to the Court of 
Bankruptcy, or to the London agents of the sheriff, to ascertain 
whether an injunction has really Leen granted. This, however, 
it was held, is not the duty of the auctioneer who is conduct- 
ing the sale ; he is only bound to communicate with the 
sheriff's officer who has instructed him to sell. A sheriff's 
officer, who was not himself present at the sale, and who had no 
actual notice of the injunction, was in the same case held not to 
he responsible for the act of his deputy who allowed the sale to 
be continued after receiving notice by telegram of the stay. See 
also under title " Bankruptcy, &c," post, p. 359. 



Death of Parties. 

The sheriff may execute a writ of fieri facias and pay over How far 
the proceeds of the execution to the executor or administrator ti ^ a ff ec f a ar " 
if, after the writ has been sued out, the plaintiff die (Cleve v. execution. 
Veer, Cro. Car. 459), and if there is no executor or adminis- 
trator, the money must be brought into Court and deposited 
there. T/ioroayl/yood's Case, Noy, 73. So, also, it seems that 
if, before execution of a writ of fieri facias, the defendant die, 
the sheriff may execute the writ upon the goods of the defendant 
in the executor's hands. 

Goods seized under a fi. fa. are bound from the date of the 
teste of the writ, except as against purchasers in market overt. 
Therefore, where the execution debtor died between the issuing 
and the execution of the writ, the execution creditor's title was 
held to be paramount to that of the executor. Rank en v. Ilar- 
wood, 10 Jur. 794. 

Where a defendant died between eleven and twelve o'clock in 
the morning and afi.fa. was sued out against his goods between 
two and three in the afternoon of the same day, the Court set 
aside the execution as irregular. Chick v. Smith, 8 D. P. C. 337; 
4 Jui-. 86. 



Withdrawal from Possession. 

On the discharge of his claim by the execution debtor, the Withdrawal 

sheriff must, of course, withdraw immediately. As to the execu- in nn Vdiatciy e 

tion creditor's liability for failure to withdraw the sheriff from pos- claim is 

discharged. 
M. Q 



82 WRIT OF FIERI FACIAS. 

session after composition, see Phillips v. General Omnibus Co., 50 
L. J. Q. B. 112. 

Where a sheriff has taken possession of effects under a fi. fa. 
his officer should continue in possession, or if he abandon it 
even necessarily for a time, he must clearly and satisfactorily 
account for so doing, in order to sustain his right against others 
afterwards claiming under legal authority to seize the same 
goods ; and, in case of an abandonment on the return day of 
the writ, possession cannot afterwards be resumed. Ackland v. 
Pay nter, 8 Price, 95. 

Where a bailiff, under a sheriff's warrant addressed to 
him alone, and not to him and his assistants, seized goods in 
execution, left them in charge of keepers, and went away, and, 
during his absence, the goods were rescued from the keepers, it 
was held that the rescuer could not be convicted of having by 
threats and violence compelled the bailiff to abandon the seizure. 
R. v. Noonan, 10 Ir. E. C. L. 505, C. C. B. 
Re-entiy. Where the sheriff has entered and then withdrawn his writ in 

consequence of an arrangement having been come to between 
the execution creditor and the execution debtor, the sheriff 
cannot re-enter without fresh instructions from the execution 
creditor, and he is justified in executing a subsequent writ 
without notice to the former execution creditor. Shaw v. 
Kirhy, 52 J. P. 182. It is, moreover, submitted that the 
sheriff cannot re-enter after withdrawing from possession with- 
out written authority from the execution debtor, and which 
authority it is certainly always desirable to obtain before any 
temporary withdrawal. And see as to temporary withdrawal 
from possession, Crowder v. Long, 8 B. & C. 598 ; 3 M. & R. 17 ; 
and as to execution creditor's notice to withdraw, Walker v. 
Hunter, 2 C. B. 324; 15 L. J. C. P. 12. 

If an execution creditor abandons his process against certain 
goods seized under a fi. fa. in favour of a claimant, the sheriff 
has still a right to show in an action against him that the goods 
were the defendant's property. Baynton v. Harvey, 3 D. P. C. 344. 



Incidental to Seizure. 

If a sheriff wrongfully seizes goods which are afterwards 
taken from him by another wrong-doer, the owner of the goods 



INCIDENTAL TO SEIZURE. 83 

may in an action against the sheriff recover, as special damages, 
the amount necessarily paid to the other wrong-doer in order to 
get back the goods. Kerne v. Dilke, 4 Exch. 388 ; 18 L. J. 
Exch. 440. 

The allowance of a writ of error is sufficient to render a 
sheriff executing a fi.fa., after notice of such allowance, liable 
in an action of trespass, without any writ of supersedeas being 
issued, and notice to the sheriff is notice to the officers executing 
the process. Belshaw v. Mar-shall, 1 N. & M. 689 ; 4 B. & Ad. 
336. 

A sheriff who seizes the goods of a debtor under a fi. fa. is 
not, however, bound by an estoppel, which might have prevented 
the debtor himself from claiming the goods. Richards v. John- 
ston, 4 H. & N. 660 ; 5 Jur. N. S. 520 ; 28 L. J. Exch. 322. 

The execution of a fi. fa. is good though the sheriff be a 
trespasser, although in such a case the Court may, possibly, 
exercise its summary jurisdiction to avoid the execution. Smith's 
Leading Cases, 9th ed., Yol. I., p. 128. 



Duties of Sheriff on Service of Notice of Receiving Order. 

The Bankruptcy Act, 1890, provides by sect. 11, sub-sect. 1, Duties of 
that " Where any goods of a debtor are taken in execution and t ods taken 
before the sale thereof, or the completion of the execution by in execution 
the receipt or recovery of the full amount of the levy, notice is no tice of 
served on the sheriff that a receiving order has been made receiving 

° _ order. 

against the debtor, the sheriff shall, on request, deliver the 
goods and any money seized or received in part satisfaction of 
the execution to the official receiver, but the costs of the execu- 
tion shall be a first charge on the goods or money so delivered, 
and the official receiver or trustee may sell the goods, or an 
adequate part thereof, for the purpose of satisfying the charge ; " 
and by sub-sect. 2 of the same section that, " Where under an 
execution in respect of a judgment for a sum exceeding twenty 
pounds, the goods of a debtor are sold or money is paid in order 
to avoid sale, the sheriff shall deduct his costs of the execution 
from the proceeds of sale or the money paid, and retain the 
balance for fourteen days, and if within that time notice is 
served on him of a bankruptcy petition having been presented 
against or by the debtor, and a receiving order is made against 
the debtor thereon or on any other petition of which the sheriff 

g2 



84 



WRIT OF FIERI FACIAS. 

lias notice, the sheriff shall pay the balance to the official receiver, 
or, as the case may be, to the trustee, who shall be entitled to 
retain the same as against the execution creditor." 

For notes and cases on this section, see under title " Bank- 
ruptcy, &q." post, p. 359. 



Sale. 



Sale must Failing discharge of the claim by the execution debtor, and 

ioilow seizure ° . , . n 

■within reason- subject to supervening claims, a sale by the sheriff must follow 
a e une. seizure, and he must sell within a reasonable time and before 
the return of the venditioni exponas or he will be liable to an 
action (Jacobs v. Humphrey, 4 Tyr. 272 ; 2 C. & M. 413) ; and 
see as to consequent damages, Bales v. Wingfield, 2 N. & I. 
831 ; 8. P., Airefon v. Davis, 3 M. & Scott, 138 ; 9 Bing. 740. 
As to delay in selling at the debtor's request, see Wright v. 
Child, 1 L. R. Ex. 358; 35 L. J. Ex. 209 ; and as to postponed 
sale, see Botten v. Tomlinson, 16 L. J. 0. P. 138. 
If execution When the sheriff sells the goods of a debtor under an exe- 
20/., sale to be cution for a sum exceeding 20/. (including legal incidental 
by auction. expenses), the sale shall, unless the Court from which the 
process issued otherwise orders, be made by public auction, and 
not by bill of sale or private contract, and shall be publicly 
advertised by the sheriff on and during three days next preced- 
ing the day of sale. Bankruptcy Act, 1883, s. 145 ; and see 
Ex parte Berthier, 7 Ch. D. 882 ; Turner v. Bridget!, 8 Q. B. D. 
392 ; Mostyn v. Stock, 9 U. B. D. 432 ; Ex parte Villa rs, L. R. 
9 Ch. 432 ; 43 L. J. Bank. 76 ; Jones v. Parcel!, 11 Q. B. D. 430 ; 
and Ex parte Hall, 14 Ch. D. 132. 

And see as to application under this section to sell goods by 
private contract, Hunt v. Clifford, W. N. (1884) 86 ; the Bank- 
ruptcy Act, 1890 (53 & 54 Vict. c. 71), s. 12 ; and Ord. XLIII. 
rr. 8—15 of E. S. C, 1883. 

Rule 8 of these rules directs the application to be by sum- 
mons, a copy of which must be served on the sheriff, who must 
then send to the applicant a list of the names and addresses of 
all persons who have lodged writs of execution against the 
debtor with him. Rule 12 enables the sheriff to be heard on 
the hearing of the summons. 

Moreover, in Edge v. Kavanagh, 24 L. R. Ir. 1, the Court set 
aside the sheriff's public sale under a fi. fa. of the execution 
debtor's chattel interest in a farm of land on the ground that 



SALE. 85 

the sheriff did not take reasonable and proper care to advertise 
the sale and that the farm was sold at an undervalue. But in 
Cramer v. Murphy, 20 L. R. Ir. 572, where, after two adjourn- 
ments for want of bidders, the sheriff sold debtor's chattel interest 
in a farm, admittedly of value, for a sovereign, the Court, in 
the absence of evidence of collusion, refused to set aside the sale. 
If the sheriff sells goods seized under the same writ on different 
days, all the sales will be considered as one transaction. In re 
VilZars, Ex parte Rogers, L. R. 9 Oh. 432 ; 43 L. J. Bk. 76 ; 
30 L. T. 348 ; 22 W. R. 603. 

In an Irish case it has been held that a sale should, as a rule, 
take place on the execution debtor's premises ; but where there 
is good and sufficient reason for so doing, or the execution cre- 
ditor assents, the effects may be removed to a more suitable 
place for sale. See Re Purcell, 13 L. R. Ir. 489. 

It would certainly be better that the sheriff should obtain the 
debtor's licence to hold the sale upon his premises, as there 
appears to be some doubt as to his authority to use the premises 
for the purpose of a sale. 

The Court will not interfere to restrain a sheriff from selling 
goods, under afi.fa., on an offer of indemnity by a third person 
claiming the goods. Harrison v. Forster, 4 I). P. C. 558 ; 1 H. 
& W. 650. 

The sheriff must not sell goods greatly under their value, Sheriff must 
and if he cannot obtain a reasonable price he should return that ^° e atj y under 
he has taken goods which " remain in his hands for want of value, 
buyers and wait until he has been served with a writ of 
venditioni earponas, under which he will be obliged to sell them 
for whatever price may be offered." 14th ed. Chit. Archb. 
p. 840. But where a sheriff retained seized effects because of 
his considering a sale effected by his broker fraudulent, it was 
held that he was not justified in returning that the seized effects 
remained in his hands for want of buyers, but that he should 
have applied to the Court for further time on account of the 
special and unforeseen circumstances of the case ; whilst the 
inadequate price offered is in such a case the proper measure of 
damages in an action for false return. Barnard v. Leigh, ante, 
p. 78. 

Prima facie, a sheriff's sale is to be considered to be for ready 
money and immediate delivery, and he is not justified after he 
has sold as much as apparently satisfies the writ in going on to 
sell more upon a speculation that it is possible that actual 



86 



WKIT OF FIERI FACIAS. 



delivery of such goods, as he has already sold, may be prevented 
by loss or accident. Aldred v. Countable, 6 Q,. B. 370 ; 8 Jur. 
956. 
Sheriff not to It is the duty of the sheriff's officer to stop the sale as soon as 
necessary. " sufficient money is raised. Cook v. Palmer, 6 B. & C. 739; 9 D. 
& R. 723 ; per Dallas, C. J., in Stead v. Gascoigne, 8 Taunt. 527, 
"A sheriff has no right to sell more than necessary ;" and see on 
this point Ga/rler v. Chaplin, ante, p. 66. And if a sheriff sells 
more goods than are sufficient to satisfy an execution, he is liable 
in trover in respect of the excess. Batchelor v. Vyse, 4 M. & 
Scott, 552. 

The execution creditor is not precluded from becoming the 
purchaser of the seized property. Stratford v. Twt/nam, Jac. 
418 ; and see In re Vitlars, Mr parte Rogers, ante, p. 85. 

Bills of sale by the sheriff are not, it seems, necessary, except 
in the case of ships and shares of ships, and where the sold pro- 
perty is a term of years or any other kind of chattel real ; and, 
where necessary, such bills of sale should apparently be attested 
in manner provided for by the Bills of Sale Act, 1878. 

In the case of a bill of sale of chattels executed by an under- 
sheriff in the name of the sheriff, it is unnecessary to prove the 
latter's authority. Wood v. Renceliffe, 11 Jur. 707. And when 
a bill of sale is made by a sheriff's officer, the Court will pre- 
sume that he was duly authorized to make it. Robinson v. 
Collingwood, 17 C. B. (X. S.) 777. Moreover, a bill of sale 
signed by the deputy of the under-sheriff is valid. Cookson v. 
Fryer, 1 F. & F. 328. 

An action does not lie against the sheriff upon a promise to 
execute a bill of sale to the plaintiff's nominee. Cameron v. 
Reynolds, Cowp. 406. 

" In the case of sales by sheriffs of goods and chattels taken 
in execution, the sheriff does not impliedly warrant his title to 
sell, or warrant the purchaser against eviction ; he merely pro- 
mises that he does not, at the time he sells, know of any defect 
in his authority, or that he has no right or title to sell." Addison 
on Contracts, 9th ed. p. 545. 

" An execution levied by seizure and sale on the goods of a 
debtor is not invalid by reason only of its being an act of bank- 
ruptcy, and a person who purchases the goods in good faith 
under a sale by the sheriff shall in all cases acquire a good title 
to them against the trustee in bankruptcy." Bankruptcy Act, 
1883 (46 & 47 Yict. c. 52), s. 46, sub-s. 3. 



SALE. 87 

The sheriff must not stay an unreasonahle time on the pre- Sheriff not to 
mises after seizure and sale. Phyfair v. Mmgrove, ante, p. 78 ; reasonable 
and see -judgment of Pollock, 0. B., in that case. And see under t ™ e after , 
this head, Duncan v. Garratt, 1 C. & P. 169, and Farebrother v. sale. 
Annie;/, 1 Camp. 343. And a sheriff who has remained in posses- 
sion for an unreasonahle period at the instance of the execution 
creditor, and without the debtor's consent, is not entitled under 
sect. 46 of the Bankruptcy Act, 1883 (see now sect. 11 of the 
Bankruptcy Act, 1890), to charge against the debtor the costs 
of retaining such possession beyond what is a reasonable time. 
In re Finch, Ex parte The Sheriff of Essex, 65 L. T. 466; 40 
W. E. 175 ; 8 M. B. E. 284. 

A writ of firri facias, returnable "immediately after the exe- 
cution thereof," is not, however, executed until the whole amount 
indorsed is levied under it, and may, if in the hands of the 
sheriff, be put in force after the levy of a part. Jordan v. 
Binckes, 18 L. J. (N. S.) Q. B. 277 ; 7 Dowl. & L. P. C. 30. 

The purchaser from the sheriff is bound to remove the goods Purchaser 
within a reasonable time ; and if he leaves goods on demised ^ods^Tthin 
premises for his own convenience, the landlord can distrain on reasonable 
them. Ex parte The Pollen Trustees, Re Davis, 55 L. J. Q. B. 
217: 54 L. T. 304. 



Reporting result of Execution, &c, Return, and accounting for 

Proceeds. 
The sheriff must, as early as practicable, report to the execu- When result 

tion creditor, or his solicitor, the actual result of the execution, ? execution 

' to be reported, 

and, subject to the provisions of sect. 11 of the Bankruptcy Act, 
1890 (a), also promptly transmit the amount obtained, less his and amount 
fees and expenses (/>). And in Stockdah v. Hansard, 3 P. & D. J^jj^j^ 
330 ; 8 D. P. C. 522 ; 11 A. & E. 253, it was held that a reso- 
lution of the House of Commons ordering the sheriff to refund 
to the defendants, who were printers to the House of Commons, 
the amount levied upon their goods, did not authorize the sheriff 
to withhold the payment of the proceeds of the levy to the exe- 
cution creditor. 

After a return to a,f.fa. that the money is levied, the sheriff 



(a) See under title " Bankruptcy," post, pp. 359 et seq. 

(b) As to sheriffs' fees, see under title "Sheriffs' Fees, &c," post, 
p. 506. 



88 



WEIT OF FIERI FACIAS. 



Action for 
money levied 
to be com- 
menced with- 
in six years. 



Return of 
writ. 



is liable to an action for it, without any demand of payment. 
Bale v. Birch, 3 Camp. 347. But in an action brought against 
the sheriff for money levied under a fi. fa. without any previous 
demand, the Court will stay the proceeding upon payment of 
the sum levied without costs. Jefferies v. Sheppard, 3 B. & A. 
696. 

Although there may be strong reason to believe that a fi. fa. 
had been issued in order to defraud the execution of a bona fide 
creditor, and that the sheriff is a party to the fraud, the Court 
will not interfere summarily to compel the sheriff to pay over 
the proceeds of the levy to the bona fide creditor ; but the ques- 
tion of fraud must be tried by a jury. Barber v. Mitchell, 2 
D. P. C. 574. 

By 3 & 4 Will. 4, c. 42, s. 3, an action for money levied on 
any fi. fa. shall be commenced and sued out within six years 
after the cause of such action. And see Rules of Supreme Court, 
1883, Ord. LII. r. 2, and in connection therewith Belinar v. 
Frcemantle, 3 Ex. D. 237 ; 47 L. J. Ex. 767 ; 26 W. R. 683. 

A sheriff cannot be held liable for the non-return of a writ of 
fi. fa. until he has been called upon, and has neglected to make 
a return, and such neglect as will give a cause of action must be 
specifically alleged in the statement of claim. Shaw v. Kirby, 
ante, p. 82. The defendant as well as the plaintiff may rule 
the sheriff to return the writ. France v. Clarkson, 2 D. P. C. 
532 ; and see Edmunds v. Watson, 2 Marsh. 330 ; 7 Taunt. 5 ; 
and Richardson v. Trundle, 8 C. B. N. S. 474 ; 29 L. J. C. P. 
310. 

Where, however, a sheriff has applied to the Court under the 
Interpleader Act, and his rule is discharged, he is entitled to a 
reasonable time for the return of the writ after the disposal of 
the rule, before an attachment can issue against him. Rex v. 
Hertfordshire {Sheriff), 5 Dowl. P. C. 144. And see as to 
return in the case of interpleader proceedings, Clearer v. Fisher, 
2 Dowl. N. S. 292 ; and Angell v. Baddeley, 3 Ex. D. 49 ; 47 
L. J. Ex. 86. 

And no sheriff shall be liable to be called upon to make a 
return of any writ of process, after the expiration of six 
months from the date at which he ceases to hold office. Sheriffs 
Act, 1887, s. 28 (3). Rex v. Jones, 2 T. E. 1 ; 1 E. E. 411. It 
was held under the earlier Act (20 Geo. 2, c. 37) that these 
months are lunar months : Rex v. Adderley, 2 Doug. 463 ; but 
see also Webb v. Fainnancr, 3 M. & W. 473. 



REPORTING RESULT OF EXECUTION, ETC. 89 

The fact of a compromise between the parties, or of a claim 
for rent by the landlord, does not relieve the sheriff from the 
necessity of making a return. Bakon v. Meggat, 3 D. P. C. 557. 

When a sheriff has appointed a special bailiff to execute a writ 
oifi.fa. at the request and peril of the plaintiff, he should move 
to set aside any rule subsequently obtained by the plaintiff upon 
him to return the writ. If, instead of doing so, he returns that 
he appointed a special bailiff, to whom he refers as to the execu- 
tion of the writ, the return may be set aside, even on motion by 
the plaintiff. Tait 8f Co. v. Mitchell, 22 L. E. Ir. 327. 

" A sheriff shall not return to a writ that he has delivered 
it to a bailiff of some liberty not heretofore recorded, in the 
Exchequer." Sheriffs Act, 1887 (50 & 51 Yict. c. 55), s. 10, 
sub-s. 2. In making a return, a reasonable degree of certainty 
is sufficient. Reynolds v. Barford, 8 Scott, N. P. 233 ; 7 M. & 
Gr. 449 ; 13 L. J. C. P. 177. It is no part of a sheriff's duty 
to annex the officer's name to the return. Hill v. Middlesex 
{Sheriff), Holt, 217; 7 Taunt. 8. If the sheriff returns that 
the premises of the defendant are so barricaded that he is 
unable to ascertain whether the defendant has goods within the 
bailiwick on which a levy may be made, it is a bad return, as 
he should state either that the defendant has goods or that he 
has none. Munk v. Cass, 9 D. P. C. 332. 

The sheriff's return of nulla bona is prima facie evidence that Return of 
the party had no goods at that time. Arril v. Mordant, 3 L. J. nulla bona - 
(N. S.) K. B. 148 ; S. C, 3 N. & M. 871. In other words, the 
meaning of a return of nulla bona is that there are no goods 
applicable to the plaintiff's writ. S/ialfock v. Garden, 6 Ex. 
720 ; 2 L. M. & P. 466 ; 21 L. J. Ex. 200. 

Nulla bona is a proper return where the sheriff has paid the 
proceeds of an execution either in discharge of rent or of a prior 
writ. Wintle v. Freeman, 1 Gk & D. 93; 11 A. & E. 539; 
Eeenan v. Evans, 4 Scott, N. P. 2 ; 1 Dowl. N. S. 204 ; 11 L. J. 
(N. S.) C. P. 1 ; and per Cave, J., In re Pearce, Ex parte Cross- 
thwaite, 14 Q. 13. D. 969. 

Where, however, a sheriff, after being ruled to make a return 
to a Ji.J'a., made a return that he had sold the goods seized, and 
had received for them sufficient to satisfy the moneys directed 
to be levied, but that he afterwards had notice from the land- 
lord that two quarters' rent was due, that ho had applied to the 
landlord, but had not been permitted by him to have evidence 
of his claim, and that though he, the sheriff, had used due 



90 



WEIT OF FIERI FACIAS. 



Return of 
withdrawal 
from posses 
sion. 



diligence, he was unable to ascertain whether the landlord had 
any claim in respect of the rent, the Court quashed the return 
for insufficiency, and allowed an attachment to issue. Mall v. 
Crawley, 11 W. P. 344 ; and see Hall v. Sadden, 7 L. T. N. S. 
721. And the return of nulla bona was upheld where, the 
sheriff having entered under a fi. fa., the officers of the Customs, 
before sale by him, seized the goods in his possession under a 
warrant to levy a penalty incurred by the defendant for an 
offence against the revenue laws. Grove v. Aldridge, 2 L. J. 
(N. S.) C. P. 44 ; S. C, 9 Bing. 428 ; 2 M. & Scott, 568. 

Where a sheriff returns nulla bona it is sufficient prima facie 
evidence for the plaintiff to prove that the sheriff seized the 
goods. Stubbs v. Lainson, 2 Gale, 122 ; 1 M. & W. 728. If a 
sheriff returns a seizure under that and another writ, it is bad. 
Wintle v. Chetwynd {Lord), 7 Dowl. P. C. 554; 1 Will. Woll. & 
H. 581. But it is a sufficient return that he has seized goods 
of the defendant by virtue of several previous writs of fieri facias 
according to their priority [Chambers v. Coleman, 9 D. P. C. 588 ; 
and In re Pearce, Ex parte Crossthwaite, 14 Q. B. D. 966) ; and 
see, as to return in case of sheriff's concurrent receipt of several 
writs, Ashcorth v. Uxbridge, ante, p. 64. The sheriff ought in all 
cases to return some value to the goods seized, but the omission 
to do so is an irregularity only, and not a nullity. Chambers v. 
Coleman, ante; and see Barton v. Gill, 1 D. & L. 593; 12 M. & 
W. 315; 13 L. J. Ex. 83. 

Moreover, where there are two writs, and the goods remain in 
the sheriff's hands for want of buyers, he must make some 
return as to the value of the goods, although he will not be 
bound by the amount stated. Wintle v. Chetwynd, ante. See 
also Barnard v. Leigh, ante, pp. 78, 85. 

A return of withdrawal from possession in pursuance of an 
order from the execution creditor's solicitor is good. Levy v. 
Abbott, 7 D. & L. 185 ; 4 Ex. 588 ; 19 L. J. Ex. 62. 

The Court will not compel the sheriff to give a specific return 
of the particulars and proceeds of goods sold under a fi. fa. on 
the ground that his officer has wasted the goods. Willett v. 
Sparrow, 2 Marsh. 293 ; 6 Taunt, 576. 

Where a sheriff returns that he has retained a sum for 
possession money, it is no ground for quashing the return that 
the plaintiff is charged with more possession money than the 
amount payable by him for keeping possession. lb. 

Where a sheriff had failed to make any return to a writ of 



EEPORTING RESULT OF EXECUTION, ETC. 91 

fi.fa.y notwithstanding an order of course directing him to make 
his return forthwith, he was, upon an application ex parte 
against him for an order nisi, directed, upon the authority of 
Evans v. Davies (7 Beav. 81), to pay both the costs of the order 
nisi and of the previous order. In re He iron'* Estate, Hall v. 
Ley, 12 Ch. D. 795 ; 48 L. J. Ch. 688. 

It is a sufficient answer to an attachment for not returning 
a writ that it was never turned over to the sheriff by his 
predecessor. Thomas v. Newman, 2 Dowl. N. S. 33. 

An attachment against a late sheriff for disobedience to a 
judge's order calling on the " sheriff " to return a writ instead 
of " the late " sheriff is irregular, and may be set aside, though 
the sheriff has not applied to set aside the order. Reg. v. 
Cornwall {Sheriff), 7 1). P. C. 600; and see Yaroth v. Hopkins, 

2 0. M. &E. 250; 3D. P. C. 711. 

The act of ruling the sheriff to return a fi. fa. does not estop 
the plaintiff from showing that the writ was not a good writ, 
neither does the filing it of record affirm the existence of a void 
writ. Jones v. Williams, 8 M. & W. 340 ; 9 D. P. C. 702. 

And a plaintiff who has ruled a sheriff to return a writ of 
fi.fa., which the latter has omitted to do at the time specified, 
does not waive his right of attachment by afterwards directing 
the sheriff to proceed with the execution. Hou-itt v. Rickaby, 
11 L. J. (N. 8.) Ex. 73; 9 M. & W. 52. 

And see as to liability for not returning a fi.fa., R. v. Sheriff Liability for 
of Devon, Nathan v. Ehoorthy, 17 L. J. (N. S.) C. P. 116; and not rcturning - 
Reg. v.Essex {Sheriff), 8 Scott, 363; 6 Bing. N. C. 150; 8 
D. P. C. 5. 

No action is maintainable, without an averment of special Action 
damage, against a sheriff for a false return to a, fi.fa., where no far false 
damage could necessarily result to the creditor. Wylie v. Birch, return - 

3 Gh & D. 629 ; 4 Q. B. 566 ; 12 L. J. Q. B. 260 ; and see 
Stimson v. Farnham, L. It. 7 Q. B. 175 ; 41 L. J. Q. B. 52. 

If after a return to a fi.fa. that part only of a debt has been 
levied, and that the debtor has not goods whereon the whole 
can be levied, the creditor accepts that part on account, he does 
not thereby waive his right of action for a false return. Holmes 
v. Clifton, 4 P. & D. 112; 10 A. & E. 673 ; 2 P. & D. 556; 
and see as to levying part only of the debt and false return, 
Shale v. Hawley, 14 L. J. (N. S.) Ex. 217 ; 13 M. & W. 757. 
And an action lies against the sheriff for a false return to a 
fi.fa. notwithstanding the plaintiff, before commencing the suit, 



92 WRIT OF FIERI FACIAS. 

has charged the original defendant in execution. Wordall v. 
Smith, 1 Camp. 332. 

Under the plea of " not guilty " in an action against the 
sheriff for a false return to a writ of fieri facias, the only matter 
in issue is the fact of the sheriff having made a false return. 
Wright v. Lainson, 6 L. J. (N. S.) Ex. 197 ; 2 M. & W. 739 ; 
and see Lewis v. Alcock, 7 L. J. (N. S.) Ex. 55 ; 3 M. & W. 
188. 

In an action against the sheriff for a false return of nulla 
bona to a writ of fieri facias, the allegation in the declaration 
that the defendant took goods and chattels, in execution, of the 
value of the moneys indorsed on the writ, " and then levied the 
same thereout," imports not only a seizure and a sale under the 
plaintiffs writ, but also that the sheriff had in his hands the 
proceeds of the sale, for the purpose of handing them over to 
the plaintiff. Brewe v. Lainson, 9 L. J. (N. S.) Q. B. 69 ; 11 
Ad. & E. 529 ; 3 P. & D. 245. 

The Court will not try on affidavit whether the return made 
by a sheriff to a writ is false, even though a strong case is 
made out showing fraud and collusion ; but the party must 
resort to his remedy by action, and if the sheriff takes on 
himself to state facts which constitute a good return in point 
of law, the only remedy is by an action for a false return. 
Goubot v. De Crony, 2 D. P. C. 86 ; 1 C. & M. 772 ; 3 Tyr. 
906. 

When the solicitor of a judgment creditor delivered to the 
sheriff a fi. fa. returnable on a day certain, with directions by 
letter not to execute it till the return, unless another execution 
should come in the meantime, and afterwards sent in an alias 
accompanied with the same directions, and the sheriff upon 
another execution coming in issued warrants on and executed 
both writs on the same day, giving precedence to the last execu- 
tion, and satisfying that wholly first out of the money levied, and 
then paid over the remainder in part satisfaction of the execution 
first delivered, and returned that payment and nulla bona as to 
the residue : — Held, that the plaintiff could not maintain an 
action against the sheriff for a false return, and that a nonsuit 
on that ground had been properly directed. Pringle v. Isaac, 11 
Price, 445. 

In Eemmett v. Laurence, 15 Q. B. 1004; 20 L. J. Q. B. 25; 
14 Jur. 1067, a sheriff returned to a fi. fa. against W., that 
before the delivery thereof to him another fi. fa. against W. 



REPORTING RESULT OF EXECUTION, ETC. 93 

was delivered to him, and that by virtue thereof he seized the 
goods of W. In an action against the sheriff for a false return : 
— held, that the sheriff was not estopped by his return from 
showing that the goods seized under the first writ were not the 
goods of W. 

If in an action for a false return of nulla bona to a fi.fa. the 
plaintiff shows the debtor to be possessed of certain goods, it is 
no defence for the sheriff to show a prior execution to an 
amount of greater value, if to that execution the sheriff also 
returned nulla bona, nor if the sheriff has the proceeds of the 
goods in his hands. Nor is it any defence to an action for a 
false return of nulla bona to a fi. fa. to show that it was 
delivered at the sheriff's office at a quarter past five o'clock on 
the day on which it was returnable. Toicne v. Croicder, 2 
C. & P. 355. And where in an action against a sheriff for a 
false return of nulla bona, the defence is that at the time of 
receiving the plaintiff's writ the sheriff had in his hands other 
writs of execution, to an amount sufficient to cover the whole of 
the defendant's property, the plaintiff may give evidence to 
show that those other judgments and executions were fraudulent 
and void against creditors, without proving that the sheriff was 
party to the fraud. Imray v. Magna y, 2 Dowl. N. S. 531 ; 11 
M. & W. 267 ; 12 L. J. Exch. 188. 

It, moreover, appearing in the latter case [Imray v. Mag nay) 
that the sheriff handed over the money in defiance of notice to 
retain the proceeds in his hands until the first execution was set 
aside, he was held liable for misconduct in lending himself to 
the other party. And see Warmott v. Young, 8 D. & R. 442 ; 
5 B. & C. 660 ; see also Shattoek v. Carden, 21 L. J. (N. S.) Ex. 
200 ; 6 Ex. 725 ; and Christopherson v. Burton, ante, p. 64. 

And see as to actions for false return of nulla bona in connec- 
tion with priority of executions, Saunders v. Middlesex [Sheriff), 
3 B. & A. 95 ; and Dennis v. Whetham, L. R. 9 Q. B. 345 ; 43 
L. J. Q. B. 129. See also as to false return, Kelly v. Broicne, 
12 L. R. Ir. 348, 354 ; Harrison v. Paynter, ante, pp. 64, 72 ; 
Levy v. Hale, 29 L. J. (N. S.) C. P. 127 ; 1 L. T. N. S 
132; Barnard v. Leigh, ante, pp. 78, 85; Wylie v. Pearson, 
Dowl. N. S. 807 ; 6 Jur. 806 ; and Jones v. Clayton, 4 M. & S. 
349. 

In discussing a rule nisi for an attachment against a sheriff 
for an insufficient return to a writ, the Court will not take 
cognizance of the return unless an office copy is produced, 



94 WRIT OF FIERI FACIAS. 

verified by affidavit by a party as to Iris belief that no sufficient 
return has been made. Wilton v. Chambers, 5 N. & M. 431 ; 
1 H. & W. 582. 

If a sheriff continues in possession after the return day of 
the writ, that irregularity makes him a trespasser ah initio, but 
will not support the allegation of a new trespass committed by 
him after the acts which he justifies under the execution. 
Aitkenhead v. Blades, 5 Taunt. 198 ; 1 Marsh. 17. 

As to sheriff's liability to pay oyer amount levied, see ante, 
pp. 87 et seq. 

As to " Eules to Eeturn " and " Attachment of Sheriff," see 
under " Liability and Eights of Sheriff and Eemedies against 
Sheriff," post, p. 494. 



Forms of Return. 

1 . Return of Fieri Feci. 

By virtue of this writ to me directed, I have caused to be made 
of the goods and chattels of the -within-named C. D. the moneys [or 
" £ "] and interest within mentioned, which I have ready at 

the day and place within mentioned, to be rendered to the within- 
named A. B., as I am within commanded. 

The answer of S. S., Esq., Sheriff. 

2. Return of Nulla Bona. 

The within-named C. D. has no goods or chattels in my bailiwick 
whereof I can cause to be made the moneys [or " £ "] and 

interest within mentioned, or any part thereof, as I am within com- 
manded. 

The answer of S. S., Esq., Sheriff. 

3. Return of Fieri Feci for Part and Nulla Bona as to Residue. 

By virtue of this writ to me directed, I have caused to be made 
of the goods and chattels of the within-named C. D. to the value of 
£ which said money I have ready at the day and place 

■within mentioned, to be rendered to the -within-named A. B. and I 
further certify and return that the said C. D. hath no more goods 
or chattels in my bailiwick, whereof I can cause to be made the 
residue of the within-mentioned moneys [or " £ '] and interest 

or any part thereof, as I am within commanded. 

The answer of S. S., Esq., Sheriff. 

4. Return of Fieri Feci for Part and that Sheriff has paid Part of 
Sum levied to the Landlord for Rent, and a Retainer for Pound- 
age, Sfc. 
By virtue of this writ to me directed, I have caused to be made 
of the goods and chattels of the within-named C. D. to the value 



FORMS OF RETURN. 

of £ ; £ , part whereof, I have paid to L. L. the land- 

lord of the premises on which the said goods and chattels were 
seized under the said writ, for rent (not exceeding for one year) due 
to him for the said premises on last, and £ further 

part whereof, I have retained in my hands for poundage, officer's 
fees, costs of levying, and other my expenses of the execution ; and 
£ , the residue whereof, I have ready at the time and place 

within mentioned to be rendered to the within-named A. B. as 
within commanded. And the said C. D. hath not any more goods 
or chattels in my bailiwick, whereof I can cause to be made the 
residue of the within moneys [or " £ "] and interest, or any 

part thereof, as I am within commanded. 

The answer of S. S., Esq., Sheriff. 



5. The Like, for Rent and Taxes; to be annexed to the Writ. 

I certify and return, that, by virtue of the writ hereto annexed, I 
have caused to be made of the goods and chattels of C. D. in the 
said writ named in my bailiwick, to the value of £ ; £ 

part whereof, at the request of the said within-named A. B. I have 
paid to L. L. of the landlord of the premises whereon the 

goods and chattels were seized for rent (not exceeding for one year) 
due to the said landlord for and in respect of the said premises on 
last, and which said premises at the time of the seizure by 
me of the said goods and chattels, under and by virtue of the said 
writ, were in the tenure and occupation of the said C. D. as tenant 
thereof to the said L. L. ; £ further part whereof, I have 

paid for taxes (not exceeding one year) due from the said C. D. to 
her Majesty ; £ further part whereof I have retained for 

poundage, officer's fees, costs of levying, and other my expenses of 
the execution ; and £ , residue thereof, I have paid to the 

said A. B. [or, if not already paid, see the next form]. And 1 further 
certify that the said C. D. hath no more goods or chattels in my 
bailiwick whereof I can cause to be made the residue of the said 
moneys [or " £ "] and interest, or any part thereof. 

By the same sheriff. 

[Make the following indorsement on the writ] : — The execution of 
this writ appears in the schedule hereunto annexed. 

The answer of S. S., Esq., Sheriff. 



6. The Like, for Taxes only. 

By virtue of this writ to me directed, I have caused to be made 
of the goods and chattels of the within-named C. 1). to the value of 
£ ; £ part whereof, I have paid to L. L. for Queen's 

taxes (not exceeding for one year) due for and in respect of the 
premises whereon the goods and chattels were seized by me at the 
time of seizing the said goods and chattels and £ further 

part whereof I have retained in my hands for poundage, officer's 
fees, costs of levying, and other my expenses of the execution, and 
£ , the residue of the said £ ,1 have ready at the time 

and place within mentioned, to be rendered to the said A. B. as I 
am within commanded : And the said C. D. hath not any more 
goods or chattels in my bailiwick whereof I can cause to be made 



96 WRIT OF FIERI FACIAS. 

the residue of the within-mentioned moneys [or " £ "] and 

interest, or any part thereof, as I am within commanded. 

The answer of S. S. Esq., Sheriff. 

7. Return of Fieri Feci as to Part, and an Interpleader Order as to 

Residue. 

I certify and return that by virtue of the writ hereunto annexed 
I have caused to be made of the goods and chattels of C. D. 
in the said writ named, to the value of £ ; £ , part 

whereof I have retained in my hands for poundage, officer's fees, 
costs of levying and other my expenses of the execution ; and 
£ residue whereof, I have ready at the time and place 

within mentioned to render to A. B. in the said writ named for 
part of the moneys [or "£ "] and interest in the said writ 

named. And I further certify, that I caused to be seized divers 
other goods and chattels as and for the goods and chattels of the 
said C. D. in my bailiwick, which were afterwards claimed by E. F. 
as his goods and chattels. And I further certify and return that 
in obedience to an interpleader order made in respect of that claim by 
the Honourable Mr. Justice , a copy whereof is hereto annexed, 

marked " B," I sold the same for the sum of £ , being the 

best price I could obtain for the same, £ , part whereof, I 

have paid and retained for fees and expenses for and on account of 
the seizing and keeping possession and sale by auction of the said 
goods and chattels ; and £ residue whereof, I have paid into 

Court as the proceeds of the said goods and chattels [all this must 
agree with the interpleader order\ And I further certify and 
return, that the said C. D. hath not any more goods or chattels in 
my bailiwick, whereof I can cause to be made the residue of the 
moneys [or " £ "] and interest in the said writ mentioned or 

any part thereof. 

The answer of S. S., Esq., Sheriff. 

8. Return that the Goods taken were Let to Defendant, and remain in 

Sheriff's hands for want of Buyers, 

By virtue of this writ to me directed, I have taken in execution 
the interest and property of the within-named C. D. of and in 
certain goods and chattels of E. F. now in a certain messuage and 
premises situate at , in my bailiwick, subject to the right of 

C. D. to use and enjoy the same during a certain term the said 
goods and chattels having, before the said writ was delivered to 
me, been demised and let by the said E. F. to the said 0. D. for 
such term, which is still unexpired, and which said interest and 
property of the said C. D. of and in the said goods and chattels 
being of the value of the moneys [or " £ "] and interest 

within mentioned [or "of the value of £ "], remains in my 

hands unsold for want of buyers. {If the value returned be less than 
the amount of moneys and interest ordered to be levied by the writ, 
proceed to return nulla bona for the residue as in No. 3, supra.) 
Therefore I cannot have the money within mentioned before Our 
Lady the Queen at the day and place within mentioned, as I am 
within commanded. 

The answer of S. S., Esq., Sheriff. 



FORMS OF RETURtf. 07 



9. Return that the Sheriff has taken Goods, ivhich remain in his hands 

for want of Buyers. 

By virtue of this writ to me directed, I have taken goods and 
chattels of the within-named C. D. in my bailiwick to the value 
of £ [or " of the moneys "] and interest within mentioned, 

which goods and chattels remain in my hands unsold for want of 
buyers. Therefore I cannot have that money \or " those moneys 
and interests "] before Our Lady the Queen at the day and place 
within mentioned, as I am within commanded. {If the value 
returned he less than the amount of moneys and interests ordered to 
he levied hy the writ, proceed to return nulla bona for the residue, 
as in Form No. 3, supra.) 

The answer of S. S., Esq., Sheriff. 

10. The Like, where part of the Goods have been Sold and the rest 

remain in hand, Sfc. 

By virtue of this writ to me directed, I have caused to be made 
of the goods and chattels of the within-named C. D. to the value of 
£ , and have exposed them to sale from day to day, and have 

thereof sold to the value of £ , which money I have ready 

before Our Lady the Queen at the day and place within mentioned, 
to be rendered to the within-named A. B. as I am within com- 
manded ; and the residue of the said goods and chattels remain in 
my hands unsold for want of buyers. {If the value returned be less 
than the amount of moneys and interest ordered to be levied by the writ 
make a return nulla bona for the residue, as in Form No. 3, supra.) 

The answer of S. S., Esq., Sheriff. 

11. Return of Seizure under a prior Writ, and that Goods are in 

hand Unsold for want of Buyers. 

I certify and return to the within writ, that, before the delivery 
to me thereof, another writ of fieri facias of Our Lady the Queen 
was on delivered to me, against the goods and chattels of the 

within-named C. D. in my bailiwick, at the suit of W. W. return- 
able before Our Lady the Queen in the Division of the 
High Court of Justice immediately after the execution thereof for 
£ , together with interest as therein mentioned and indorsed 
to levy £ , besides [Jj'c. as in indorsement] : And I further 
certify and return, that by virtue of the within writ, I caused to be 
seized and taken in execution goods and chattels of the said C. D. 
in my said bailiwick, of the value of £ , which said goods 
and chattels remain in my hands unsold for want of buyers. And 
I further certify and return, that the said C. D. hath not any other 
or more goods or chattels in my said bailiwick whereof I can cause 
to be made the moneys [or "£ "] and interest within-mentioned, 
or any part thereof as I am within commanded. 

The answer of S. S., Esq., Sheriff. 

12. The Like, and (hat the Defendant is a Beneficed Clerk. 

The within-named C. D. has no goods or chattels, or any lay fee, 
in my bailiwick which I can seize or take, or pay or deliver to the 
M. II 



98 WRIT OF FIERI FACIAS. 

within named A. B. or whereof I can cause to be made the moneys 
[or " £ "] and interest within mentioned, or any part thereof, 

as I am within commanded, but I do hereby certify, that the said 
C. D. is a beneficed clerk, to wit, rector of the rectory [or " vicar of 
the vicarage "] and parish church of in my county, which said 

rectory [or "vicarage"] aud parish church are within the diocese 
of the reverend father in God , by divine permission lord 

bishop of [or " within the peculiar jurisdiction of the very 

reverend the dean and chapter of the cathedral church of St. Peter 
of York, and instituted to try them as ordinary," as the case may bc~\. 

The answer of S. S., Esq., Sheriff. 

13. Return of Mandavi Ballivo. 

By virtue of this writ to me directed, I made my mandate to the 
bailiff of the liberty of , in my county, to whom belongeth 

the execution and return of all writs and processes within the said 
liberty, and without whom no execution of this writ could be made 
by me within the same, which said bailiff hath returned to me, that 
by virtue of my said mandate to him thereupon directed as afore- 
said, he hath caused to be made of the goods and chattels of the 
within named C. D. the moneys [or " £ "] and interest within 

mentioned, and that he hath that money ready before Our Lady the 
Queen at the day and place within mentioned, as by my said 
mandate it was commanded. 

The answer of S. S., Esq., Sheriff. 



Fees. 
See under "Sheriffs' Fees, &e.," post, p. 506. 



99 



Chapter V. 

WRIT OF ELEGIT. 

PAGE 

Introductory ---------99 

Forms of Writ 103 

Execution of Writ : 

Inquisition -------- 106 

Charge to the Jury ------- 107 

Juror's Oath and Affirmation - - - - - 107 

What may be extended ------- 108 

What may not be extended - - - - - -111 

Adverse Claims 112 

Several Writs and Priorities - - - - - -113 

Finding of the Inquisition - - - - - -114 

Delivery of the Lands 114 

Return - - - - - - - - -114 

Forms of Return - - - - - - -115 

Fees - - 116 



Introductory. 

Elegit, the writ used when the judgment creditor desires to 
proceed against the lands of the debtor, is the third of the writs 
of execution enumerated in Ord. XLIL r. 8, of the Rules of 
the Supreme Court, and derives its name from the words in the 
form " chose {elegit) to be delivered to him." Under a writ of 
fi.fa. the goods are sold and the proceeds of the sale paid to 
the creditor in satisfaction of his debt ; but under a writ of 
elegit the lands and (formerly) the goods themselves are deli- 
vered into the hands of the creditor at a valuation. The pro- 
visions of Ords. XLIL and XLIIL, and of the statutes 29 
Car. 2, cc. 3, 7 ; 13 Eliz. c. 5, and 50 & 51 Vict. c. oo, apply- 
equally to elegit and fi, fa., in which connection therefore see 
under title " Writ of Fieri Facias,' 1 '' aide, pp. 52 et seq. 

On receipt of the writ the sheriff must indorse upon it the Date to be 
date of delivery as required by the Statute of Frauds, and ^2*8^. 
also, if required, give the receipt prescribed by sect. 10 of the if required. 

ii 2 



100 WRIT OF ELEGIT. 

Sheriffs Act, ante, p. 57. Under the old law (Statute of 
Westminster, 13 Edw. I. c. 18), this writ extended to the 
debtor's goods and chattels, except his oxen and beasts of the 
plough, and one-half of his lands ; but since 1 & 2 Vict. c. 110, 
it has extended to the whole of his lands ; while sect. 146 of 
the Bankruptcy Act, 1883 (46 & 47 Yict. c. 52), provides that 
it shall not extend to goods. It is not, therefore, intended to 
discuss that branch of the subject in this work, but the reader 
may be referred to the last important case bearing on the 
matter, Ex parte Abbott, 15 Ch. D. 447, and to Hough v. Windus, 
12 Q. B. D. 224, where the above section of the Bankruptcy 
Act was considered. 
Process of The writ having been delivered to the sheriff of the county in 

■writ. which the lands are situated, he must forthwith proceed to 

summon and impanel a jury to inquire what the lands are and 
to ascertain their value. The inquisition having been held the 
sheriff then makes a return to the writ, in which he states that 
he has delivered the lands to the judgment creditor. The 
return is the delivery of possession, and vests the land in the 
judgment creditor until the debt and interest is satisfied (a), and 
whenever this is done the judgment debtor enters into his land 
again. " The sheriff does not give the creditor actual possession 
of the land itself, but the effect of his return is, that it vests 
the legal estate in the creditor. The creditor can then bring 
ejectment, if it is an estate in possession, or he can sue for the 
rent, if it is a reversion." Per Mellish, L. J., in Hat ton v. 
Hay wood (L. R. 9 Ch. 236). If the interest of the debtor in 
the lands consists of an equitable interest which is not extendible 
at law, a receiver will be appointed by the Court on the appli- 
cation of the creditor. The relief granted by the appointment 
of a receiver, which is commonly called "equitable execution," is 
not in fact execution, but equitable relief, which is granted be- 
cause there is a hindrance in the way of execution at law. 
Atkins v. Shephard, 43 Ch. D. 131. Since the coming into 
operation of the Judicature Act, 1873 (36 & 37 Yict. c. 66), it 
is not necessary for a judgment creditor, who seeks to obtain a 
receiver of his judgment debtor's equitable interest in land, pre- 
viously to sue out an elegit (Ex parte Evans, In re Wathins, 13 
Ch. D. 252), and the Court may even grant a receiver where the 

(a) For the purposes of the Bankruptcy Act execution is completed by 
seizure and the creditor's title is completed, and delivery in execution is 
" a seizure," although no return is made to the writ. Re Ilobson, 33 Ch. 
D. 493 ; 55 L. J. Ch. 754. 



INTRODUCTORY. 101 

party applying has a legal remedy, and could have obtained 
possession under an elegit (b). In re Pope, 17 Q. B. D. 743 ; 55 
L. J. Q. B. 522. 

By 1 & 2 Viet. c. 110, s. 13, judgments are to operate as a Effect of 
charge on real estate, subject to such charge not being enforce- i^on^he 
able until after the expiration of one year, and to the protection land - 
given by courts of equity to purchasers for valuable considera- 
tion without notice. By 2 & 3 Vict. c. 11, s. 5, as against pur- 
chasers and mortgagees without notice, no judgments, &c," 
" shall bind or affect any lands, tenements or hereditaments or 
any interest therein further or otherwise or more extensively in 
any respect, although duly registered than a judgment of one 
of the superior Courts aforesaid, would have bound such pur- 
chaser or mortgagee before the said Act of the first and second 
years of the reign of her present Majesty, where it has been 
duly docketed according to the law then in force ;" whilst sect. 4 
of that Act contains a provision for re-registration of judgments, 
&c, every five years. By 3 & 4 Vict. c. 82, s. 2, no judg- 
ment, decree, &c, is to aifect real estate as to purchasers, 
mortgagees, or creditors, unless and until registered as therein 
mentioned, " any notice of any such judgment, decree, order or 
rule to any such purchaser, mortgagee or creditor in anywise 
not withst anding. ' ' 

By 18 Vict. c. 15, s. 4, no judgments, &c., registered under 
3 & 4 Vict. c. 82, are to affect lands, &c, as to purchasers, &c, 
until registered; and by sect. 5, purchasers, mortgagees and 
creditors are protected against judgments not re-registered as to 
lands, &c, notwithstanding notice of such judgments, &c. As 
to judgments entered up after the 23rd of July, 1860, it is 
provided by 23 & 24 Vict. c. 38, ss. 1 and 2, that, to affect 
lands, &c, of whatever tenure as to bond fide purchasers for 
valuable consideration, or mortgagees with or without notice of 
the judgment, &c, writs of execution thereof must be registered 
before the execution of the conveyance or mortgage, and pay- 
ment of the conveyance or mortgage-money as therein men- 
tioned. As to judgments entered up after the 29th of Jul}-, 
1864, by 27 & 28 Vict. c. 112, ss. 1 and 3, such judgments are 
not to affect land of whatever tenure until it shall have been 
actually delivered in execution by virtue of a writ of elegit 
or other lawful authority in pursuance of such judgment, &c, 

(b) For further information on the subject of equitable execution ,seo 
Edwards on Execution. 



102 WRIT OF ELEGIT. 

and such writs of execution shall he registered in manner pre- 
scribed hj 23 & 24 Yict. c. 38. And with regard to the neces- 
sity of actual delivery in execution under the writ of elegit, 27 
& 28 Yict. c. 112, makes no distinction in that respect between 
hereditaments corporeal and incorporeal, and equitable interests 
in land are also within that Act. Hatton v. Haywood, L. R. 9 
Ch. 229 ; 43 L. J. Ch. 372. And see as to actual delivery 
in execution within the meaning of 27 & 28 Vict. c. 112, In re 
Bush, L. E. 10 Eq. 442 ; 39 L. J. Ch. 759 ; and Backhouse v. 
SiddZe, 38 L. T. 487. 
Writs and And now the Land Charges Registration and Searches Act, 

SncUobe 1888 ( 51 & 52 Vici c - 51 )> provides, in section 5, for the esta- 
registered, blishment of an Office of Land Registry, where writs and 
orders affecting land must be registered and re-registered every 
and to be yoid five years ; and section 6 renders void as against purchasers 
chasers unless (including mortgagees, lessees, or other persons who, for value, 
registered. take any interest in land, or in a charge on land), any writ and 
order and delivery in execution or other proceeding taken in 
pursuance of such writ or order, unless so registered. This last 
section also contains a saving clause to protect the operation of 
a writ or order registered under 27 & 28 Yict. c. 112, until the 
expiry of the period for which it is registered. 

Shortly, judgments entered up prior to the 23rd of July, 1860, 
bind the land subject to the provisions for registration and for 
the protection of purchasers and mortgagees set out above; 
judgments entered up between the 23rd of July, 1860, and the 
29th of July, 1864, do not bind the land until a writ of execu- 
tion is issued and registered; judgments subsequent to the 29th 
of July, 1864, do not affect land until actually delivered in 
execution ; and the Act of 1888 (ante), requires the delivery in 
execution and other proceedings to be registered in the Office of 
Land Registry. 

By 27 & 28 Yict. c. 112, ss. 4 and 5, a creditor, to whom land 
is delivered in execution, is entitled to obtain, upon petition in a 
summary way, a summary order for sale of his debtor's interest 
in such land, subject to service of notice of such order for sale 
on any other creditors entitled to the benefit of a charge on such 
land through a judgment debt, &c. ; and parties claiming any 
interest in such land through the debtor by any means subse- 
quent to the delivery of such land in execution as aforesaid are 
bound by such order for sale. And see In re Pope, 17 Q. B. D. 
743 ; 55 L. J. Q. B. 522. 



INTRODUCTORY. 103 



Forms of Writ. 

1. Writ of Elegit. (Form No. 3, App. H. of E. S. 0. 1883, altered 
in accordance with the provisions of the Bankruptcy Act.) 

Victoria, by the grace of God, of the United Kingdom of Great 
Britain and Ireland Queen, Defender of the Faith. To the Sheriff 
of greeting : 

Whereas lately in our High Court of Justice in a certain action 
[or certain actions as the case may be~\ there depending wherein 
A. B. is plaintiff and C. D. defendant [or in a certain matter there 
depending, intituled "In the matter of E. F." as the case may be~\ 
by a judgment [or order as the case may be] of our said Court made 
in the said action [or matter as the case may be] and bearing date 
the day of it was adjudged [or ordered as the case 

may be] that C. D. should pay unto A. B. the sum of £ 
together with interest thereon after the rate of £ per centum 

per annum from the day of together also with certain 

costs as in the said judgment [or order as the case may be] men- 
tioned and which costs have been taxed and allowed by one 
of the taxing officers of our said Court at the sum of £ as 
appears by the certificate of the said taxing officer dated the 
day of _* And afterwards the said A. B. came into our said 
Court and according to the statute in such case made and pro- 
vided chose to be delivered to him all such lands, tenements, 
rectories, tithes, rents and hereditaments including lands and here- 
ditaments of copyhold or customary tenure in your bailiwick as 
the said C. D. or any one in trust for him was seised or possessed 
of on the day of in the year of Our Lord * or at *The day on 
any time afterwards, or over which the said C. D. on the said which the 
day of or at any time afterwards had any disposing power J u <l?ment or 

• • n oi*u or w ii s 

which ho might without the assent of any other person exercise for ma( j e _ 

his own benefit, to hold to him the said goods and chattels as his 

proper goods and chattels and to hold the said lands, tenements, 

rectories, tithes, rents and hereditaments respectively according to 

the nature and tenure thereof to him and to his assigns until the 

said two several sums of £ and £ together with interest 

upon the said sum of £ at the rate of £ per centum per 

annum from the said day of and on the said sum of 

£ (costs) at the rate of £4 per centum per annum from the 

day of shall have been levied. Therefore we com- 

mand you that without delay you cause to be delivered to the said 
A. B. by a reasonable price (d) and extent (e) all such lands and 
tenements, rectories, tithes, rents and hereditaments, including 
lands and hereditaments of copyhold or customary tenure in your 
bailiwick as the said C. D. or any person or persons in trust for 
him was or were seised or possessed of on the said day of 

* or at any time afterwards or over which the said C. D. *-^ s atove - 
on the said day of * or at any time afterwards had *Do. 

any disposing power which he might without the assent of any 

(d) "Price" refers to goods and chattels, which, it will bo observed, 
cannot now be seized under this writ. 

(e) " Extent " refers to lands. 



104 WRIT OF ELEGIT. 

other person exercise for his own benefit to hold the said lands, 
tenements, rectories, tithes, rents and hereditaments respectively, 
according to the nature and tenure thereof to him and to his assigns 
until the said two several sums of £ and £ together 

with interest as aforesaid shall have been levied. And in what 
manner you shall have executed this our writ make appear to us in 
our Court aforesaid immediately after the execution thereof under 
your seals and the seals of those by whose oath you shall make the 
said extent and appraisement. And have there then this writ. 
Witness, &c. 

2. Writ of Elegit. (Form No. 141, C. 0. E. 1886.) 

Victoria by the grace of God, &c. 
To the Sheriff of greeting. 

Whereas lately in the Queen's Bench Division of our High Court 
of Justice in a certain (/) wherein A. B. is (g) and 

C. 1). is defendant by a (h) of our said Court made in the 

said (/) and bearing date the day of 18 , it 

was(s') that the said should pay unto certain costs 

as in the said (h) mentioned and which costs have been taxed 

and allowed at the sum of £ as appears by the allocatur of 

one of the taxing masters dated the day of 18 . 

And afterwards the said came into our said Court and 

according to the statute in such case made and provided chose to 
be delivered to him all such lands tenements rectories tithes rents 
and hereditaments including lands and hereditaments of copyhold 
or customary tenure in your bailiwick as the said or any 

one in trust for him was seised or possessed of on the (A-) day 

of or at any time afterwards or over which the said 

on the said day of 18, or at any time afterwards had 

any disposing power which he might without the assent of any 
other person exercise for his own benefit to hold the said lands 
tenements rectories tithes rents and hereditaments respectively 
according to the nature and tenure thereof to him and to his assigns 
until the said sum of £ (I) together with interest upon the 

said sum at the rate of £4 per centum per annum from the (k) 
day of shall have been levied. Therefore we com- 

mand you that without delay you cause to be delivered to the said 
by a reasonable price and extent all such lands and tene- 
ments rectories tithes rents and hereditaments including lands 
and hereditaments of copyhold or customary tenure in your baili- 
wick as the said or any person or persons in trust for him, 
was or were seised or possessed of on the said (k) day of 
or at any time afterwards or over which the said on the 
said (/c) day of or at any time afterwards had any 

(f) Indictment, information (in the nature of a quo warranto), action 
of mandamus, or matter thero depending, intituled "In the matter of , 
&c," or as the case may be. 

(</) Prosecutor, relator, plaintiff or appellant, as the case may he. 

(h) " Judgment" or " order." 

(r) " Adjudged," " awarded" or " ordered." 

(/,) Date of judgment or order. 

(0 Costs. 



INTRODUCTORY. 105 

disposing power which ho might without the assent of any other 
person exercise for his own benefit to hold the said lands tene- 
ments rectories tithes rents and hereditaments respectively accord- 
ing to the nature and tenure thereof to him and to his assigns until 
the said two several sums and interest as aforesaid shall have been 
levied. And in what manner you shall have executed this our writ 
make known to us in our Court aforesaid immediately after the 
execution thereof under your seal and the seals of those by whose 
oath you shall mako the said extent and appraisement. And have 
there then this writ. 
"Witness &c. 

(7b be indorsed.*) 

Levy £ and £ for costs of execution besides costs of 

inquisition, if any ; and also interest on £ at £4 per centum 

per annum from the day of 18, until payment besides 

sheriff's poundage, officers' fees, costs of levying and all other legal 
incidental expenses. 

This writ was issued by M. N. of L. agent for Gr. H. of Y. 
solicitor for who resides at 

The within-named A. B. is a and resides at in 

your bailiwick. 



3. Elegit for the Residue after a Fieri Facias. 

Victoria {Sfc. as in Form No. 1, ante, p. 103]. To the Sheriff of 
greeting : "Whereas lately in our High Court [$*c. proceed as 
in a common elegit, as in No. 1 to the asterisk*^, and whereupon by 
our writ we lately commanded you, that of the goods and chattels \_§~c. 
recite the fieri faeias~\ and you on returned \_§c. recite the return 

as the case may be~\ ; and afterwards the said A. B. came into our 
said Court, and according to the statute in such case made and pro- 
vided, chose to be delivered to him {Sfc. as in No. 1 to the words 
" and his assigns " and then thus :] until the sum of £ , residue 

of the said £ and interest aforesaid, should be thereof fully 

levied : Therefore we command you \_8fc, proceed as in a common 
elegit to the words " to him and to his assigns 1 '], until the said 
£ residue of the said several sums of £ and £ , 

together with interest aforesaid, shall have been levied : And in 
what manner }-ou shall have executed this our writ \8fc. conclude as 
in No. 1]. 

4. Writ of Re-Elegit. 

Victoria {fyc. as in Form No. 1, ante, p. 103]. To the Sheriff of 
greeting. "Whereas lately in our High Court [$*c, recite the 
first wrif\. And you on {day of filing the return^ returned to us 
in the Division of our High Court of Justice, a certain inqui- 

sition, indented taken before you at on the day of 

last past by the oath, &c, whereby it is found [$-c. reciting 
the rrtum in the past tense~\ : And because we are now given to 
understand in our said Court, that the said C. 1). at the time of 
giving the judgment aforesaid, and afterwards had and still hath 
divers other lands, tenements, rectories, tithes, rents and heredita- 



106 



WRIT OF ELEGIT. 



nients in your bailiwick, besides those which are mentioned in the 
return above set forth, which said other lands, tenements, rectories, 
tithes, rents, and hereditaments, the said A. B. ought also to have 
in execution for the more speedy recovery of the said £ and 

£ , and interest aforesaid ; therefore the said A. B. hath 

humbly besought us that he may so have them, according to due 
course of law : Therefore we command you that you cause to be 
delivered to the said A. B. in the presence of the said C. D. to be 
warned on that occasion, if he will attend, all the other lands, tene- 
ments, rectories, tithes, rents and hereditaments of the said C. D. 
in your bailiwick, as well as those before extended in execution, for 
the payment of the said several sums of £ and £ and 

interest aforesaid, to hold to the said A. B. and his assigns, accord- 
ing to the nature and tenure thereof, according to the form of the 
statutes aforesaid, until the said several sums of £ and £ 

and interest aforesaid, shall be thereof fully levied : And in what 
manner you shall have executed this our writ \_8fc. conclude as in 
Form No. 1]. 



Sheriff to 
appoint time 
for execution 
and impanel 
jury for in- 
quisition. 



Evidence to 
be given at 
inquisition. 



Execution of Writ. 

Inquisition. 

Upon receipt of the writ the sheriff must appoint a time for 
its execution, and impanel a jury to inquire as to the lands and 
tenements, &c. of the debtor and their value. The execution 
creditor or his solicitor must attend at the appointed time and 
place with his witnesses, whose attendance may be compelled by 
subpcena, or other evidence to show what lands, &c. the defendant 
has, their nature and annual value. The jury must be charged 
and the oath administered to them (see Forms, post, p. 107) and 
the inquisition returned in accordance with the command of the 
writ. The jury is summoned in a similar manner to a jury on 
a writ of inquiry. The proceedings on an inquiry under the 
writ of elegit are somewhat like those on a writ of inquiry, but 
it seems that no notice of the inquisition need be given to the 
judgment creditor. Steed v. Lett/tier, 2 Ld. Raym. 1382. As 
to the holding of courts by the sheriff for the purpose of the 
execution of writs, see the Sheriffs Act, 1887, sect. 18, under 
the title " Writ of Inquiry," post p. 407. 

According to Chitty's Archbold, as the proceeding is an ex 
parte one, and the inquisition not conclusive on the debtor, it is 
in general sufficient to give slight evidence of the debtor's title. 
The inquisition may be prepared beforehand, according to the 
facts, with blanks to be filled in upon execution, and the 



EXECUTION OF WRIT. 



107 



sheriffs and jurors will seal it immediately after the taking of 
the inquisition. 

Upon an inquisition on a writ of elegit, proof of possession or 
receipt of the rent of the land by the party is prima facie evidence 
of title ; and where a jury, notwithstanding such evidence, found 
that the party had no lands, the Court set aside the finding, and 
directed the sheriff to take a new inquisition. Barnes v. Harding, 
1 C. B. N. S. 568. 

If the sheriff extend lands, &c. not extendible by law, and 
also extend lands which are extendible, the inquisition may be 
good as to the latter, though bad as to the former. Morris v. 
Jones, 3 D. & E. 603. 

As to setting aside or impugning an inquisition, see PuUen v. Setting aside 
Purbeel; Salk. 563 ; 12 Mod. 368 ; 8. C. Barnes v. Harding, hl( i uiiiition - 
supra; Doe d. Evans v. Ourn, 2 Cr. & J. 71, and Fenny v. 
Durrant, 1 B. & A. 40 and 41. 

Charge to the Jury. 

Your charge is to inquire what lands tenements rectories tithes 
rents and hereditaments including lands and hereditaments of 
copyhold or customary tenure C. D. or any one in 

trust for him was seised or possessed of on the day of 

a.d. 18 (m) or at any time afterwards, or over which the said 
C. D. on the day of a.d. 18 or at any 

time afterwards had any disposing power which he might without 
the assent of any other person exercise for his own benefit and also 
to inquire and say what is the yearly value thereof that the same 
may at a reasonable price and extent be made to be delivered to 
A. B. to hold the said lands tenements rectories 

tithes rents and hereditaments respectively, according to the nature 
and tenure thereof, to him and his assigns until the said sum of 
£ together with interest as aforesaid shall have been levied. 

Juror's Oath and Affirmation. 

You shall well and truly try what lands tenements rectories 
tithes rents and hereditaments including lands and hereditaments 
of copyhold or customary tenure C. D. or any one in 

trust for him, was seised or possessed of on the day of 

a.d. 18 (»t) or at any time afterwards or over which the said 
C. D. on the day of a.d. 18 or at any 

time afterwards had any disposing power which he might without 
the assent of any other person exercise for his own benefit in my 
bailiwick, and the yearly value thereof and a true verdict give 
according to the evidence. 

So help }-ou God. 



(/») The day of entry of judgment, or dato of order, decreo, &c. 



:o8 



WRIT OF ELEGIT. 



Sheriff 
empowered 
to deliver 
execution of 
lands, &c. to 
judgment 
creditor. 



Proviso as 
to copyhold 
lands. 



What may be extended. 

By 1 & 2 Vict. c. 110, s. 11, " It shall be lawful for the sheriff 
or other officer to whom any writ of elegit, or any precept in pur- 
suance thereof, shall be directed, at the suit of any person, upon 
any judgment which at the time appointed for the commence- 
ment of this Act shall have been recovered, or shall be thereafter 
recovered in auy action in any of her Majesty's Superior Courts 
at Westminster, to make and deliver execution unto the party 
in that behalf suing of all such lands, tenements, rectories, tithes, 
rents, and hereditaments, including lands and hereditaments of 
copyhold or customary tenure, as the person against whom exe- 
cution is so sued, or any person in trust for him, shall have been 
seised or possessed of at the time of entering up the said judg- 
ment, or at any time afterwards, or over which such person shall, 
at the time of entering up such judgment, or at any time after- 
wards, have any disposing power which he might, without the 
assent of any other person, exercise for his own benefit, in like 
manner as the sheriff or other officer may now make and deliver 
execution of one moiety of the lands and tenements of any person 
against whom a writ of elegit is sued out ; which lands, tene- 
ments, rectories, tithes, rents, and hereditaments, by force and 
virtue of such execution, shall accordingly be held and enjoyed 
by the party to whom such execution shall be so made and 
delivered, subject to such account in the Court out of which 
such execution shall have been sued out as a tenant by elegit is 
now subject to in a Court of Equity : Provided always, that such 
party suing out execution, and to whom any copyhold or custom- 
ary lands shall be so delivered in execution, shall be liable and 
is hereby required to make, perform, and render to the lord of 
the manor or other person entitled all such and the like paj'nients 
and services as the person against whom such execution shall be 
issued would have been bound to make, perform, and render in 
case such execution had not issued ; and that the party so suing 
out such execution, and to whom any such copyhold or customary 
lands shall have been so delivered in execution, shall be entitled 
to hold the same until the amount of such payments, and the 
value of such services, as well as the amount of the judgment, 
shall have been levied." 

Chitty's Archbold, 14th edit. p. 876, states that a moiety 
only should be extended where a purchaser or mortgagee without 
notice is entitled under 2 & 3 Vict. c. 11, s. 5, but it is conceived 



EXECUTION OF WRIT. 109 

that this case can scarcely ever arise now, because, as already 
shown, no judgment entered up since the 26th of July, 1864, 
can affect land until actual delivery in execution. 

Equitable estates were not at common law liable to be taken Lands, &c. to 
in execution upon a judgment against the cestui que trust (Co. th. judg- 
Lit. 374 b), but 2 ( J Car. 2, c. 3, s. 10, provides that the sheriff me ? ts > &c - of 

'' / / x , cestui que 

shall " do, make, and deliver execution unto the party in that trust. 
behalf suing, of all such lands, tenements, rectories, tithes, rents, 
and hereditaments, as any other person or persons be in any 
manner of wise seised and possessed, in trust for him against 
whom execution is so sued, like as the sheriff or other officer 
might or ought to have done, if the said party against whom 
execution hereafter shall be so sued had been seised of such 
lands, &c, of such estate as they be seised of in trust for him at 
the time of the said execution sued; which lands, &c., by force 
and virtue of such execution, shall accordingly be held and 
enjoyed freed and discharged from all incumbrances of such 
person or persons as shall be so seised or possessed in trust for 
the person against whom such execution shall be sued." A 
judgment affects the legal estate of a party from the time it is 
signed, but, on account of the wording of the above section, it 
affects only such trust property as the judgment debtor is 
possessed of at the time execution is sued out, so that such trust 
property cannot be taken under an elegit sued out after a con- 
veyance of it, grounded on a judgment signed before such 
conveyance. Harris v. Pugh, 4 Bing. 335 ; 12 Moore, 577. It 
should be noted that the wording of 1 & 2 Yiet. c. 110, s. 11, 
which renders trust property in lands of copyhold or customary 
tenure liable to be taken in execution, is different. And see 
27 & 28 Vict. c. 112. It has been held that the above section 
applies only to cases where the trustees hold in trust for the 
defendant alone, and not where the trust is for the defen- 
dant and another jointly. Doe d. Hull v. Greenhill, 4 B. & 
Aid. 684 ; Harris v. Pugh, 4 Bing. 335 ; Gore v. Bowser, 24 
L. J. Ch. 316, 440. An equity of redemption cannot be taken 
under this section, for in the words of Jessel, M. R., in The 
Anglo-Italian Bank v. Davies, 9 Ch. D. at p. 284, "The Statute 
of Westminster was extended by the Statute of Frauds only to 
the case of pure equities, that is, where there was a bare trust, 
and not an estate like an equity of redemption." See Lyster v. 
Dollaiid, 1 Ves. jun. 431 ; 3 Bro. C. C. 478 ; Hatton v. Haywood, 
L. R. 9 Ch. 229 ; Salt v. Coovcr, 16 Ch. D. 544. It has also 



110 



WRIT OF ELEGIT. 



Estates in 
reversion on 
leases for lives 
or years may 
be extended as 
also lands 
held in ancient 
demesne. 



Bishop's 
lands. 



Leaseholds 
and terms of 
years. 



Mansion 
house. 



Estates 
granted for 
maintenance 
of dignities. 



been held that an equitable interest in a term is not within the 
statute, which extends only to trusts in fee. King v. Battett, 2 
Vern. 218; Scott v. Seholey, 8 East, 467; and see Jeffreson v. 
Morton, 2 Saund. 11. But an outstanding term, vested in a 
trustee upon trust to attend the inheritance, may be taken in an 
execution against the owner of the inheritance. Doe d. Phillips 
v. Evans, 1 C. & M. 450. 

Estates in reversion on leases for lives or years (Poole [Mayor, 
8fc. of) v. Whitt, 15 M. & W. 571 ; 16 L. J. Ex. 229) may be 
extended, so also may " lands held in ancient demesne delivered 
over on an elegit. Although the word ' lands ' is used in the 
statute (1 & 2 Yict. c. 110), yet whatever comes under the legal 
definition of a tenement was always extendible on an elegit, as 
a reversion or rent charge. . . . Lands, which the defendant 
hath by extent upon a statute, are liable to be taken on an 
elegit. ... So may the lands which a husband has in right of 
his wife." 2nd ed. Wats, on Shf. Law, pp. 308, 309. 

The lands of a bishop may be extended under this writ. 
Dalt. 136. The subject-matter must, however, be a legal 
estate, and not a mere equitable interest, such as an equity of 
redemption. Hatton v. Haywood, ante ; Davis v. Marlborough, 2 
Swans. 122. 

Leaseholds or terms of years may still be extended under an 
elegit, and do not fall within the 146th section of the Bank- 
ruptcy Act, 1883, goods in that Act being defined (sect. 168) 
as chattels personal. And see Richardson v. Webb, 76 L. T. 
O. S. 397. It was there held that, as sect. 168 defines goods to 
include " all personal chattels " and leaseholds are chattels real, 
therefore they do not come within sect. 146, which provides that 
" the sheriff shall not, under a writ of elegit deliver the goods of 
a debtor, nor shall a writ of elegit extend to goods." A term of 
years may either be extended at an extended annual value as 
part of the debtor's lands, or it may be delivered to the creditor, 
the jury having first appraised it at the gross sum, and the 
creditor becomes the absolute owner of the term at the appraised 
value. 

A mansion-house, excepted from the leasing power of a tenant 
for life, is subject to execution at the suit of his creditors during 
his life. Davis v. Marlborough, 2 Swans. 122. 

Estates granted by the Crown for the maintenance of dignities, 
with reversion in the Crown, have the usual incidence, and may 
be taken in execution. lb. 



EXECUTION OF WRIT. Ill 

Land held and used by a local board of health for public Land held by 
purposes is also liable to be taken under a writ of elegit under f or pu biic 
a judgment against such board. Worral Waterworks Co. v. purposes. 
Lloyd, L. E. 1 0. P. 719 ; Coe v. Wise, L. R. 1 Q. B. 711 ; and 
see Earl Jersey v. TTxbridge Rural Sanitary Authority, [1891] 
3 Ch. 183 ; GO L. J. Ch. 833 ; 64 L. T. 858. 

" The release from a judgment of part of any hereditaments Release of 
charged therewith shall not affect the validity of the judgment charged not 
as to the hereditaments remaining unreleased or as to any other to affect 
property not specifically released without prejudice nevertheless 
to the rights of all persons interested in the hereditaments or 
property remaining unreleased, and not concurring in or con- 
forming to the release." 22 & 23 Vict. c. 35, s. 11. 



What may not be extended. 

"A rent seek, or an office, as that of filazer, are not ex- Rent-seek, 

tendible." Walsall v. Heath, Cro. Eliz. 656; Heydon's Case, 2 &c< 

Eep. 18 ; Anon., Dyer, 7. " An office is not extendible because 

it cannot be granted over Lands, of which the de- Lands, dis- 

fendant is disseised in the hands of the disseisor, are not liable bands' of* 

to be taken on an elegit. Neither is an advowson in gross, disseisor. 

because a moietv of it could not be set out, nor can it be valued Advowson ^ 
J ' gross. 

at any certain rent towards payment of the debts (see Robinson 

v. Tongue, 3 P. Wins. 401) ; nor the glebe of a parsonage or Glebe. 

vicarage ; nor can a churchyard be extended under an elegit, Churchyard. 

although it is said that the lands of a bishop may be extended. 

. . . . The execution creditor is not entitled to rent which 

becomes due after the delivery to the sheriff of an elegit but 

before inquisition taken." 2nd ed. Wats. pp. 308, 309, and 

310, and cited authorities. As already stated, an equity of 

redemption cannot be taken, ante, p. 109. 

An estate in remainder, belonging to an infant, cannot be Infant's 
extended under an elegit. South, In re, 9 L. E. Ch. 369 ; 43 Jj-Jte! re " 
L. J. Ch. 441 ; 30 L. T. 347 ; reversing the decision of 
Malins, Y.-C, 22 TV. E. 388. Nor can any other remainder, Remainders. 
as distinguished from a reversion. " The sheriff is only em- 
powered to seize those lands of which the debtor is ' seised or 
possessed.' A man cannot be seised or possessed of a remainder." 
Per James, L. J., at p. 373 of the report in L. E. 9 Ch. 

"Where any legal or equitable estate or interest or any v^din 
disposing power in or over any lands, tenements or heredita- purchaser or 
ments shall, under any conveyance or other instrument executed not to be 



112 



WRIT OF ELEGIT. 



taken in 
execution. 



after the passing of this Act, "become vested in any person as a 
purchaser or mortgagee for valuable consideration, such lands, 
tenements or hereditaments shall not be taken in execution 
under any writ of elegit, or other writ of execution, to be sued 
upon any judgment, or any decree, order, or rule against any 
mortgagee or mortgagees thereof, who shall have been paid off 
prior to or at the time of the execution of such conveyance, nor 
shall any such judgment, decree, order, or rule, or the money 
thereby secured, be a charge upon such lands, tenements, or 
hereditaments so vested in purchasers or mortgagees." 18 Yict. 
e. 15, s. 11 ; and see Greaves v. Wilson, 4 Jur. N. S. 802 ; 28 
Li. J. Ch. 103. 

Where lands are extended under an elegit, there is no interest 
in them left in the debtor which can be extended under a subse- 
quent writ. Carter v. Hughes, 2 H. & N. 714 ; 27 L. J. C. P. 
225. 

The law is well and clearly summed up in Prid. Prec. 15th 
ed. at pp. 143, 144, as follows : — 

" Every legal estate or interest in land in possession or rever- 
sion, if vested in the debtor beneficially, or if he has a power of 
disposition over it exerciseable for his own benefit, is extendible 
at law. So also is land vested in a trustee on a bare trust for 
the debtor, where the debtor has the whole beneficial interest. 
So also are impropriate rectories and tithes, but not a rectory or 
tithe constituting an ecclesiastical benefice, nor an advowson in 
gross, nor an estate in remainder." 



Adverse Claims. 
Judgment The existence of an equitable mortgage upon the land is no 

le^afestate 68 ^ ar *° ^ e execu ^ on °f the elegit, but where the legal estate of 
subject to any the debtor is subject to any equity, the judgment creditor Avill 
eqm } ' take subject to that equity ; in other words, will take whatever 

beneficial interest the debtor has and no more. 14th ed. Chit. 
Arch. 877 ; and 15th ed. Prid. Prec, pp. 143 and 144. But 
notwithstanding 1 & 2 Vict. c. 110, s. 11, which gives to a 
judgment the effect of an equitable charge upon the land of the 
debtor, an equitable mortgagee retains his right in equity to 
enforce his security against the title of a creditor under a sub- 
sequent judgment, although the latter may have acquired the 
legal seisin and possession of the land under an elegit without 
notice of the mortgage. Whitworth v. Gauguin, 1 Ph. 728 ; 10 
Jur. 531 ; 15 L. J. Ch. 433. 



EXECUTION OF WRIT. 1 1 3 

A judgment creditor of a railway company, who had obtained 
an elegit, was restrained from taking possession of the lands and 
chattels belonging to the company as against prior mortgagees, 
to whom were assigned the undertaking, calls on shareholder , 
and tolls. Legg v. Mathieson, 2 Giff. 71 ; G Jur. N. S. 1010. 

A judgment creditor is not a purchaser within the meaning Judgment 
of the statute 27 Eliz. c. 4, and has, therefore, no title on that no title 
ground to set aside a prior voluntary settlement. Moreover, the against per- 
13th section of the Act 1 & 2 Yict. c. 110, does not confer on under prior 
the judgment creditor any right against a person claiming under t^^. 
a voluntary settlement previously made by the judgment debtor. 
Beauan v. The Earl of Oxford, 6 De G. M. & G. 507 ; 25 L. J. 
Ch. 299. 



Several Writs and Priorities. 

Priorities of judgment creditors against lands are determined Priority 
by the date at which the writs issued upon their judgments are by c | ateg of 
placed in the hands of the sheriff. Therefore a judgment delivery of 
creditor, subsequent in point of date, but who was the first to sheriff, 
place his writ in the hands of the sheriff and get the lands of 
the debtor extended under such writ, was, in the undermentioned 
case, held entitled in priority to a prior judgment creditor whose 
writ was subsequently placed in the sheriff's hands before the 
lands were extended. Guest v. Cowbridge Rail. Co., L. P. 6 Eq. 
619 ; and see judgment of Sir G. M. Giffard, V.-C., in that case ; 
and Wltiticorth v. Gaugain, 3 Hare, 416 ; 1 Ph. 728. 

Where an execution by elegit is perfected and completed by Crowa's writ, 
delivery of the lands before the Crown's writ issued, the subject's 
title is prior to the Crown's and is executed. Per Lord Chief 
Baron Steel in Attorney-General v. Andrew, Hard. 23; and per 
Patteson, J., in Giles v. Grover, 1 CI. & F. 86, 87. 

The judgment creditor may have more than one writ of elegit 
directed into different counties (see headings " Concurrent and 
Successive Writs " in the chapter on Fi. Fa., ante, pp. 65, 66) ; 
but it appears that where land is extended under a writ of elegit, 
no writ other than an elegit can be sued out against the debtor 
or his property. Bro. Abr. Elegit, 15 ; Chitty's Arch., 14th ed., 
p. 885. 

Further, as to priorities, see chapters on " Landlord's Claim 
for Pent," and "Bankruptcy, &o.," post, pp. 280, 349. 



M 



114 



WRIT OF ELEGIT. 

Finding of the Inquisition. 
The inquisition ought to find the lands with convenient cer- 
tainty. It must show the place and county where they lie and 
where the inquisition is taken, what estate the debtor has, and 
whether in severalty, joint tenancy, or tenancy in common. 
.... But since the statute 1 & 2 Yict. c. 110, it is not neces- 
sary to set out the premises by metes and bounds ; it is sufficient 
to describe them by name, or in some other manner with such a 
degree of accuracy that they may be readily identified. 2nd ed. 
Watson on Sheriffs, p. 312 ; Chitty's Arch., 14th ed. 884 ; Doe 
d. Roberts v. Parry, 13 M. & W. 356 ; Sherwood v. Clarke, 15 
M. & W. 764; Poole {Mayor of) v. WlMt, 15 M. & W. 571. 



Delivery of the Lands. 

After the inquisition the sheriff must deliver to the execution 
creditor sufficient of the execution debtor's lands and tenements 
(i.e., the legal not the actual possession of such lands, &c, or, 
in other words, a right of entry only) at the jury's valuation 
thereof, for satisfaction of the levy. 



Return. 
A return The sheriff must always make a return to a writ of elegit if he 

must be made. ^ done anything under it. If he did not do so the tenant by 

elegit would have no title. But see In re Hobson, 33 Ch. D. at 

p. 496. 
Return of "Where the sheriff is unable to execute the writ in consequence 

of the debtor's interest in the land being merely equitable, the 

proper form of return is " nihil." Hatton v. Haywood, 43 L. J. 

Ch. 372 ; 9L.E. Ch. 229. If it be returned to an elegit that 

there are no lands, the sheriff need not return an inquisition. 

Stonehouse v. Eicon, 2 Stra. 874. In such case the proper 

return is nihil. 
Return of " Mandavi ballivo is a good return to a writ of elegit, and it is 

"mandwi a g 00( j re turn that the sheriff has extended the lands of the 

defendant, but could not deliver them to the plaintiff, for 

another had them in extent before." 2nd ed. Watson, p. 315. 
The Court will not alter the return of an elegit to a later day, 

at all events, not at the instance of the sheriff without the 

consent of the plaintiff. Hildyard v. Baker, 1 C. & M. 611. 
The inquisition is remitted with the return, and the elegit and 

inquisition must be filed in the Court out of which the elegit 

issued. 



EXFX'UTION OF WKIT. 

Forms of Eeturx. 

1. Return to Elegit that Defendant has no Lands, Sfc. 

The within-named defendant has no lands, tenements, rectories, 
tithes, rents or hereditaments in my bailiwick whereof I can cause 
to be levied the £ [or "moneys"] and interest within men- 

tioned or any part thereof as I am within commanded. 

The answer of S. S., sheriff. 

2. Return of Inquisition where Lands arc extended. 

The execution of this writ appears in the inquisition hereunto 
annexed. 

The answer of S. S., sheriff. 

to wit. An inquisition indented, taken at in the 

county of , the day of a.d. before me 

S. S. sheriff of the county aforesaid, by virtue of her Majesty's writ 
to me directed in this behalf and to this inquisition annexed, by 
the oath of [name the jurors upon the inquest] twelve honest and 
lawful men of the county aforesaid, who being [duly impanelled, 
drawn by ballot] sworn and charged, say, upon their oath that 
C. D. named in the said writ to this inquisition hereunto annexed, 
on the day of taking this inquisition [or " one in trust for the 

said C. D."] on the day of in the year of our Lord 

18 was [or " is "] seised in his demesne as of fee [or "of freehold 
for and during the term of his natural life "] of and in one 
messuage and one close of pasture land thereto adjoining, with the 
appurtenances, containing by estimation acres, more or less, 

situate, l}*ing and being in the parish of in the county 

aforesaid, and now or late in the tenure or occupation of , 

and being of the clear yearly value of £ in all issues beyond 

reprizes, and also of and in one other close [fyc. as above]. If the 
defendant teas a joint tenant, tenant in common, or coparcener say: 
"that the said C. D. [Sec] on [Sfc] was seised in his demesne as of 
fee [or ' of freehold for and during the term of his natural bfe '] of 
and in one undivided moiety [or ' part'], the whole into two 

equal moieties [or ' parts '] to be divided of and in one 

messuage [$*c. as above].'''' if the premises arc in mortgage for a term 
of years, add: "which said messuage, &c. [or 'undivided moiety,' 
&c.j are subject to a mortgage made thereof by the said C. D. to 
one E. F. of , by indenture bearing date [§'c] for the term 

of years, at the yearly rent of one peppercorn subject to 

redemption or payment of £ and interest at five pounds per 

centum per annum at a day since past." If the lands, fyc, arc copy- 
hold, say: "that the said C. D. [§"c] on [$*c] was seised in his 
demesne as of fee at the will of the lord, according to the custom of 
the manor of in the county of of and in one close 

\jSfc as above], the same being within and parcel of the said manor 
and a customary tenement of 1 1 l < • same manor, demised and demis- 
able by copy of the court-roll of the said manor by tin- lord of the 
said manor or by his steward of the courts of the said manor for 
the time being to any person or persons willing to take the same 
in fee simple or otherwise at the will of the lord, according to the 
custom of the said manor." If there be a r<ct>>ry, say: "that the 
said C. D. [$c.] on [$*c] was seised in his demesne as of freehold 

i2 



115 



116 WRIT OF ELEGIT. 

for and during 1 the term of his natural life of and in the rectory of 
the parish church of in the county aforesaid." Or if there 

be tithes, "that the said C. D. on [$"c] was seised as of fee and 
right of and in all and singular the tithes of corn, grain, hay, wood, 
grass, wool, lambs and calves [as the case may be] arising, growing, 
renewing, increasing, and happening within the parish of in 

the county aforesaid and within the bounds, limits, and titheable 
places of the said parish." If there be a rentcharge, say : "that 
the said C. D. [Sfc] on [Sfc] was seised as of fee and right [or ' of 
freehold for and during the term of his natural life '] of and in a 
certain annuity, yearly rent or sum of £ of lawful money of 

Great Britain, payable by four equal quarterly payments [or other- 
wise as the case may bc~\ on [Sfc, specifying the days of payment] and 
charged and chargeable upon and issuing and payable out of certain 
freehold lands and premises, with the appurtenances, situate and 
being in the parish of in the county aforesaid." If the 

defendant had a disposing power over lauds, §*c., say : "that the said 
C. D. on [<^c] had a disposing power over one messuage, &c. [as 
before, stating the nature of the power and by what means and for 
xohat purpose it ivas created], which power he, the said C. D. might 
without the assent of any other person have exercised for his own 
benefit, which said messuage, &c. [or 'moiety,' S?c, according to the 
fact] respectively I the said sheriff on the aforesaid day of taking 
this inquisition have caused to be delivered to the said A. B. by a 
reasonable price and extent, subject as aforesaid [if in mortgage] to 
hold according to the nature and tenure thereof to him and his 
assigns according to the form of the statutes in such case made and 
provided, until the said several sums of £ and £ in the 

said writ mentioned together with interest upon the same as therein 
also mentioned shall have been levied." And lastly the jurors 
aforesaid upon their oath aforesaid say, that the said C. D. in the 
said writ named, on the aforesaid day of taking this inquisition, had 
not nor any person in trust for him on the said day of 

in the year of our Lord, 18 or at any time afterwards any other or 
more lands or tenements, nor any rectory, tithes, rents, or here- 
ditaments, in the county aforesaid, whereof he, the said C. D. [$*c] 
was seised or possessed at the time of entering up the said judg- 
ment or at any time afterwards nor had he the said C. D. at the 
time of entering up such judgment or at any time afterwards any 
other or more lands [Sfc] in the county aforesaid over which he 
had any disposing power which he might without the assent of any 
other person have exercised for his own benefit to the knowledge 
of the said jurors. In witness whereof as well I the said sheriff 
as the jurors aforesaid have set our seals to this inquisition on the 
day, year, and at the place aforesaid. 

S. S., esquire, sheriff. 
[It should be sealed by the sheriff and jurors]. 

J. J. ) 

K. K. > (Seals of the jurors). 

J. M., fc. ) 



Fees. 
See under "Sheriffs' Fees, &c," post, p. 505. 



117 



Chapter VI. 

WRIT OF VENDITIONI EXPONAS. 

PAGE 

Introductory - - - - - - - - -117 

Form of Writ 118 

Execution of Writ - 118 

Warrant 118 

llct urn - - 119 

Sheriff's Liability 120 

Fees - - 120 



Introductory. 

This is a judicial writ addressed to the sheriff commanding 
him to expose to sale goods which he has already taken into his 
hands to satisfy a judgment creditor. This writ may also be 
issued for the sale of unclaimed property, taken under pro- 
ceedings in outlawry. 

" The legal and proper mode of compelling a sale by the 
sheriff, when he makes delay or refuses, is by writ of venditioni 
exponas, upon which he must return the money into Court"; per 
Lord Mansfield in Cameron v. Reynolds, Cowp. 406 ; and to 
quote Lord Ellenborough's definition of this writ in Keightley v. 
Birch, 3 Camp. 521, " sell for the best price you can obtain." 

This writ is not a process distinct from the fi.fa., but a part 
of it ; it is a writ directing the sheriff to execute the fi. fa. in a 
particular manner. Hughes v. Rees, 4 M. & "W. 468. By R. 
of S. C. 1883, Ord. XLIII. r. 2, " Where it appears upon 
the return of any writ of fi. fa. that the sheriff, or other officer, 
has by virtue of such writ seized, but not sold, any goods of the 
person directed to pay a sum of money, or costs, the person to 
whom such sum of money, or costs, is payable shall, immediately 
after such writ with such return shall have been filed as of 
record, be at liberty to sue out a writ of venditioni exponas." 
And by Rule 5 of same Order, " "Writs of venditioni cxponasj 



118 WRIT OF VENDITIONI EXPONAS. 

distringas nuper rice comitem, fieri facias de bonis ecclesiasfieis, 
sequestrari facias de bonis ecclesiasticis, and all other writs in aid 
of a writ of fi. fa. or of elegit, may be issued and executed in the 
same cases and in the same manner as heretofore." 



Form of Writ. 

(E. of S. C. 1883, App. H., No. 4.) 

18 — \_Here put letter and number~\. 
In the High Court of Justice. 
Division. 

Between A. B. - - - - - - Plaintiff 

and 
CD. Defendant. 

Victoria, by the Grace of God, of the United Kingdom of Great 
Britain and Ireland Queen, Defender of the Faith. 

To the Sheriff of greeting : 

Whereas by our writ we lately commanded you that of the goods 
and chattels of C. D. [here recite the fieri facias to the end~\ And on 
the day of you returned to us in the Division of 

Our High Court of Justice aforesaid, that by virtue of the said writ 
to you directed, you had taken goods and chattels of the said C. D. 
to the value of the money and interest aforesaid, which said goods 
and chattels remained in your hands unsold for want of buyers. 
Therefore we being desirous that the said A. B. should be satisfied 
his money and interest aforesaid, command you that you expose to 
sale and sell or cause to be sold, the goods and chattels of the said 
C. D. by you in form aforesaid taken, and every part thereof for the 
best price that can be gotten for the same, and have the money 
arising from such sale before us in our said Court of Justice im- 
mediately after the execution hereof, to be paid to the said A. B. 
and have there then this writ. 

Witness, &c. 



Execution of Writ. 

See foregoing directions under " Introductory." 

Form of Warrant. 

County of B. ) osquire, sheriff of the county aforesaid to 

to wit. ) and my bailiffs greeting : 

By virtue of Her Majesty's writ of venditioni exponas to me directed 
I command you that you immediately expose to sale and sell the 
goods and chattels late tho property of which you have in 

your custody by virtue of a warrant to you directed on a writ of 



EXECUTION OF WRIT. 119 

issued of the Queen's Bench Division of Her Majesty's High 
Court of Justice at Westminster, at the suit of for 

provided nevertheless that you do not sell the said goods and 
chattels for a less sum than at which they were appraized so 

that I may retain tho moneys arising from the sale thereof and have 
the same before the said High Court on in pursuance of the 

said writ. Hereof fail not. Given under the seal of my office this 

day of in the year of our Lord one thousand eight 

hundred and 

In selling under this writ the sheriff is not bound by the 
precise value stated in his return to the fi. fa. {Wintle v. 
Chetwynd, 7 D. P. C. 554), but if the goods are lost or rescued 
from him, he is bound by the value returned. Clerk v. Withers, 
2 Ld. Eaym. 1075. 

" The sheriff ought to stop the sale of the goods as soon as a 
sufficient sum has been raised to cover the amount of the levy, 
expenses, &c., and after selling enough in fact for that purpose, 
he is not justified in selling more on the supposition that by 
accident for which he is not answerable the amount levied may 
become insufficient." 2nd ed. Wat. Sh. 271. 



Return. 

The form of return to this writ is that of the amount realized. 
In the case of a sheriff effecting a sale under this writ, he must 
make a return of the whole amount so obtained without deducting 
anything for extra expenses or poundage, and the Court, when 
ordering his payment out of such sale proceeds, deducts poundage, 
and on the sheriff's motion in that behalf, makes him any extra 
allowance to which he may be entitled. Rex v. Jones, 1 Price, 
205. 

A sheriff, having returned a levy under a/?. /r/., cannot return 
to the venditioni that he has sold the goods, but detains the money 
for another party under a prior writ of execution. Howe v. 
Tapp, 9 Price, 317. 

And see as to return, Hughes v. Bees, supra ; lleg. v. Sheriff of 
Berks, 8 D. P. C. 97; Leader v. Banvers, 1 B. & P. 359; Levy 
v. Hale, 6 Jur. N. S. 702 ; 29 L. J. C. P. 127 ; and Rex v. 
Monmouth (Sheriff), 1 Marsh. 344. 



120 



WRIT OF VENDITIONI EXPONAS. 



Goods to be 
sold within 
reasonable 
time. 

Attachment 

against 

sheriff. 



Sheriff's Liability. 

A sheriff must sell the goods within a reasonable time and 
before the return of the venditioni exponas, or he will be liable to 
an action. Jacobs v. Humphrey, 4 Tyr. 272 ; 2 C. & M. 413. 

The Court refused to grant an attachment against a sheriff 
for not selling goods under a venditioni exponas, where he had 
returned that he could not sell for want of buyers [Anon., 2 
Chit. 390) ; and when he had returned, that part of the goods 
levied remained in his hands for want of purchasers. Leader v. 
Danvers, ante, p. 119. Where several writs of fi. fa. at the suit 
of different persons against the same defendant were successively 
delivered to the sheriff, to the last of which he returned that he 
had seized goods which remained in his hands for want of buyers, 
but stated nothing about the previous writs, the Court afterwards 
relieved the sheriff from an attachment for not returning the 
venditioni exponas, on his paying over the balance remaining in 
his hands, after satisfying the former writs. Beej. v. Hertford- 
shire (Sheriff), 9 D. P. C. 916. 



Fees. 

See under " Sheriffs' Fees, &c.," post, p. 505 ; and see also Rex 
v. Jones, ante, p. 119. 



121 



Chapter VII. 

WRIT OF DISTRINGAS NUPER VICE COMITEM. 

PAGE 

Introductory --------- 121 

Form of Writ 121 



Introductory. 

The writ of distringas nv/per vice coin item is a process against 
an ex-sheriff to compel him to sell goods which he has returned 
as remaining in his hands for want of buyers and for bringing 
the proceeds into Court. 

Referring to execution of distringas against ex-sheriff, " The Execution, 
seizure of goods under this writ cannot be followed up by their 
sale. The remedy being one of distress, the goods seized are 
held only at common law as a pledge. In case the issues taken 
under this writ are of trifling or insufficient amount, a summons 
can be taken out to increase them, which is done by an order on 
an acting sheriff." Edwards on Execution, p. 14-3. 



Form of Writ. 

Form of Distringas against ex-Sheriff (No. 14. App. H. of 
E. of S. C. 1883). 

18 — \_IIere put letter and number~\. 
In the High Court of Justice. 
Division. 

Between A. B. Plaintiff 

and 
CD.- Defendant. 

Victoria, by the grace of God, &c. of Great Britain and Ireland 
Queen, Defender of the Faith : — 

To the Sheriff of , greeting : 

We command you that you distrain late sheriff of your 

county aforesaid, by all his lands and chattels in your bailiwick, so 



122 WEIT OF DISTRINGAS NUPER VICE COMITEM. 

that neither he nor anyone by him do lay hands on the same until 
you shall have another command from us in that behalf, and that 
you answer to us for the issues of the same, so that the said 
expose for sale and sell or cause to be sold for the best price that 
can be gotten for the same, those goods and chattels which were of 

in your bailiwick, to the value of £ («) ' the sum 

of £ which lately before us in our High Court of Justice in a 

certain action wherein plaintiff and defendant by 

a (b) of our said Court bearing date the day of 

was (c) to be paid by the said to the said and of 

the sum of £ the amount at which the costs in the said (b) 

mentioned have been taxed and allowed, and of interest on the said 
sum of £ at the rate of £4 per centum per annum from the 

day of and on the said sum of £ at the same rate 

from the day of which goods and chattels he lately took 

by virtue of our writ, and which remain in his hands for want of 
buyers, as the said late sheriff hath lately returned to us in our said 
Court. And have the money arising from such sale before us in our 
said Court immediately after the execution hereof to be paid to the 
said 

And have there then this writ. 

"Witness, &c. 

This writ was issued by, &c. 

The defendant is a and resides at in your bailiwick. 



(a) "The amount of" or "part of." 
(Z>) "Judgment" or "order." 
(c) "Adjudged" or "ordered." 



123 



Chapter VIII. 

WRITS OF SEQUESTRATION AND FIERI FACIAS DE BONIS 
ECCLESIASTICIS. 

Referring to the writ of sequestration, this writ is a prero- 
gative process (formerly confined to the Court of Chancery, and 
the Courts of Probate and Divorce) addressed to certain com- 
missioners empowering them to enter upon real estates and 
sequester the rents, and upon the goods, chattels and personal 
estate of a person in contempt for disobedience of a decree or 
order of Court, and to keep the same until the defendant clear 
his contempt. It has no return, and is granted upon a return 
of non est inventus by the serjeant-at-arms, or by a sheriff on an 
attachment. 

By the Rules of the Supreme Court, 1883, Ord. XLII. r. 6, Howjudg- 
" A judgment for the recovery of any property other than land or ^perty 
money may be enforced (a) by writ for delivery of the property; other than 
(b) by writ of attachment ; (c) by writ of sequestration." enforced. 

By Ord. XLIII. r. 3, "Where it appears, upon the return of Writs of 
any writ of fieri facias or any writ of elegit, that the person, ^ - { a : debo . ms 
against whom such writ was so issued, is a beneficed clerk, and and segues - 
has no goods or chattels, nor any lay fee in the bailiwick of the 
sheriff to whom such writ was directed, the person to whom the 
sum of money or costs mentioned in such writ is or are payable 
shall, immediately after such writ with such return shall have 
been filed as of record, be at liberty to sue out one or more writs 
of fieri facias de bonis ecclesiasticis, or one or more writs of seques- 
tration." 

By r. 4 of the same Order, " Such writs as in the last pre- Procedure 
ceding rule mentioned, when sealed, shall be delivered to the 
bishop to be executed by him, and such writs, when returned by 
the bishop, shall be delivered to the parties or solicitors by whom 
respectively they were sued out, and shall thereupon be filed as 
of record in the Central Office ; and for the execution of such 



thereon. 



124 WEITS OF SEQUESTRATION, ETC. 

writs the bishop or his officers shall not take or be allowed any 
fees other than such as are or shall be from time to time allowed 
by lawful authority." 
Issue and And by r. 5 of the same Order, " "Writs of venditioni exponas, 

execution of 7 . . . ., />•/•• j 7. 7 • . • • 

■writs in aid. distringas nuper vice conntem , fieri jacias de boms ecctesiasticts, seques- 
trari facias de bonis ecclesiasticis, and all other writs in aid of a 
writ of fieri facias or of elegit, may be issued and executed in the 
same cases and in the same manner as heretofore." 

And see r. 6 of Ord. XLIL, and forms Nos. 5, 7, and 13 in 
App. H. of R. S. C, 1883, as also sect. 52 of the Bankruptcy 
Act, 1883. 



125 



Chapter IX. 

WRIT OF HABERE FACIAS POSSESSIONEM. 

PAGE 

Introductory --------- 125 

Forms of Writ ........ 125 

Issue of Writ 126 

Execution of Writ -------- 127 

Bond of Indemnity ------- 127 

Forms of Warrant 128 

Return of Writ 130 

Forms of Return ....... 130 

Fees 131 

Incidental 131 



Introductory. 

This is a process of execution in an action of ejectment (Whar- 
ton, 743), and by Ord. XLII. r. 5 is directed to be used where 
there is a judgment for the recovery or for the delivery of the 
possession of land. It has also been substituted for a writ of 
assistance except for the recovery of chattels, in which case a 
writ of assistance may still issue. See Wymdn v. Knight, 39 
Ch. D. 165. 



Forms of Writ. 

1. Writ of Possession (Form No. 8, App. H., E. S. C. 1883). 

18 . No. 
In the High Court of Justice. 
Division. 

Between Plaintiff, 

and 

- and others Defendants. 
Victokia, by the grace of God of the United Kingdom of Great 
Britain and Ireland Queen, Defender of the Faith. To the sheriff 
of greeting : 

"Whereas lately in our High Court of Justice by a judgment of 
the Division of the same Court recovered [or was 



126 WRIT OF HABERE FACIAS POSSESSIONEM. 

ordered to deliver to ] possession of all that [describing 

the property recovered as in the judgment] with the appurtenances in 
your bailiwick : Therefore, we command you that you omit not by 
reason of any libertj'' of your county, but that you enter the same, 
and without delay you cause the said to have possession of 

the said land and premises with the appurtenances.* And in what 
manner you have executed this our writ make appear to us in our said 
Court immediately after the execution thereof and have you there 
then this writ. 

"Witness [name of Lord Chancellor], Lord High Chancellor 

of Great Britain the day of in the year of our Lord 



2. Writ of Possession and Fi. Fa. for Costs upon a Judgment for 
Plaintiff in Ejectment where Defendant has appeared. 

{Title as in preceding Form.) 

Victoria [Sfc. as supra]. To the sheriff of greeting: 

Whereas [Sfc. as in preceding form to the asterisk,* and proceed]. 
And we also command you that you omit not by reason of any 
liberty of your county but that you enter the same and that of the 
goods and chattels of the said in your bailiwick you cause to be 

made £ which the said lately in our said Court by a 

judgment of our said Court dated recovered against the said 

for the said 's costs of the said action, and which costs 

have been taxed and allowed by one of the taxing masters of our 
said Court at the sum of £ as appears by the certificate of the 

said taxing master dated the day of together with 

interest upon the said sum at the rate of £4 per centum per annum 
from the day of in the year of our Lord [date of 

taxing masters certificate] and have that money and interest afore- 
said in our said Court immediately after the execution hereof to be 
paid to the said . And in what manner you shall have exe- 

cuted this our writ make appear to us in our said Court immediately 
after the execution hereof : And have you there then this writ. 
Witness [$-c. as in preceding form]. 



Issue of Writ. 

The practice relating to the issue of this writ is governed by 
Ord. XLVII. of the Eules of the Supreme Court (q.v.). In cases 
in which the judgment or order is that a party do recover posses- 
sion of any land, demand and service is not necessary before the 
issue of the writ, but where by the judgment (under rule 2 of 
the above Order) some person is directed to deliver up possession 
of any land to some other person, service, but not demand, is 
necessary. Annual Practice, 1894, Part III. p. 1207. 



ISSUE OF WRIT. 127 

The writ should follow the description of the property which Writ to follow 
is inserted in the judgment or order, and the latter should f property in 
contain such a description as will clearly indicate the property judgment. 
of which possession is to be delivered. Thynne v. Sari, [1891] 
2 Ch. 79. 

The writ may be issued even after the plaintiff's title to the 
reversion has expired. Knight v. Clarke, 15 Q. B. D. 294. 



Execution of Writ. 



It is customary for the plaintiff to indemnify the sheriff in Customary 
connection with his execution of this writ. Com. Dig. Ex. (a) 3. ^indemnif 



sheriff. 



Bond of Indemnity. 

Kxow all men by these presents that we A. B. of C. D. 

of and E. F. of in the county of are held and 

firmly bound to Gr. H. of high sheriff of the said county in 

the sum of £ to be paid to the said Gr. H. or to his certain 

attorney executors administrators or assigns for which payment to 
be well and truly made we bind ourselves and each of us our and 
each of our heirs executors and administrators and every of them 
jointly and severally firmly by these presents sealed with our seals 
and dated this, &c. 

Whereas on the day of a.d. 18 a writ of hah. fac. 

poss. was delivered to the said Gr. H. at the suit of the above-named 
A. B. ; and whereas also the above-named A. B. hath applied to 
and requested the said high sheriff to deliver to him under the said 
writ certain tenements in his bailiwick that is to say which 

he hath consented to do upon being indemnified for so doing. 

Now the condition of the above written obligation is such that if 
the above-bounden A. B. C. D. and E. F. or any of them their or 
any of their heirs executors or administrators do and shall from 
time to time and at all times hereafter well and sufficiently 
indemnify the said Gr. H. from all costs and expenses to bo incurred 
or to which he may become liable by reason of the premises then 
that the above written obligation to be void otherwise to stand and 
remain in full force vigour and effect. 

Signed sealed and delivered in the ) A. B. 

presence of me . ) CD. 

E. F. 



If such indemnity be refused, the sheriff must deliver posses- 
sion of what is shown to him by the plaintiff or by some one on 
his behalf; if given, he must deliver what plaintiff requires. 
Connor v. West, 5 Burr. 2G73 ; 6th ed. Atk. 240. 



128 WEIT OF HABERE FACIAS POSSESSIONEM. 

Description " It has been determined over and over, that such exact and 

precise certainty is not requisite in ejectments, as in a precipe. 
A precipe in a real action requires exactness and precision ; but 
an ejectment is a fictitious action, contrived for ease, despatch, 
and saving expense ; and has of late times been taken with 
more latitude than formerly, and though it has been often said, 
' that the descriptions ought to be so certain that the sheriff 
may be able to know, without any information from the 
plaintiff, what he is to give possession of ' ; yet, in truth and 
fact, the sheriff delivers possession at the showing of the 
plaintiff, and at the peril of the plaintiff, who is at his peril, to 
take possession of no more than he is entitled to." Per Lord 
Mansfield in Connor v. West, supra. 

If a stranger's lands be shown to the sheriff by force whereof 
he enter, he is no trespasser. Dalt. 257. 

Form of Warrant. 

) sheriff of the county of aforesaid to 

to wit. | and my "bailiff s greeting : By virtue of the writ of 

hah. fac. poss. to me directed and delivered I do hereby command 
you and each of you jointly and severally to cause the said to 

have the possession of the said land in the said writ specified with 
the appurtenances ["and I do further command you or one of you" 
as in warrant in ji.fa., Src. if the writs be united] and forthwith certify 
the same to me. 

Given under the seal of my office this day of 18. 

(l.s.) Sheriff. 

Form of Sheriff's Warrant on a Writ of Possession and Pi. Pa. in 
same Writ for Costs. 

) Esquire, sheriff of the county aforesaid to 

to wit. j and my bailiffs, greeting: By virtue of Her Majesty's 

writ of possession and f. fa. to me directed and delivered, I command 
you and each of you jointly and severally, that you, or one of you, 
deliver to possession of [(/escribe the property as in the 

writ] with the appurtenances, in my bailiwick, and forthwith certify 
the same to me. Also that of the goods and chattels of in my 

bailiwick you or one of you cause to be made £ together with 

interest upon the said sum at the rate of 41. per centum per annum 
from the day of in the year of our Lord 18 , so that I 

may have that money and interest before our Lady the Queen in 
the Queen's Bench Division of Her Majesty's High Court of Justice 
immediately as required by tho said writ : And that you do all such 
things &c. : And in what manner you shall have executed this 
warrant certify to me immediately after the execution thereof. 

Given under the seal of my office this day of 18 , 

(l.s.) By the sheriff. 

Levy £ besides [$'c. Copy the indorsement on the ivrit]. 



EXECUTION OF WRIT. 



129 



In order to execute an habere facias possessionem, the officer "Writ, how 

executed 

may, if necessary, break open either the outer or the inner doors 

of the house. Semayne's Case, 5 Eep. 91 b. If violence be 

apprehended he should take the posse comitatus with him. The 

sheriff, or his officer, should remove all persons and their goods 

from off the premises, for if any persons are left thereon the 

execution is not complete. Upton v. Wells, 1 Leon. 145. 

The writ should be executed by the sheriff within a reasonable Writ should 

be executed 
time after receipt. But though the sheriff has a reasonable time within reason- 

for execution, " that does not excuse him in refusing to execute tune " 
a writ when he has the opportunity, is required to do so, and 
nothing occurs to prevent him." Per Denman, C.J., in Jlason 
v. Paynter, 1 Q. B. 974 ; 1 G. & D. 381. In that case judg- 
ment had been signed for the plaintiff in ejectment. He caused 
to be issued and delivered to the sheriff an habere facias posses- 
sionem ; then made an appointment with the sheriff for the 
purpose of executing the writ. The sheriff having been informed, 
by the defendant's attorney, that the proceedings were irregular, 
and would be set aside, did not execute the writ. The judg- 
ment was afterwards set aside on an affidavit of merits. It was 
held that the plaintiff was entitled to recover in an action 
against the sheriff the costs he had incurred in preparing to 
assist the sheriff to execute the writ. 

The sheriff ma} T give possession by delivery of part of the Possession, 
property, and that which he takes as a symbol of possession 
ought to be part and parcel of the thing itself. If delivery is 
required of a certain number of acres of land, the sheriff must 
give possession of so many acres in quantity according to the 
estimation of the county where the land is situate. Floyd v. 
Bet hill, 1 Roll. Rep. 420. If there be several tenements in the 
possession of one person, the delivery of possession of one tene- 
ment in the name of the whole is sufficient {Floyd v. Bit hill, 
1 Roll. Rep. 420) ; but if the several tenements are in the 
possession of several tenants, then possession should be given of 
each separately, for the delivery of one in the name of all is not 
sufficient. 

When the plaintiff recovers only an undivided portion of the 
property, the duty of the sheriff is not to turn out the persons 
in possession, but only to put the plaintiff in possession of the 
particular portion to which he is entitled. Doe d. Hellyt r v. 
King, G Ex. 793, per Tarke, B. ; Roe d. Saul v. Dawson, 3 
Wils. 49. 

M. K 



130 



WRIT OF HABERE FACIAS POSSESSIONEM. 



If the sheriff gives possession of any land not included in the 
writ, the Court will, it seems, order it to be restoi*ed. Connor v. 
West, 5 Burr. 2673 ; Roc d. Saul v. Dawson, 3 Wils. 49. 
Disturbance. As to disturbance, see Boo d. Lloyd v. Roc, 2 Dowl. N. S. 407; 
Doc d. Pitcher v. Roc, 9 D. P. C. 971 ; Kingsdalc v. Mann, 6 
Mod. 27 ; and Doe d. Thompson v. Mirehouse, 2 D. P. C. 200. 

The execution is not complete until the bailiffs are withdrawn 
and possession completely given [Anon., 6 Mod. 115 ; 6th ed. 
Atk. 242), and the writ is not completely executed until all 
persons and goods on the premises have been removed. 

Subject as above this writ is executed very similarly to an 
elegit. 

And see under title " Writ of Eestitution." 



Execution ; 
wh?n com- 
plete. 



Return of Writ. 

Return, un- Unless required to do so, it is not customary for the sheriff to 
not cus^ ire ' ma ^ e a return to this writ ; but it seems that strictly the sheriff 
tomary. should make a return as under an elegit. 

Poems of Return. 

1. Return to a Writ of Possession that no Person came to point out the 

Premises. 

I certify to Our Lady the Queen that this writ was delivered to 
me on since which time I have always been ready and willing 

to execute the same as within I am commanded ; but neither the 
within-named nor any person on his behalf ever came to show 

me the land \_or "premises"] within mentioned or any part thereof, 
or to receive possession of the same, or any part thereof, from me. 

The answer of , Esquire, sheriff. 

2. Return to Writ of Possession that Sheriff has delivered Possession. 

By virtue of this writ to me directed I did on deliver to the 

within-named possession of the within-mentioned land [or 

"premises"] with the appurtenances, as within I am commanded. 

Esquire, sheriff. 



3. Return to Writ of Possession and Fi. Fa. for Costs of Execution of 

Writ. 

By virtue of this writ to me directed I did on deliver to the 

within-named possession of the within-mentioned land [or 

" premises"] with the appurtenances, as within I am commanded : 
I further certify and return that the within-named hath not 

any goods or chattels in my bailiwick whereof I can cause to be 
made the costs and interest within mentioned, or any part thereof, 



RETURN OF WRIT. 

as within I am commanded [or "that I have caused to be made of 
the goods and chattels of the within-named the costs and 

interest within mentioned, which I have ready at the time and place 
within mentioned to be rendered to the said as within I am 

commanded]. 

Esquire, sheriff. 

In view of the sheriff's duty to, if necessary, raise the posse 
eomitatus, a return of inability to deliver possession because of 
resistance is a bad return. Dalt. Sh., 256. 



131 



Fees. 



The sheriff is entitled to an undertaking from the plaintiff 
for his (sheriff's) fees and expenses in connection with a writ of 
possession ; and as to such fees, see under " Sheriffs' Fees, &c," 
post, p. 505. 



Incidental. 

In the event of non- execution, or only partial execution, of a 
w r rit of possession, an alias habere may be sued out on the return 
of such WTit. Devereux v. UnderMll, 2 Keb. 245; Molineuxv. 
Fulgam, Palm. 289. See also Lessee of Massey v. Ejector, 1 
Jones, Ex. Ir. 457 ; and Lessee of Linehan v. Anthony, Batty, 
K. B. Ir. 453. But, if possession be once completely given 
under this writ, another WTit of possession cannot be issued by 
the plaintiff notwithstanding his being disturbed in such pos- 
session by the same defendant and that the sheriff has not yet 
returned the prior writ. Doe d. Pate v. Roe, 1 Taunt, oo. 

As to the jurisdiction of the Court to order the delivery up of 
a chattel not connected with land, see The Duke of Somerset v. 
Cookson, 3 P. Wms. 389 ; Pusey v. Prney, 1 Yern. 273; Fells v. 
Read, 3 Yes. 70 ; 3 P. P. 47 ; and as to the issue of a writ of 
assistance to recover a specific chattel, Cazet <!<• la Borde v. 
Othon, 23 AY. P, 110; and Wyman v. Knight, 39 Ch. D. 1G5, 
where such a writ was directed to be issued as recently as Julv, 
1888. 



k2 



132 



Chapter X. 



WEIT OF DELIVERY. 



Introductory - 
Forms of Writ 
Execution of Writ 

Fees - 



PAGE 

132 
133 
134 
134 



Writ issued 
for recovery 
of property 
other than 
land or 
money. 



As to assess- 
ment of value, 
&c. before 
issue of -writ. 



Introductory. 

The Mercantile Law Amendment Act (19 & 20 Vict. c. 97), 
s. 2, provides for the recovery of specific goods, and Ord. XLII. 
r. 6 of the Rules of the Supreme Court directs that a judgment 
for the recovery of any property, other than land or money, 
shall be enforced by (inter alia) a writ for the delivery of the 
property. Ord. XLYIII. rr. 1 and 2, ante, p. 30, regulate the 
issuing of the writ. 

It was held by Field, J., in Corbett v. Lewin, W. N. (1884), 62, 
that where an interlocutory judgment had been signed under 
Ord. XIII. r. 5, the writ could not be issued until after the 
value has been assessed and final judgment signed for the 
recovery of the chattel or its value ; but in Winfield v. JBoothroyd, 
34 ~W\ R. 501, it was held that, in an action of detinue, an 
assessment by agreement was sufficient, and the words "assessed 
value, if any," inserted in Rule 1 of Ord. XLYIII. appear to 
make assessment unnecessary in all cases, and also distinguish 
this rule from sect. 75 of the Common Law Procedure Act, 
1854, under which Chilton v. Carrington, 15 C. B. 730, relied 
on by Field, J., in his judgment in Corbett v. Lewin, was 
decided. 

It is in the power of the plaintiff to apply either for a writ of 
delivery leaving it in the option of the defendant to return the 
chattel or pay the value, or for a writ of delivery absolute 
whereby the sheriff is directed to distrain upon the lands and 
chattels of the defendant until he render to the plaintiff the 
chattel named in the judgment. 



FORMS OF WRIT. 133 

Cases may also arise in which this writ and the others men- Writ of 
tioned in Ord. XLII. r. may be found to be ineffectual, and 
the old writ of assistance may be required ; as to which see 
Wyman v. Knight, 39 Oh. D. 165. 



Forms of Writ. 

1. Writ of Delivery (Form No. 10 in App. H. to E. of S. C. 1883). 

18 [Here put the letter and number.] 
In the High Court of Justice. 
Division. 

Between A. B. Plaintiff 

and 
CD.- - - - - Defendant. 
Victoria by the Grace of God, &c. of Great Britain and Ireland 
Queen, Defender of the Faith. 
To the sheriff of greeting. 

We command you that without delay you cause the following 
chattels, that is to say, [here enumerate the chattels recovered by the 
judgment or order for the return of which execution has been ordered 
to issue~\ to be returned to A. B., which the said A. B. lately in our 
High Court of Justice recovered against C. D. [or C. D. was ordered 
to deliver to the said A. B.] in an action in the Division of 

our said Court.* And we further command you, that if the said 
chattels cannot be found in your bailiwick, you distrain the said 
C. D. by all his lands and chattels in your bailiwick so that neither 
the said C. D. nor any one for him do lay hands on the same until 
the said C. D. render to the said A. B. the said chattels. f 
And in what manner, &c. 
And have you there then this writ. 
"Witness, &c. 

2. The like, but instead of a distress until the chattel is returned, 

commanding the sheriff to levy on defendants goods the assessed 
value of it (Form No. 11 in App. H. to E, of S. C. 1883). 

[Proceed as in the preceding form until the,* and then thus'] And 
we further command you that if the said chattels cannot be found 
in your bailiwick, of the goods and chattels of the said C. D. in 
your bailiwick you cause to £ [the assessed value of the 

chattels].] And in what manner, &c. 

And have 3-011 there then this writ. 

AVitness, &c. 

[If in cither of the preceding forms it is wished to include damages, 
costs, and interest, proceed to the \ and continue thus] 

And we further command you that of the goods and chattels of the 
BaidC. D. in your bailiwick youcauseto be made the sum of £ 
[damages] And also interest thereon at the rate of £4 per centum 



134 



WRIT OF DELIVERY. 



per annum from the day of -which said sum of money 

and interest were in the said action by the judgment therein [_or 
by order dated the day of ] adjudged [_or ordered] to 

be paid by the said C. D. to A. B. together with certain costs in the 
said judgment \_or order] mentioned and which costs have been 
taxed and allowed by one of the taxing officers of our said Court at 
the sum of £ as appears by the certificate of the said taxing 

officer dated the day of And that of the goods and 

chattels of the said C. D. in your bailiwick you further cause to be 
made the said sum of £ [costs] together with interest thereon 

at the rate of £4 per centum per annum from the day of 

and that you have that money and interest before us in our said 
Court immediately after the execution hereof to be paid to the said 
A. B. in pursuance of the said judgment [_or order]. 

And in what manner &c. 

And have you there this writ. 

Witness &c. 



How exe- 
cuted. 



Return of 
nulla bona 
where defen- 
dant is a 
beneficed 
clerk. 



Execution of Writ. 

This writ is delivered to the sheriff for execution and is 
executed in the same manner as a writ of fieri facias, and the 
sheriff may be compelled to return it in the same way. There- 
fore, adapt the various forms accordingly. The following is, 
however, a form of return in the case of nulla bona and where 
the defendant is a beneficed clerk, and on which return execution 
against ecclesiastical goods is founded. 

Return of Nulla Bona. 

"The within named C. D. has no goods or chattels, nor any lay 
fee in my bailiwick, which I can seize or take, or pay, or deliver to 
the within-named A. B. or whereof I can cause to be made the 
moneys [or £ ] and interest within mentioned, or any part 

thereof as I am within commanded : but I do hereby certifj r that 
the said C. D. is a beneficed clerk, to wit, rector of the rectory \_or 
vicar of the vicarage, or as the case may be~] and parish church of 
in my county, which said rectory [_or vicarage] and parish 
church are within the diocese of the Bight Reverend Father in God 
by Divine permission Lord Bishop of [_or within the 

peculiar jurisdiction of the Very Reverend the Dean and Chapter 
of the Cathedral Church of St. of and instituted to try 

them as ordinary, as the case may be]." 



Fees. 



See under " Sheriffs' Fees, &c," post, p. 505. 



135 



Chapter XI. 

WRIT OF EXTENT. 

PAGE 

Introductory 135 

Form of Writ 138 

Execution of Writ -------- 139 

Form of Warrant 139 

Inquisition --------- 140 

Mode and Extent of Seizure ------ 141 

Order of Extents -------- 143 

What may be taken (comprising Croton's Lira) - - - 144 
What may not be taken (or only taken subject to Superior 

Claims, fyc.) 14G 

Crown's Priority 147 

Disputing Crown Debt and Adverse Claims- - 149 

Disc/targe of Debtor ------- 150 

Return on Inquisition ------- 150 

Delivery of Lands, Goods and Chattels - 152 

Sale -' 152 

Fees 153 



Introductory. 

The writ of extent is a writ of execution against the lands and Writ of ex- 
goods of the Crown-debtor. It is the peculiar remedy of the 
sovereign in order to compel the payment of all debts of record 
due to the Crown. It is called an extent from the words of 
the writ extendi facias, and by it the sheriff is directed to cause 
the lands, goods and chattels of the debtor to be appraised at 
their full or extended value before being delivered to satisfy the 
debt. No allusion is made to an extent in the earlier Orders 
under the Judicature Acts, and by Ord. LXII. nothing therein 
was to affect the practice or procedure on the Revenue side 



136 



WRIT OF EXTENT. 



Inquisition 
to be held. 



Extent 
generally pre- 
ceded by a 
scire facias. 



Writ of ex- 
tent in aid. 



of the Exchequer Division. Now, however, by Ord. LXYIII. 
r. 2, this procedure is assimilated to the procedure in an ordinary 
action. 

According to Stephen's Commentaries, 11th ed., Yol. III., at 
p. 686, " A debt of record, as regards the Crown, is subject in 
general to the same definition as in the case where the party to 
whom it is due is a subject; but there are several instances in 
which a debt is so ranked in favour of the Crown, by way of 
exception from the general rule, and by force of its special 
prerogative." It was enacted by 33 Hen. 8, c. 39, that all 
obligations made to the Crown should be "of the same nature, 
force and effect to all intents and purposes " as a statute staple, 
whilst by 13 Eliz. c. 4, all the lands of every accountant of the 
Crown (except accountants under £300 per annum) are declared 
liable to payment of all debts upon their accounts from them to 
the Crown, and " in like and in as large and beneficial manner 
to all intents and purposes " as if they had on the day they first 
became such accountants stood bound by writing obligatory 
having the effect of a statute staple. 

By the writ of extent a sheriff is, it will be observed, directed 
to hold an inquisition on the oaths of good and lawful men in 
his bailiwick for the purpose of inquiring as to and appraising 
the value of the lands, goods and debts of the Crown-debtor, 
and to take and seize the same into the hands of the sovereign. 
In order to afford the debtor an opportunity of showing that the 
writ should not issue, the extent should, it seems, generally be 
preceded by a scire facias (a), although if the debt is in danger 
of being lost an immediate extent may, it seems, be issued on 
affidavit of circumstances. As to the issue of an immediate 
extent, see 28 & 29 Vict. c. 104. 

An extent in aid is issued at the suit of the Crown- debtor 
against a person indebted to such Crown-debtor. By 57 Greo. 3, 
c. 117, after reciting that " extents in aid have in many cases 
been issued for the levying and recovering of larger sums of 
money than were due to his Majesty by the debtors on whose 
behalf such extents were issued, and it is expedient to prevent 
such practice in future, and in other cases extents in aid have 
been issued at the instance and for the benefit of persons in- 
debted to his Majesty by simple contract only," it was enacted 



(a) As to reference in this branch to scire facias, see under title "Writ 
of Scire Facias" pod, p. 224. 



INTRODUCTORY. 137 

that the amount of debt due to the Crown should be stated in 
the fiat for the extent in aid and that such amount or the amount 
due to the Crown-debtor, if less, should be endorsed upon the 
writ as the sum to be levied by the sheriff —with the therein 
mentioned provision for any surplus on any sale under such 
writ — and further that the therein mentioned Crown-debtors 
should be precluded from issuing this writ in certain cases. It 
seems the practice has been not to issue a fiat for an extent in 
aid except on affidavit that the debt is otherwise in danger of 
being lost to the Crown. 

There is, in addition, an extent in chief in the second degree. "Writ of ex- 
This is a proceeding instituted by the Crown at its own instance ^ t ^ e gecon a 
against the debtor of the Crown-debtor, and to this last men- degree, 
tioned writ 57 Geo. 3, c. 117, does not, it seems, apply. 

" Under the extent in chief in the second degree the sheriff is "What may be 
to take the body, goods, lands, debts, credits, specialties, and extent in chief 
sums of money of the defendant, in the same manner as under V 1 second 

f ' degree. 

an extent against the Crown's first debtor ; the goods, debts, &c. 
of the debtor of the Crown-debtor being bound in the same 
manner as the goods, debts, &c. of the Crown-debtor on the first 
extent; and all the observations made in this particular with 
respect to the first extent in chief, will apply to the extent in 
the second degree. But with respect to the lands of the Crown- 
debtor's debtor, which the sheriff is directed to seize under the 
extent in chief in the second degree, they of course are bound 
merely from the recording of the debt from the Crown- debtor's 
debtor to the Crown-debtor under the inquisition ; unless, 
indeed, the debt due to the Crown-debtor be by judgment or 
recognizance ; in which cases, the Crown, of course, takes 
the lien of the plaintiff in the judgment, or conusee in the 
recognizance, on the land of the defendant or the conusor, which 
they had at the time of the judgment entered, or recognizance 
acknowledged." West on Extent, p. 247. 

In the event of the death of the Crown-debtor a special writ Writ of diem 
of extent is issued. It recites the death of the debtor and is, there- tremum. ' 
fore, called a writ of diem clausit extremum. It is issued on an 
affidavit of the debt and death (28 & 29 Vict. c. 104, s. 47), and 
by it the sheriff is directed to take and seize the chattels, lands, 
and debts of the deceased Crown-debtor into the hands of the 
Crown. In other words "the writ of diem clausit extremum . . . 
is a writ directing the sheriff to inquire, by means of a jury, 
when and where the Crown-debtor died, and what goods and 



138 WRIT OP EXTENT. 

chattels, debts, credits, specialties, and sums of money, and 
what lands the said debtor had at the time of his death, &c, 
and to take and seize the same into the king's hands." West, 
319. And see as to procedure for issue of a writ of diem clausit 
extremum 28 & 29 Vict. c. 104, s. 47. 



Form of Writ. 

Writ of Extent m Chief. 

Victoria, &c. to the sheriff of greeting. 

Whereas A. B. and C. D. of by their writing obligatory 

sealed with their seals bearing date the clay of a.d. 18 

became jointly and severally bound to Us in the sum of £ of 

good and lawful money of Great Britain payable at a day now past 
which said sum of money they have not nor hath either of them yet 
paid or caused to be paid to Us as We are informed ; and We being 
willing to be satisfied the same with all the speed We can as is just 
do command you that you omit not by reason of any liberty in your 
bailiwick but enter the same and take the said A. B. and C. D. by 
their bodies wherever they shall be found in your bailiwick and 
keep them safely and securely in prison till We shall be fully satisfied 
the said debt ; and that as well by the oaths of good and lawful 
men of your bailiwick as by the oath and testimony of any other 
good and lawful men by whom the truth may be the better known 
as by all other lawful means you diligently enquire what lands and 
tenements and of what yearly values the said A. B. and C. D. or 
either of them had in your bailiwick on the said day of 

a.d. 18 on which day they first became Our debtors as aforesaid or 
at any time since ; and what goods and chattels and of what sorts 
and prices and what debts credits and specialties and sums of money 
the said A. B. and C. D. or either of them or any person or persons 
to their or either of their use or in trust for them or either of them 
now hath or have in your bailiwick : and that all and singular such 
goods and chattels lands and tenements debts credits specialties and 
sums of money in whose hands soever the same now are you dili- 
gently appraize and extend on the oaths of the said good and lawful 
men, and do take and seize the same into Our hands there to remain 
until Wc shall be fully satisfied the said debt according to the form 
of the statute made for the recovery of such Our debts : and lest 
this Our command should not be fully executed We further com- 
mand and empower you by these presents to summon before you 
such persons as you shall think proper and carefully examine them 
in the premises and that you distinctly and openly make appear to 
the justices of the Queen's Bench Division of the High Court of 
Justice on the day of next in what manner you shall 

have executed this Our command and that you then have there this 
writ : Provided that what goods and chattels you shall seize into 
Our hands by virtue hereof you do not sell or cause to be sold until 
We shall otherwise command you. Witness, &c. 



EXECUTION OF WRIT. 139 

Execution of Writ. 
Form of Warrant. 

County of ) sheriff of the county aforesaid, to the 



to wit . j keeper of the gaol of the said county, and also to 

and my bailiffs, greeting : By virtue of her Majesty's 

writ of extent to me directed, I command you and every of you, 
jointly and severally, that you omit not, &c. but take if he 

shall be found in my bailiwick, and him safely keep, so that I may 
have his body before the justices of the Queen's Bench Division of 
her Majesty's High Court of Justice on the day of and 

also, that you seize and take all and singular the goods and chattels, 
lands and tenements, debts, credits, specialties, and sums of money 
which the said or any other person or persons in trust for 

him, or to his use, have or had on the day of in the 

year of the reign of her present Majesty ; so that I may 
cause the same to be diligently appraised and extended, and to be 
taken and seized into her Majesty's hands, that she may retain the 
same until she be fully satisfied a debt or sum of £ according to 
the form of the statute made for recovering her Majesty's debts of 
that nature, but that you do not sell or dispose of the said goods 
and chattels, lands and tenements, until you have other commands 
from me herein. 

Hereof fail not, as you will answer at your peril. Given under 
the seal of my office this day of in the year of Our Lord 

one thousand eight hundred and 

With respect to the body of the defendant, it cannot be bailed. As to body of 
West, 73. The capias clause of the writ of extent is not usually 
enforced, lie.r v. Plaw, 3 Price, 94. 

The sheriff may, if the doors be not open, break the party's As to break- 
house to arrest him, but before he breaks it, he should signify ° 
the cause of his coining and. make request to open the door. 
West, 73. 

Where the seized property of a Crown-debtor was ample to As to dis- 
cover the demand, he was ordered to be discharged. Rex v. c arge ' 
luiuirar, 3 Price, 536. A party in custody under a writ of and escape of 
extent at the suit of the Crown, allowed voluntarily to escape, 
but retaken and restored into the same custody and under the 
same writ, is rightly in custody, and is not entitled to his dis- 
charge. Reg. v. Renion, 2 Exch. 216 ; 17 L. J. Ex. 204. 

Crown debts are not subject to the provisions of the Debtors Crown debts 
Act. In re Smith, 2 Exch. D. 47 ; 46 L. J. Q. B. 73. DebtoS lit? 

For fuller particulars as to mode of arrest, &o., see under title 
" Arrest," post, p. 154. 



140 



WRIT OF EXTENT. 



Inquisition. 

Evidence. With regard to the inquisition, " a summons should be issued 

by the sheriff to the defendant, and to all other persons who 
can give any evidence as to the defendant's property, to attend 
before the inquisition ; if either the defendant or the witnesses 
summoned do not attend, or refuse to answer any questions put 
to them (excepting only questions, the answers to which would 
subject them to punishment), the Court will grant an attachment 
against them." 2nd ed. Watson on Sheriff Law, 370. 

Jurors. The remarks as to the qualification, liability, exemption, sum- 

moning, and payment, &c. of jurors on an inquiry under a 
writ of inquiry are mutatis mutandis applicable to jurors on an 
inquisition, or appraisement, under a writ of extent. See, there- 
fore, under title " Assessment of Damages, &c," post, p. 408. 

Juror's Oath. 

You shall well and truly inquire what lands and tenements and 
of what yearly value A. B. has and -what goods and chattels and of 
what sorts and values and of what debts credits specialties and sums 
of money the said A. B. or any person or persons to his use or in 
trust for him now have and that you appraise such goods and 
chattels so that I may extend seize and take the same into her 
Majesty's hands until she shall be fully satisfied the sum of £ 
due to her upon an extent directed to me . So help you God. 



Claimant may 
cross-examine 
prosecutor's 
witnesses. 



Finding 
of jury. 



Manner of 
stating the 
interest of 



The inquisition to find debts, &c. on an extent is not altogether 
an ex parte proceeding ; and a claimant of property in the goods 
inquired of may assert his claim before the sheriff and cross- 
examine the prosecutor's witnesses on material points with the 
object of showing the goods to be his (claimant's) property; and 
if the sheriff will not allow such interrogatories to be put, the 
Court will set aside the extent and inquisition. Hex v. Bickley, 
3 Price, 454 ; and Rex v. Collingridge, 3 Price, 280. 

In an immediate extent on an inquisition to find debts, the 
jury may find the fact of a debt being due to the Crown on the 
sole evidence of an affidavit that the debt is due. Reg. v. Kyle, 
9 M. & W. 227 ; 6 Jur. 238. 

The jury's findings of facts, especially descriptive of lands, 
should be full and precise. Rex v. BicMey, supra ; and Rex v. 
Sherwood, 3 Price, 269 ; and see Rex v. Rawlings, Ex parte 
Wilkinson, 12 Price, 834. 

"With respect to the manner of stating the interest of the 
debtor in the inquisition, where trust estates are seized, it would 



INQUISITION. 141 

be correct, and, indeed, the duty of the sheriff and jury, to debtor in the 
state the interest of the debtor in the inquisition as it is proved 
before them. If, however, the sheriff should not be able to 
obtain any other evidence of the debtor's interest than his 
possession, and the jury should consequently return that he is 
seized in fee, this would give the Crown the whole interest to 
which the debtor is entitled. For as any person who traverses 
the inquisition must not only traverse the Crown's title, (that is, 
in this case, the title of the Crown-debtor,) but must also show 
title in himself, all that he does not take from the Crown by 
proving title in himself will remain in the Crown, though the 
Crown's title should not be, precisely, as found by the inquisi- 
tion." West, 135 ; and see as to latter statement Rex v. 
Soulby, 1 Y. & J. 249. 

In an inquisition on an extent in aid, it is sufficient that the 
prosecutor of the extent is found to be indebted to the Crown 
(generally) at the time of taking the inquisition, without stating 
the amount of the debt or the time and manner of its accruing 
due. Rex v. Franklin, 5 Price, (514. 

An inquisition finding special matter, without stating any 
conclusion as a fact, is bad and may be quashed on motion. 
Rex v. Sherwood, 3 Price, 269. 

And see under " Order of Extents," post, p. 143. 

The inquisition may, it seems, be adjourned or another Adjournment 
inquisition may be held before the writ is returned in order to luc i ulsltlon - 
find property not found by the first. In this case a return is 
made to the Court of both inquisitions. 



Mode and Extent of Seizure. 

" With respect to the lands, the seizure is merely nominal ; Finding of 
and the sheriff does nothing but find them through the medium lands - 
of the jury ; which finding is, in effect, the seizure." West, 74. 

" The sheriff under an extent may either extend or appraise a Term of 
term for years ; but it is not bound, in the hands of a bond fide - voars - 
purchaser, by the bond or other record to the Crown ; but 
merely, like other chattels, from the award of execution." lb. 
136. 

With regard to the propriety of the sheriff seizing the lands, As to the 
if the good?, &o. be sufficient, West, after referring to the judicial HKrtjJjod. 



142 



WEIT OF EXTENT. 



and lands to 
be seized. 



When sheriff 
may break 
debtor's 
house. 



Restoration 
of property. 



Sheriff not to 
sell until 
ordered. 



Sheriff has no 
power to 
collect debts 
due to Crown 
debtor, but 
only to seize. 



arguments pro and con. says : " But notwithstanding these 
arguments, it appears clear from the form of the present writ of 
extent, and of the return which is always made to it, that the 
sheriff may seize the lands, though the goods should be sufficient 
to satisfy the debt. Yet if the goods are fully sufficient, it 
cannot be apprehended that he would run any risk by omitting 
to seize the lands." It will be, however, observed {infra) that 
the Court will not make an order for the sale of the debtor's 
lands, if goods sufficient to pay the debt have been seized under 
the extent. " It would appear (and such, indeed, is generally 
understood to be the law) that it is strictly the duty of the 
sheriff to seize all the defendant's goods, though to ten times 
the amount of the debt ; and all his debts, &c. and lands, 
though the goods may be ten times more than sufficient to 
satisfy the debt. But though such is the direction contained 
in the writ, and though such, strictly speaking, is the duty of 
the sheriff, it seems to me that the sheriff would run no risk in 
seizing less than the whole, provided he seized fully sufficient to 

satisfy the debt And [for the therein mentioned 

reasons] it can never be the sheriff's interest to seize goods to a 
larger amount than will be fully sufficient to cover the debt, 
nor to seize the debtor's lands or other estate if the goods be 
sufficient." West, 75. 

"If no other person than the defendant has any property 
in the goods, either general or special, at the date of the teste of 
the extent, the sheriff should seize them." lb. 114. 

If the doors be not open, the sheriff may also break the 
party's house to take the goods, but as in the case of arrest he 
ought, before he breaks it, to signify the cause of his coming, 
and make request to open the doors. 

Where the debtor's property is ordered to be restored to him 
on his giving approved security, the sheriff is responsible for 
restoring it before the approval of such security. Rex v. 
Kin near, 3 Price, 536. It will also be observed that the sheriff 
must not sell any goods seized by him under the extent until so 
ordered, as to which see post, p. 152, under sub-title " Sale." 

" The sheriff has no power on an extent against the Crown- 
debtor to collect or levy the debts due to the Crown-debtor ; he 
is merely to seize them, which seizure is a seizure in law. The 
sheriff has, indeed, no power of compelling payment .... the 
only means of compelling payment is by suing out a scire facias, 
or an immediate extent, against the debtors of the Crown-debtor, 



ORDER OF EXTENTS. 143 

after the return of the inquisition. And if a debtor of the 
Crown-debtor were to pay his debt to the sheriff, and the extent 
against the Crown-debtor were set aside by plea or otherwise, 
his payment to the sheriff would be no answer to an action by 
his creditor. And it may be doubted, if the sheriff were to 
neglect to pay the money over to the Crown, how far such pay- 
ment to the sheriff would be deemed a payment to the Crown." 
West, 171. 

" Specialties used formerly to be annexed to the inquisition, Specialties, 
and returned with it, but the sheriff now usually keeps them 
till called upon to deliver them to the solicitor for the Crown." 
lb. 74. 



Order of Extents. 

" Extents in chief take place inter so according to their teste. 
An extent in chief finding the same goods found upon a former 
extent in aid shall be preferred and paid before it. If an extent 
in aid issue and goods be found and seized, and upon a 
vvik! it it mi exponas the sheriff return that he has the money, and 
an extent in chief then comes, which also finds the goods first 
extended, the king shall have the money {i.e. on the extent in 
chief) but not if the money had been delivered over. If goods 
are found on an extent in aid, and then an extent in chief 
comes, on which goods are found, but not the same that were 
found on the extent in aid, as to which no evidence is offered, 
nor is it insisted that they should be found, and then another 
extent in chief comes, and the party prosecuting it offers to find 
what was seized in aid, and is refused, the Court will order a 
new extent of the like teste as the second extent in chief, and 
refuse it to the first extent in chief. Where the same goods as 
are found under one extent are also seized under a second, it 
should be mentioned in the second inquisition that these goods 
are subject to the first extent. And where the two extents are 
executed at the same time, as the sheriff may have some doubt 
about their priority, it would seem to be the safest way to 
mention in the inquisition under each extent that the goods are 
seized under the other extent." West, pp. 117 and IIS, and 
see as to priority of extents in chief over extents in aid, Rex v. 
Larking, 8 Price, 683. 



144 



WRIT OF EXTENT. 



Legal and 
trust estates, 
&c. 



Term of 
years. 

Equity of 
redemption 
and other 
equitable 

interests. 



Where extent 

against 

several. 



Exception as 
to necessaries 
for Crown- 
debtor and 
family and 
art rill carucce. 

Whatever 
seizable under 
ji. fa. is seiz- 
able under 
extent, but 
not vice versa. 



Goods in 
trust. 



Goods subject 
to duties of 
excise, &c. 



What may be taken (comprising Crown's Lien). 

"As to the nature of the interest which may be taken under 
the Crown's execution against land, the Crown may [as already 
indicated] take not only the legal estate of its debtor, but also 
trust estates, as also lands conveyed with power of revocation 
and lands purchased in trust for Crown-debtor." West, pp. 129, 
130, and 133. A term of years may be also taken and " may be 
either appraised as a chattel or extended as land under the 
extent." lb. 117. Moreover, an equity of redemption may be 
taken under an extent (Rex v. Delamotte, For. 162), as also 
other equitable interests and rents and impropriate tithes. See 
Prideaux's Precedents in Conveyancing, 15th ed., Vol. L, 
p. 147. 

" If the extent be against several, it always directs the sheriff 
to inquire what lands and tenements the said A., B., and C, &c. 
have, or any or either of them have or hath, and to seize the 
same, &c. by which it appears that the lands of each or any of 
the defendants are liable to be seized." West, 136. 

" Under an extent all the goods and chattels of the Crown- 
debtor may be taken, except things necessary pro victu of him- 
self and his family ; except also areria ca niece, if there be other 
chattels sufficient." lb. 96. 

" With respect to the goods of the defendant, it may be 
observed, as a general rule for the direction of the sheriff, that 
whatever may be taken under a fi. fa. may also be taken under 
an extent ; but the converse of this proposition of course does 
not hold, as the extent has all the properties of the fi. fa. and 
many others, even as to goods, which they?, fa. has not." lb. 73. 
Again, " the general rule of law, with respect to what goods and 
chattels may be taken under an extent, is this : that all goods 
and chattels, the absolute property of which remains in the 
debtor (i.e., where there is no special property in a third person) 
at the date of the teste of the extent, may be taken under the 
extent." lb. 97. And by the extent the sheriff is directed also 
to seize all goods, &c. that any person may have in trust for, or 
to the use of the defendant. lb. 116. 

Moreover, by 4 Vict. c. 20, s. 24, all goods subject to 
duties of excise, and all materials, machinery, vessels, and 
implements used in the manufacture, are liable for all duties, 
arrears, and penalties incurred whilst in the trader's possession, 
subject to such liability ceasing where goods duly charged with 



WHAT MAY BE TAKEN (COMPRISING CROWN'S LIEN). 145 

duty have been sold and delivered in the fair and ordinary course 
of trade. 

The Crown's lien for malt duties is, moreover, superior to that Crown's lien 
of a factor, and goods which have become chargeable to the 
Crown for duties cannot be discharged, except by an actual bond 
fide sale. Att.-Gm. v. Trueman, 13 L. J. Ex. 70 ; 11 M. & TV. 
694; and see AU.-Gen. v. Walmsley, 13 L. J. Ex. 06; 12 
M. & TV. 179. The lien is, however, divisible and confined to 
the several specific matters in respect of which the various several 
sums of the duties have accrued, and the whole is not liable 
generally to the satisfaction of the duties arising on each several 
part. Rex v. Bale, 13 Price, 739. 

" The sheriff is also to seize money, the property of the Money, 
defendant." West, 172. As to an extent against a banker for 
the recovery of Crown moneys, see Reg. v. Adams and Warren, 
2 Ex. 299; Rex v. Ward, 2 Ex. 301. The sheriff is directed Debts, credita 
to also inquire as to and seize the Crown debtor's debts, credits and tfeB. 
specialties. Debts due to the Crown debtor may be seized under 
the extent, though they are due only on simple contract. See 
TVest, 162. He may, moreover, seize bonds before they are 
due, though a scire facias or extent cannot issue on them till 
they become due. lb., 172. Under an extent against several, 
the debts due to any one may be seized. lb., 169. So under 
an extent against one, the debts due to that one and another 
or others may be seized. lb., 170. It would seem that on an 
extent in chief the Crown may seize debts to its debtor, ad 
infin daai ; but that on an extent in aid debts cannot be seized 
beyond the third degree, counting the Crown debtor as one of the 
degrees. lb., 303; although see Rex v. Lushington, 1 Price, 94. 

As to an extent against one partner, by the Partnership Act, Extent 

fi ( - r iiD , >tj n 

1890 (53 & 54 Vict. c. 39), s. 23, after the commencement of partner. 

that Act (1st January, 1891) a writ of execution shall not issue 

against any partnership property except on a judgment against 

the firm, although provision is thereby made for a judgment 

creditor of a partner having an order charging such partnership 

interest in the partnership property, &c. 

As to what may be taken under an extent in chief in the What may be 

second degree, see ante, p. 137, under " Introductory." As to ex tenta La 

what may be taken under an extent in aid, " the same property clncf "* , 

* . -I second degree 

as may be taken under the extent in the second degree may be and in aid. 

taken under the extent in aid. The body, too, may be taken 

under an extent in aid." TVest, 292. And as to what is 

M. L 



146 



WRIT OF EXTENT. 



seizable under an extent in aid, see Rex v. Lambton, 5 Price, 
428 ; and with regard to debts seizable tliereunder, see ante. 



Copyholds. 

Equitable 
mortgage. 



Lien of factor 
or wharfinger 
or bona fide 
assignment 
in trust for 
creditors. 



Goods pawned 
or pledged. 



But goods 
fraudulently- 
conveyed 
away may 
be taken. 



Exoneration 
of lands. 



What may not be taken (or only taken subject to Superior 
Claims, &c). 

Copyholds are not extendible by Crown process. The execu- 
tion of a power cannot defeat Crown debts (see Reg. v. Ellis, 
19 L. J. Ex. 77), but an equitable mortgage effected by deposit 
of title deeds by a Crown debtor binds the Crown. See Casberd 
v. Att.-Gm., 6 Price, 411. 

"It is conceded, that the Crown cannot avoid an equitable 
mortgage {Casberd v. Att.-Gen., 6 Price, 411) ; or the lien of a 
factor {Rex v. Lee, 6 Price, 369) ; or of a wharfinger {Rex v. 
Humphrey, 1 McCle. & Yo. 173) ; or a bond fide assignment in 
trust for creditors {Rex v. Watson, West, 115) ; or any other 
similar assignment or charge ; because they are created when 
the debtor has legal power and authority to create them, and 
attach upon the goods before the process of the Crown, and the 
Crown can only take the goods subject to such liabilities as the 
debtor has legally created." Per Patterson, J., in Giles v. 
Grovcr, 9 Bing. 139. 

" So again, in the case of goods pawned or pledged before the 
teste of the extent {Rex v. Cotton, Par. 112) ; and in the case of 
Rex v. Humphrey, 1 McCle. 19, the same law prevails." Per 
Alderson, J., lb. 161. " Goods demised or lent to another for 
a term certain cannot be taken during the term. But goods 
fraudulently conveyed away to defeat the execution may be 
taken as well under an extent as under afi. fa., and that whether 
the Crown is taken to be within the protection to creditors 
afforded by the statute 13 Eliz. c. 5 or not." "West, 115. 

With regard to the exoneration of lands, see sects. 9 and 10 
as qualified by sect. 11 of 2 & 3 Yict. c. 11 with due regard to 
the partial repeal of sects. 10 and 11 by the Statute Law Revision 
Act (No. 2), 1890 (53 & 54 Vict. c. 51) ; see also 18 & 19 Vict. 
c. 15 ; 22 & 23 Vict. c. 35, s. 22 ; and 23 & 24 Vict. c. 115. 



crown's priority. 147 

Crown's Priority. 

The Crown debtor's lands are in general bound from tlie time When lands, 
when the debt became a debt of record, which, as to the bonds | ette i 3ecome 
referred to in 33 Hen. 8, c. 39, appears to be from the time of bound, 
the execution of such bonds. And, as already intimated, by 
13 Eliz., c. 4, the lands of the therein mentioned accountants of 
the Crown are declared liable for their debts to the Crown in 
the same manner as if they had on the day they first became 
such accountants stood bound in writing obligatory having the 
effect of a statute staple. The Crown debtor's goods are, it 
seems, bound from the teste of the extent though sold in market 
overt. It appears, however, that the Crown debtor's debts are 
boimd only from the caption of the inquisition under which they 
are found. By 33 Hen. 8, c. 39, s. 51, provision is made for 
Crown suits having preference to private suits, provided the 
Crown suit be commenced, or process be awarded for the Crown 
debt at the suit of the Crown, before judgment given for such 
private persons. But by sect. 48 of the Crown Suits, &c, Act, 
1865 (28 & 29 Yict. c. 104), any judgment, decree or order, 
any recognizance, any inquisition of debt, or any obligation or 
specialty in the Crown's favour, or any acceptance of office under 
the Crown, after the commencement of such Act (1st November, 
1865), shall not affect any land as to a bond fide purchaser for 
valuable consideration or a mortgagee (whether they have or 
have not notice of such judgment, &c), unless a writ of extent, 
or other process of execution in relation to such judgment, &c., 
has been issued and registered before the execution of the con- 
veyance or mortgage in question and the payment of the pur- 
chase or mortgage money (/;). 

" The goods and chattels of the Crown debtor are, as before When money 
stated, bound from the fiat or teste of the extent ; but it may be {^^J 68 
a question, whether money like goods and chattels is bound from 
the teste of the extent, and can be followed in the hands of 
creditors, to whom it has been paid bond fide after the teste of 
the extent. The inconvenience of holding that money is bound 



(/<) 2S (X: 29 Vict. c. 104, 8. 48 relates to Crown debts dal iiently 

to the 5th July, ls(;,>. For provisions for registration of Crown debts, &c. 
as to purchasers and others in relation to Crown judgments, &c. obtained 
prior to the 5th July L865, see 2 & 3 Vict. c. 11, ss. 9, 10, and 11, sub 
to partial repeal of sects. 10 and 11 by the Statute Law Revision Act 
(No. 2), 1890, ami seo 22 & 23 Vict. c. 35, s. 22. 

1,2 



148 



WRIT OF EXTENT. 



by the teste of the extent, so as to rip up all payments bond fide 
made by the Crown debtor between the teste of the extent and 
the caption of the inquisition, would be so considerable .... 
as to induce a conjecture, there being no authority on the 
subject, that the Court would probably hold that payments 
made bond fide by the Crown debtor before the caption of the 
inquisition are good payments, and that the money could not 
be recovered back from the creditors, to whom it was so paid." 
West, pp. 172, 173. 

" Seizure under an extendi facias is the inception of the execu- 
tion, delivery under a liberate is the completion, and so is sale 
under afi.fa." Per Patterson, J., in Giles v. Grover, 9 Bing. 
151. 

The doctrine of the Crown process having priority where it 
plies to extent hears teste on a day subsequent to a subject's execution on a 
in aid. j\ cn f ac ; ((S under which the sheriff has seized applies to cases 

of extent in aid. Hex v. Sloper, 6 Price, 114; and see Batfcr 
v. Butler, 1 East, 338; S. P. Aft. -Gen. v. Aldersey, 1 East, 341; 
as also Rex v. Osbourne, 6 Price, 94 ; and Stracey v. Hulse, 2 
Doug. 411. See also Swain v. Morland, 3 Moore, 740 ; and Giles 



Inception and 
completion of 
execution. 



Crowi 



Commensu- 
rate only 
with interest 
of debtor, 



cannot be 
defeated by 
distress for 
rent. 



Crops. 



Saving of 
prerogative 
of Crown. 



v. Grover, 9 Bing. 128. Although the title of the Crown 
attaches from the teste of the writ, it is commensurate only with 
the interest of its debtor, and therefore, where that was deter- 
mined by the act of seizure under a claim of forfeiture in a 
lease, the title of the Crown was defeated by the same event. 
Rex v. Topping, McCle. & Yo. 544. The Crown's priority can- 
not be even defeated by a distress for rent (even though the 
goods have been actually distrained and appraised before the 
teste of the writ), for the goods are still liable to seizure for the 
Crown debt so long as they have not been actually sold. More- 
over, the statutory provision 8 Anne, c. 14, s. 1, for payment of 
one year's rent to the landlord before removal of the goods 
under an execution does not affect the Crown's right to recovery 
of any Crown debts, fines, &c. Re.v v. Cotton, Par. 112; and 
see per Patterson, J., and the other judges in Giles v. Grover, 9 
Bing. 128. Moreover, goods taken under afi./a., but not sold 
before the teste of the extent may be seized under the extent. 
Rex v. Wells and Allnutt, 16 East, 278. Nor, again, is the 
Crown affected by the statutory provision under 56 Geo. 3, 
c. 50, relative to growing crops. Rex v. Osboume, 6 Price, 94. 
And provision is made for saving the prerogative of the Crown 
by sect. 5 of the Crown Suits Act, 1865 (28 & 29 Vict. c. 104). 



I ROWH S PRIORITY. lJ.j 

But by sect. 150 of the Bankruptcy Act, 1883 (46 & 47 Vict. Priority of 
c. 52), "save as herein provided the provisions of this Act 2" w » tatel 

i* _ <i\\itVJll 

relating to the remedies against the property of a debtor, the distribution 

priorities of debts, the effect of a composition or scheme of blnfau^tey; 

arrangement, and the effect of a discharge shall bind the 

Crown." Nevertheless, the provisions of the Bankruptcy Act, but not in 

L883, which take away the priority of the Crown over other S™^ ° f 

creditors m the distribution of assets in bankruptcy, have not und . er Com- 

by virtue of the assimilating provisions contained in the Judi- isST" Act ' 

cature Act, 1875, s. 10, been incorporated into the Companies 

Act, 1862, so as to bar the prerogative right of the Crown to 

issue process and thus to obtain payment in full, in priority over 

other creditors, in respect of a debt due from a company in 

course of liquidation under the Companies Act. In re Oriental 

Bank Corporation, Ex parte The Crown, 28 Ch. D. 643. 

" Where an extent and fieri facias both come to the sheriff, Procedure 

and the extent is delivered to him before a sale of the coods wh , en e 5 tent 

4 ru j? ■ j} • i -i and 7? fa. 

under tne fieri facias, he certainly should not proceed with the both delivered 

fieri facias without being indemnified by the plaintiff on the t0 sheriff ' 

fieri facias. If the plaintiff on the fieri facias will not indemnify 

him, he should, when he is ruled to return the writ, apply to the 

Court out of which it issued to enlarge the time to make his 

return, which will, it seems, be granted on an affidavit of the 

circumstances." "West, 113. 



Disputing Crown Debt and Adverse Claims. 
If a defendant disputes a debt or there be an adverse claimant Disputing 
to the property set forth in the inquisition, the defendant or a^IaVerse 
such adverse claimant must enter an appearance for such claims™ 
purpose upon the sheriff's seizure under the inquisition being 
returned into Court ; whereupon he will be allowed to plead to 
the extent, and, on joinder of issue thereon, such dispute or 
claim is, it seems, decided in the usual manner in actions 
between subjects. As already indicated, it appears that the 
proper time for the defendant appearing and disputing the 
claim is when the inquisition is taken before the sheriff and 
jury. 

A person, claiming to be an incumbrancer on lands seized by 
the Crown under an extent and inquisition against a Crown 



150 



WRIT OF EXTENT. 



Duties of 
sheriff, &c. on 
receipt of debt 
to Crown. 



Receipt to be 
given. 



Liability of 
sheriff, &c. 
in case of 
default. 



debtor, is not entitled to notice of the holding a further inquisi- 
tion under another extent against the same person on a similar 
charge of prior date, although on the first inquisition the jury 
had returned him an incumbrancer on the estate belonging to 
the debtor. Rex v. Rawlings, Ex parte Wilkinson, 12 Price, 834. 

It is sufficient if a defendant claiming goods seized under an 
extent traverses the property being in the debtor to the Crown's 
debtor at the time of the seizure or of taking the inquisition, 
and it is not necessary to say that the property was not in the 
debtor at the time of the issuing the extent. Rex v. Lambton, 
5 Price, 428. 

An inquisition is not to be lightly set aside. Ramsbottom and 
others v. Rex, 7 Price, 570. 



Discharge of Debtor. 

By the Sheriffs Act, 1887 (50 & 51 Yict. c. 55), s. 11 sub-s. 1. 
" Where a sheriff or his officer or other person employed in 
collecting by process from any Court any debt due to the Crown 
receives from any person a sum due to the Crown he shall give 
a receipt to such person for that sum, and the sheriff at the next 
account after a sum due to the Crown has been paid to him or 
his officer, shall procure the effectual discharge of the debtor 
paying the same." 

By sub-s. 2, " An officer of a sheriff receiving any such sum 
shall account for it to the sheriff, and the sheriff shall give a 
receipt for such sum." 

By sub-s. 3, " In case of any default under this section the 
sheriff and his heirs, executors, aud administrators, shall be 
liable to pay any damages suffered by a debtor in consequence 
of such default." 



Return on Inquisition. 

Inquisition. 

County of (to wit). An inquisition indented taken at the 

house of known by the name or sign of the in the said 

county the day of in the year of the reign of our 

sovereign lady Victoria, by the grace of God of the United Kingdom 
of Great Britain and Ireland, Queen, Defender of the Faith, &c, 
before me sheriff of the said county, by virtue of her Majesty's 



RETURN ON INQUISITION. 151 

writ of extent to me directed and to this inquisition annexed on the 
oaths of A. B. [here name tltc twelve jurors] honest and lawful men 
of my bailiwick who being chosen tried and sworn on their oath say 
that C. D. in the said writ named is possessed of the goods and 
chattels following that is to say [here state the goods] as of his 
own goods and chattels and the said jurors do appraise and value 
the same at the sum of £ all which said goods and chattels I 

the said sheriff have seized and taken into her Majesty's hands. 
And the jurors aforesaid upon their oath aforesaid further say that 
the said C. D. is seized in his demesne as of fee of and in, &c, with 
the appurtenances thereto belonging situate and being at in 

the parish of in the said county and in the occupation of 

of the clear yearly value of £ in all issues beyond reprises 

which I the said sheriff have seized and taken into her Majesty's 
hands (c) : and that the said C. D. has not any other or more goods 
or chattels, debts, credits, specialties, or sums of money or any other 
or more lands or tenements in my bailiwick, to the knowledge of 
the said jurors, which can be extended appraised or seized into her 
Majesty's hands. 

In witness, &c. G. H., &c. 

Return of Sheriff to Extent against simple contract Debtor to the 

Crown. 

The within-named C. D. is not found in my bailiwick. The 
residue of the execution of this writ appears in the inquisition 
annexed. 

The answer of, &c. 

The following are, it seems, also proper returns by the Returns, 
sheriff, viz., that the Crown debtor does not possess any goods 
or lands ; that the lands, &c., are already extended ; ccpi corpus 
and the seizure of the lands ; that the Crown debtor is a clerk 
(Dalt. Sh. 234) ; that the effects are in another's possession 
{Reg. v. Austin, 10 M. & TV. 692) ; that a third party is in by- 
descent (Fitz. Ret. 112). But a return by the sheriff that he 
has delivered the debtor's lands, without stating that he has no 
other lands, is, it seems, bad. (Browml. 37.) 

It will be borne in mind that the sheriff's seizure of lands Seizure of 
under an extent is merely nominal, and that he does nothing ciebts : 
but find them through the medium of the jury, wdiich finding is nommal - 
the seizure, and also that the sheriff has no power on an extent 
to collect or levy the debts due to the Crown debtor, but only to 
seize them, and that such seizure is a seizure in law, or, in other Go0( j s &c to 
words, is merely nominal ; and further, that any goods and be sold only 
chattels, seized under an extent, are only to be sold by the tioni exponas. 

(c) Amplify form in respect of any debts, credits, &c. 



152 



WHIT OF EXTENT. 



When writs 
returnable. 



sheriff under a writ of venditioni exponas, as to which, see under 
that title. 

Writs of extent are returnable in vacation. 5 & 6 Yict. c. 86, 
s. 8. Beg. v. Benton, 17 L. J. Ex. 204 ; 2 Ex. 216. 



Delivery 
under a 
liberate. 



Delivery of Lands and Goods and Chattels. 

Delivery under a liberate is the completion of the execution. 
Per Patterson, J., in Giles v. Grover, ante, p. 148. 



Form of Liberate. 

Victoria, &c, to the sheriff of greeting : Whereas 

\recite ivrit]. And you have returned to Us that the said was 

not found in your bailiwick after Our writ was delivered to you but 
that you have taken into Our hands all the lands and tenements 
goods and chattels of the said in your bailiwick and caused 

them to be extended and appraized according to the tenor of Our 
writ aforesaid to wit messuages which are appraized at £ 

&c. [os in the return!. Therefore we command you that you deliver 
to the said all the lands and tenements goods and chattels 

aforesaid by you so taken into Our hands if he will have them by 
the extent and appraisement aforesaid to hold according to the form 
of the ordinance aforesaid until he shall be satisfied of his debt 
aforesaid. And in what manner, &c. 



Sale to be 
under writ of 
venditioni 
exponas. 



Sale. 

Provision is made by 25 Geo. 3, c. 35, for the sale of a Crown 
debtor's lands, &c, taken under an extent or diem clausit 
extremum in or towards satisfaction of the Crown debt and for 
appropriation of any surplus thereunder. And see 28 & 29 
Vict. c. 104, s. 50. But " the Court will not make an order for 
the sale of the debtor's lands, if goods sufficient to pay the debt 
have been seized under the extent." West, 225 ; see Rex v. 
Hopper, 3 Price, 40. " Under an extent against the mortgagor, 
the equity of redemption alone ought to be sold, and notice 
should be given to the mortgagee of the motion for an order of 
sale of the mortgagor's interest." West, p. 225. 

As already indicated sale of the Crown debtor's seized goods 
and chattels is effected under a writ of venditioni exponas. " The 
venditioni exj/onas orders the sheriff to sell the goods for the best 



SALE. 153 

price lie can, and at least for that price at which they were 

appraised, and to have the proceeds of the sale before the [Court] 

to be paid to [it] to the use of the Crown. If the sheriff 

cannot sell the goods for the appraised price, he should return 

that fact, and then a venditioni exponas issues for him to sell pro Venditioni 

optimo pretio without reference to the appraisement. The sheriff 2Sw»3to. 

must make a return of the whole sum produced by the sale, 

when the Court will order it to be paid over, deducting poundage, 

and he must move the Court for any extra allowance to which 

he may be entitled." lb. 220. The debtor is entitled to notice Debtor 

of the intended sale. R. v. Maria, 2 Price, 155 ; 6th ed. Atk. ^Ice o/sale 

252. 

As to the return under "Writ of Venditioni Exponas" see Return under 
under that title, ante, p. 110. venditioni 

1 \ r exponas. 

As previously intimated, the mode of compelling payment Mode of com- 
of the debts due to the Crown debtor is by suing: out a scire pe^gP a y- 

iii out of dcuts 

facias or an immediate extent against the debtors of the Crown 
debtor after the return of the inquisition. 



Fees. 



As to sheriff's fees under writ of extent, see under title 
" Sheriffs' Fees, &c," post, p. 505. 



154 



Chapter XII. 



ARREST. 



Introductory 154 

Forms of Writs 162 

Forms of Orders for Arrest and Committal - - - 168 

Forms of Warrants- ------- 170 

Execution of Writs 174 

(1.) Initial Steps 174 

(2.) Arrest 176 

Time of Arrest 176 

Mode of Arrest 177 

Place of Arrest 181 

Exemptions from Arrest - - - - - 182 
Non-exemptions from Arrest - - - _ 186 
The Sheriff's Relative Position in Case of Privilege 187 
Liability of Third Parties for obstructing Arrest - 187 

(3.) Escape and Rescue 188 

(4.) Bail 190 

(5.) Security 191 

(6.) Discharge ------- 191 

(7.) Re-arrest and Detention ----- 196 

(8.) Several Writs 196 

Return of Writs 198 

Forms of Return 201 

Incidental --------- 205 

Fees 205 



Arrest 
process. 



"Writ of 
attachment. 



Introductory. 

The subject of arrest process includes the writs of attachment, 
capias ad satisfaciendum, nc exeat regno, contumacc capiendo, and 
habeas corpus, and also orders of arrest and committal granted 
by the Court. 

The writ of attachment which is directed to the sheriff com- 
manding him to attach the body of a person is the proceeding 



INTRODUCTORY. 155 

usually employed for enforcement of obedience to the orders, 
rules, writs and other process of the Court and generally for 
punishment of contempts. It is also issued on the Crown side 
of the Court, upon application being made, for the purpose of 
compelling parties to appear to answer articles of the peace 
exhibited against them. It may also be obtained against a 
prisoner already in the sheriff's custody. Moreover, according 
to 14th ed. Chit. Arch. p. 897, if any person obstruct the exe- 
cution of the process of the Court, the Court will upon an 
affidavit of the facts grant an attachment against him, for 
example, on a sheriff's return of rescue. It has now, however, 
ceased to be resorted to in many cases to which it appears applic- 
able, as, e. g., for disobedience to orders for payment of money 
since the Debtors Act, 1869. As to judgments and orders 
enforceable by attachment, see R. S. C, 1883, Ord. XXXI. rr. 21, 
23, and Ord. XII. r. 18. 

An order for committal may be granted by the Court (a) for Committal, 
contempt of Court; (b) to enforce obedience to a judgment 
requiring any person to do any act other than the payment of 
money, or to abstain from doing anything ; (c) in bankruptcy 
under sect. 5 of the Debtors Act, 1869 ; and (d) to compel the 
sheriff to return a writ or to bring in the body of a person 
ordered to be attached or committed. 

Attachment differs from committal in this, that whereas the Difference 
former is effected by a writ issued by leave of the Court and attachment 
directed to the sheriff, the latter is directed to be made by an a nd com- 
order of the Court, and is carried out by the tipstaff, without the 
sheriff's aid. 

Referring to the Debtors Acts, by the Debtors Act, 1869 Abolition of 
(32 & 33 Vict. c. 62), s. 4- _ KSfSh 

" "With the exceptions hereinafter mentioned, no person shall, exceptions. 
after the commencement of this [1869] Act, [January 1st, 
1870,] be arrested or imprisoned for making default in pay- 
ment of a sum of money. 

" There shall be excepted from the operation of the above 
enactment : 

" (1.) Default in payment of a penalty, or sum in the nature 
of a penalty, other than a penalty in respect of any 
contract : 

" (2.) Default in payment of any sum recoverable summarily 
before a justice or justices of the peace : 

" (3.) Default by a trustee or person acting in a fiduciary 



156 ARREST. 

capacity and ordered to pay by a court of equity any 
sum in his possession or under his control : 
" (4.) Default by an attorney or solicitor in payment of costs 
when ordered to pay costs for misconduct as such, or 
in payment of a sum of money when ordered to pay 
the same in his character of an officer of the Court 
making the order : 
" (5.) Default in payment for the benefit of creditors of any 
portion of a salary or other income in respect of the 
payment of which any Court having jurisdiction in 
bankruptcy is authorized to make an order : 
" (6.) Default in payment of sums in respect of the payment 
of which orders are in this Act authorized to be made : 
Provided, first, that no person shall be imprisoned in 
any cases excepted from the operation of this section 
for a longer period than one year ; and, secondly, that 
nothing in this section shall alter the effect of any 
judgment or order of any Court for payment of money 
except as regards the arrest and imprisonment of the 
person making default in payment of such money." 
Court or By the Debtors Act, 1878 (41 & 42 Yict. c. 54), s. 1, " In 

discretion in an y case coming within the exceptions numbered 3 and 4, in 
cases within the fourth section of the Debtors Act, 1869, and in the fifth 
3 and 4 in section of the Debtors Act (Ireland), 1872, respectively, or 
c^^ 3 •*' within either of those exceptions, any Court or judge, making 
and 35 & 36 the order for payment, or having jurisdiction in the action or 
b. 5, respec- proceeding in which the order for payment is made, may inquire 
tively. } n to the case, and (subject to the provisoes contained in the said 

sections respectively) may grant or refuse, either absolutely or 
upon terms, any application for a writ of attachment, or other 
process or order of arrest or imprisonment, and any application 
to stay the operation of any such writ, process, or order, or for 
discharge from arrest or imprisonment thereunder." 
Saving of By the Debtors Act, 1869, sect. 5, " Subject to the provisions 

committal for hereinafter mentioned, and to the prescribed rules, any Court 
email debts, may commit to prison for a term not exceeding six weeks, or 
until payment of the sum due, any person who makes default in 
payment of any debt or instalment of any debt due from him in 
pursuance of any order or judgment of that or any other com- 
petent Court. 

" Provided (1) that the jurisdiction by this section given of 
committing a person to prison shall, in the case of any Court 



INTRODUCTORY. 1 07 

other than the superior Courts of Law and Equity, be exercised 
only subject to the following restrictions ; that is to say, 

" (a) be exercised only by a judge or his deputy, and by an 

order made in open Court and showing on its face the 

ground on which it is based .... 
" (b) be exercised only as respects a judgment of a superior 

Court of Law or Equity, when such judgment does 

not exceed 50/., exclusive of costs ; 
" (c) be exercised only as respects the judgment of a county 

court, by a county court judge or his deputy. 
" (2.) That such jurisdiction shall only be exercised where it is 
proved to the satisfaction of the Court that the person making 
default either has or has had since the date of the order or judg- 
ment the means to pay the sum in respect of which he has made 
default, and has refused or neglected, or refuses or neglects to 
pay the same. Persons committed under this section by a 
superior Court may be committed to the prison in which they 
would have been confined if arrested on a writ of capias ad satis- 
faciendum, and every order of committal by any superior Court 
shall, subject to the prescribed rules, be issued, obeyed, and 
executed in the like manner as such writ." 

Sub-sect, (b) of sect. 5 of the Debtors Act, 1869, is, however, 
now repealed by the Fifth Schedule of the Bankruptcy Act, 1883 
(46 & 47 Vict. c. 52), the jurisdiction of the High Court under 
that section having been transferred by that Act to the judge 
and registrars in bankruptcy. As to which see Bankruptcy Act, 
1883, s. 103, and Bankruptcy Rules, 1886, rr. 355—362. 

By the Debtors Act, 1869, sect. 6, "After the commencement Power under 
of this Act a person shall not be arrested upon mesne process in eumstances 
any action. Where the plaintiff in any action in any of her to arr est de- 
Majesty's Superior Courts of Law at Westminster, in which, if to quit Eng- 
brought before the commencement of this Act, the defendant lancl ' 
would have been liable to arrest, proves at any time before final 
judgment by evidence on oath, to the satisfaction of a judge of 
one of those Courts, that the plaintiff has good cause of action 
against the defendant to the amount of 50/. or upwards, and 
that there is probable cause for believing that the defendant is 
about to quit England unless he be apprehended, and that the 
absence of the defendant from England will materially prejudice 
the plaintiff in the prosecution of his action, such judge may in 
the prescribed manner order such defendant to be arrested and 
imprisoned for a period not exceeding six months, unless and 



158 



AEREST. 



Writ of capias 
ad satisfacien- 
dum. 



Writ of ne 
exeat regno. 



Writ of 

contumace 

capiendo. 

Writ of habeas 



until lie has sooner given the prescribed security, not exceeding 
the amount claimed in the action, that he will not go out of 
England without the leave of the Court. Where the action is 
for a penalty or sum in the nature of a penalty, other than a 
penalty in respect of any contract, it shall not be necessary to 
prove that the absence of the defendant from England will 
materially prejudice the plaintiff in the prosecution of his action, 
and the security given (instead of being that the defendant will 
not go out of England) shall be to the effect that any sum 
recovered against the defendant in the action shall be paid, or 
that the defendant shall be rendered to prison." 

With regard to the different branches of arrest process, a 
writ of capias ad satisfaciendum is a writ whereby the sheriff is 
commanded to take the body of the defendant and him safely 
keep, so that he may have his body in Court to satisfy the 
plaintiff the amount of the judgment and interest thereon at 4 
per cent. Although since the practical abolition of imprisonment 
for debt, this writ is now rarely resorted to, it still lies in the 
cases mentioned in sub-sects. 1, 3, and 4, sect. 4 of the Debtors 
Act, 1869, and in the case of Crown debts. As a general rule, 
a ca. sa. only lies in cases where a capias ad respondendum [as to 
capias ad respondendum, see under title " Outlawry," post] would 
formerly. 14th ed. Chit. Arch. pp. 889, 892 ; and see infra as to 
adoption of this writ in relation to execution against prisoners in 
custody of the sheriff. A capias ad satisfaciendum may also be 
issued in default of appearance for sentence (see C. 0. E,., 1886, 
r. 276), and on outlawry after judgment, as to which see 
under title " Outlawry," post, p. 226. 

As to writ of ne exeat regno, according to the Annual Practice, 
1894, p. 1161, and cited authorities, this writ is granted to pre- 
vent a person from leaving the realm to the damage of the 
person to whom he is indebted, until he has given security for 
the amount of the debt, and in order to obtain this writ the 
demand must be pecuniary, must be actually due, and for an 
ascertained amount. Moreover, the debt must be payable in 
praisenti, and under the present practice this writ is not to be 
issued except in cases which come within the provisions of sect. 6 
of the Debtors Act, 1869. 

A writ of contumace capiendo is for the attachment of a person 
who is contumacious and contemns the authority of the law and 
ecclesiastical jurisdiction. 

" The writ of habeas corpus lies in civil as well as in criminal 



INTRODUCTORY. 



159 



cases. In criminal cases the writ and proceedings depend on the corpus, and in 
statute 31 Car. 2, c. 2. The writ of habeas corpus, in civil cases, ^ es 
is a judicial writ commanding the sheriff, or other officer to whom 
it is directed, to have the body of the defendant, together with 
the day and cause of taking and detaining him, before the Court 
or a judge, on a day certain in term time, or immediate to answer 
or satisfy the plaintiff, or generally to do and receive what the 
Court or judge shall consider of him." 2nd ed. Watson Slier., 
p. 235. The following are the different kinds of habeas corpus 
with the purposes for which they are used, viz. : — Habeas corpus 
ad subjiciendum (the remedy for all kinds of illegal confinement) ; 
habeas corpus ad testificandum (for bringing up prisoners to give 
evidence) ; habeas corpus ad respondendum (for bringing up a 
prisoner for examination or trial on a criminal charge) ; habeas 
corpus ad deliberandum and rccipias (for the removal of a prisoner 
from one gaoler to another) ; habeas corpus to bring in the body 
of a defendant on return of ccpi corpus (and as to which latter 
process, see C. 0. R., 1886, r. 263) ; and habeas corpus ad satis- 
faciendum in connection with execution against prisoners. It 
would appear that the writ of habeas corpus to bring in the body 
of a defendant on a return of ccpi corpus is practically now the 
only writ of habeas corpus directed to the sheriff. 

With regard to the practice applicable to arrest process, see Practice 
(a) R of S. C, 1883, Ord. XLIV. {a) (which, however, it seems g£jj££. 
does not extend to Crown side proceedings) ; (b) for the practice 
applicable to writs of attachment generally, in common with other 
writs of execution, see Ord. XLII. (Ord. XLII. applies as far as 
it is applicable to all civil proceedings on the Crown side, C. O. 
E., 1886, r. 217) ; and (c) so far as applicable, R. of S. C, 1883, 
Ord. LII. (motions and other applications), and connected there- 
with, C. 0. R, 1886, r. 250. See also the following C. 0. R, 
1886, viz., rr. 217—228 (Execution) ; rr. 229—231 (Writs) ; 
rr. 235—219 {Habeas corpus); rr. 250— 260 (Motions); rr. 261— 
276 (Attachment for Contempt) ; rr. 277 — 279 (De contumace 
capiendo, excommunicato capiendo) ; rr. 280 — 292 (Articles of the 
Peace), and connected therewith, rr. 123 — 126 (Recognizances); 
rr. 83 — 98 (Appearance to Indictment, Information and Inquisi- 
tion), and as to "Time," see C. 0. R., 1886, rr. 293—298 (Time), 
andRS.C., 1883, Ord. LXIV. (Time), and Ord. LXIII. (Sittings 

(a) For tho Eules of tho Supreme Court, 1S83, and tho Crown Office 
Rules, 188G, see Chap. III. "General Practice." 



160 



ARREST. 



Practice 
applicable to 
arrest under 
Debtors Acts. 



Issuing and 
indorsing 
ca. sa. and 
ne exeat regno. 



"Writ de eontu- 
mace capiendo. 



Return. 



and Vacation). As to attachment for appearing to an informa- 
tion, this writ of attachment is to be issued at the Crown Office 
and lodged at the office of the under-sheriff of the county, &c, 
to be executed like other writs of attachment. Short & 
Mellor's Prac. of the C. 0., p. 412 ; and see that work for 
further information on this branch of arrest, including the inci- 
dental process of supersedeas on appearance. See also that work 
at pp. 410, 411, for further information as to the practice relat- 
ing to attachment against a prisoner; and at pp. 412 — 414 as to 
attachment on a return of rescue. And see the same authority, 
p. 782, as to duration of order for attachment, and at pp. 414, 
415, 416, as to setting aside a writ of attachment. 

The practice in regard to arrest under the Debtors Acts is 
chiefly governed by (1) the Debtors Act, 1869, ss. 4, 5, and 6, 
ante, p. 155 ; the Debtors Act, 1878, s. 1, ante, p. 156 ; (2) the 
General Rules under the Debtors Act, 1869, Mich. Term, 1869; 
and (3) the following Rules of the Supreme Court, viz., R. of 
S. C, 1883, Ord. XLII. r. 25 (as to date, duration, and renewal 
of order of commitment under the Debtors Act, 1869), and ib., 
Ord. LXIX. (relating to arrest of defendant under the 6th section 
of that Act) ; whilst, as to the practice in relation to arrest under 
sect. 6 of the Debtors Act, 1869, see the Annual Practice, 1894, 
p. 1161, and 14th ed. Chit. Arch. p. 1491. 

As to writ of eapias ad satisfaciendum, see, as to when it is to be 
sued out, R. of S. C, 1883, Ord. XLII. it. 19 and 22, and as to 
mode of suing out and indorsing it, ib. rr. 11 and 12, and Chit. 
Arch., 14th ed., pp. 889 et seq.; and see as to writ of ne exeat 
regno, R. of S. C, 1883, Ord. LXVI. r. 7 (j). 

The writ of contumace capiendo is chiefly governed by 5 Eliz. 
c. 23 ; 53 Geo. 3, c. 127, s. 1 ; 2 & 3 Will. 4, c. 93, ss. 1, 2, 
and 3 ; 3 & 4 Will. 4, c. 41, s. 28 ; 3 & 4 Will. 4, c. 93, s. 1 ; 
the Public Worship Regulation Act, 1874 (37 & 38 Vict. c. 85), 
s. 5; and the C. 0. R., 1886 (de contumace capiendo, excommunicato 
capiendo), rr. 277 — 279, ante, p. 44, which rules, it will be ob- 
served, also regulate the practice applicable to capias super con- 
furnace capiendo. The power to issue a writ de contumace capiendo 
under 53 Geo. 3, c. 127, for disobedience of an order of the Eccle- 
siastical Court, is not confined to cases where obedience to the 
order remains possible. Ex parte Rev. James Bell Cox, 30 Q. 13. 
D. 1 ; 57 L. J. Q. B. 95. This writ, it appears, is executed in 
the same way as an attachment, except that it is sufficient for 
the sheriff to return it with the manner of its execution. 5 Eliz. 



INTRODUCTORY. 1C1 

c. 23, s. 2. At return day of the writ the sheriff, or other 
officer to whom the writ or other process shall be directed, is not 
compellable to bring in the body ; but on return of non est 
inventus, vapid* shall issue, returnable in term time two months 
after the teste, with proclamations against the party to, within 
six days next after such proclamation, surrender as a prisoner to 
the sheriff or such other officer according to the tenor and effect 
of the first writ of excommunicato capiendo, and thereupon, after 
such proclamation had, and the expiration of such six days, the 
sheriff, or such other officer, shall make return of such writ of 
capias of all that he has done in its execution, and whether the 
party therein named have so yielded his body to prison or not, 
under forfeiture of 10/., and on such party's default such for- 
feiture shall be estreated and a fresh capias with like proclama- 
tion to surrender on forfeiture of 20/. shall issue, and so con- 
tinually until the party shall surrender. 5 Eliz. c. 23, ss. 4 — 7. 
When the party surrenders to the hands of the sheriff, or other 
officer, upon any of the said writs of capias, he shall remain in 
the custody of such sheriff, or other officer, without bail in like 
manner as under writ of excommunicato capiendo. Ib.e. 3; and 
see C. 0. E., 1886, r. 279. 

A writ de con tu mace capiendo is bad, and will be set aside, if it be 
directed to the sheriff of one county, and it appear by the writ 
that the defendant is resident in another. Ilex v. Rickctts, 6 
A. & E. 537; Rex v. Hewitt, ib. 547. According to Patteson, J., 
in the case of Rex v. Hewitt, the writ can go only to the sheriff 
of the county of which the defendant is described to be. On his 
returning " non est inventus," a capias super contumacc may issue 
into any other county. 

The practice applicable to habeas corpus is, as already intimated, Practice 
chiefly regulated by 31 Car. II. c. 2. See also (1) as to habeas JJ*Sof 
corpus ad subjiciendum, 10 Car. I. c. 10, s. 8, 56 Geo. III. c. 100, habeas corpus. 
ss. 1, 2, 3, 4, and 6, 26 Vict. c. 20, 39 & 40 Vict. c. 36, ss. 243 
and 244, The Extradition Act, 1870 (33 & 34 Vict. c. 52), s. 11 
and C. O. R, 1886, r. 35 (certiorari), it. 235 — 245 (habeas corpus 
ad subjiciendum), rr. 246 — 249 (other writs of habeas corpus), 
rr. 250 — 254 (motions), and r. 305 (applications at chambers) ; 
(2) as to habeas corpus ad testificandum, 44 Geo. III. c. 102, 
52 & 53 Vict. c. 49, s. 18 (2), and C. O. 11, 1886, rr. 246, 247 
(other writs of habeas corpus) ; (3) as to habeas corpus ad respon- 
dendum, 43 Geo. III. c. 140, and C. O. 11., 1886, rr. 246—249 
(other writs of habeas corpus) ; and (4) as to habeas corpus ad 

M- M 



162 ARREST. 

deliberandum and recipias, see in particular sect. 9 of 31 Car. II. 
c. 2 (as partially qualified by The Prisons Act, 1865, 28 & 29 
Vict. c. 126, ss. 63 and 64, and The Prisons Act, 1877, 40 & 41 
Yict. c. 21, s. 28), 38 Geo. III. c. 52, s. 3, and C. 0. P., 1886, 
rr. 246 — 248 (other writs of habeas corpus) ; and (5) as to the 
practice relating to the writ of habeas corpus ad satisfaciendum, 
see 14th ed. Chit, Arch. pp. 1194 et seq. 

Writs of habeas corpus, granted by a judge, are now indorsed 
with his name instead of his signature as was formerly required. 



Forms of Writs. 

1. Writ of Attachment (Form No. 12, App. H., E. S. C. 1883). 

18 . \Here put the letter and numbcr~\. 
18 . B. No. . 
In the High Court of Justice. 
Division. 

Between A. B. - - - - - - Plaintiff. 

and 
CD. Defendant. 

Victoria, by the grace of God, &c., To the sheriff of , 

greeting : 

"We command you to attach C. D. so as to have him before Us in 
the division of Our High Court of Justice wheresoever the 

said court shall then be, there to answer to Us, as well touching a 
contempt which he it is alleged hath committed against Us, as also 
such other matters as shall be then and there laid to his charge, 
and further to perform and abide such order as Our said Court 
shall make in this behalf, and hereof fail not, and bring this writ 
with you. 

Witness, &c. 



2. Writ of Attachment (Form No. 190, C. 0. E. 1886). 

Victoria, by the grace of God, &c. To the sheriff of , 

greeting : 

We command you to attach C. D., so that you may have him 
before Us in the Queen's Bench Division of Our High Court of 
Justice, at the Eoyal Courts of Justice, London, on the day of 

189 , to answer to Us for certain trespasses and contempts 
brought against him in Our said Court : and have you then there 
this writ. 

Witness, &c. 



FORMS OF WRITS. 

3. Writ of Attachment to answer an Information (Form No. 5 1. 
C. 0. E. 1886). 

Victoria, by the grace of God, &c, To the sheriff of , 

greeting : 

"We command you to attach A. B., if he shall be found in your 
bailiwick, and him safely keep, so that you may have his body, 
before Us in the Queen's Bench Division of Our High Court of 
Justice, at the Eoyal Courts of Justice, London, on the day 

of 189 , to answer to Us for certain misdemeanours whereof 

he is impeached, and that you have then there this writ. 

Witness, &c. 

4. Writ of Attachment to answer Information Quo Warranto (Form 

No. 55, C. 0. E. 1886). 

\_Same as JYo. 3.] 

[Except that instead of the words " to answer to Us for certain 
misdemeanours, tifc." say : — ] to answer to Us upon an information 
in the nature of a Quo Warranto exhibited against him by Frederick 
Cockburn, Esquire, Our coroner and attorney in the Queen's Bench 
Division of Our High Court of Justice, to show by what authority 
he claims to be, &c. 

This writ was issued by, &c. 

5. Attachment on the Return of a Rescue (Form No. CCXLY. from 

Short and Mellor's Practice of the C. 0.). 

Victoria, &c. To the sheriff of greeting : 

"We command you that you do not forbear, &c. but that you attach 
A. B., if he shall be found in your bailiwick, and him safely keep 
so that you may have him before Us in the Queen's Bench Division 
of Our High Court of Justice at the Eoyal Courts of Justice, London, 
on the day of to answer to Us for certain trespasses, 

contempts, and rescues whereof by your return (or the return of 
sheriff of the county of ) he is impeached. And that 

you have there this writ. 
Witness, &c. 

6. Writ of Attachment for the Peace (Form No. 196, C. 0. E. 1886). 

Victoria, by the grace of God, &c, to the sheriff of , 

greeting ; Because A. B. was afraid that he might be in many ways 
disquieted and made grievous concerning his life and maiming 
of his limbs by C. D., as the said A. B. has made oatli before Us; 
therefore We command you that you attach the said C. D. so that 
you may have him before Us on the day of to find then 

before Us sufficient security for the keeping of Our peace by him 
towards l*s and all Our people, and especially towards the said 
A. r>.. under a certain penalty then to be imposed on him by Os, 
and when you have so attached the said C. D. you are to discharge 
him on bail until the said day by sufficient manucaptors, who shall 
be willing to bail him under a certain penalty reasonably to be 



163 



164 ARREST. 

imposed upon thern by you, as well for the keeping his day as for 
the keeping Our peace by him in the meantime. Witness, &c. 

(To be indorsed) 

This writ is granted on motion in open Court and the cause 
thereon recorded according to the form of the statute in such 
case made and provided. 
This writ was issued by, &c. 



7. Writ of Capias ad Satisfaciendum. 

18 . [Here put letter and number. .] 
In the High Court of Justice. 
Division. 
Between A. B. - - - - - Plaintiff. 

and 
CD.----- Defendant. 

Victoria, by the grace of Cod, of the United Kingdom of Great 
Britain and Ireland Queen, Defender of the Faith. 

To the sheriff of greeting : 

We command you that you [omit not by reason of any liberty of 
your county, but that you enter the same and] (b) take C. D., if he 
shall be found in your bailiwick, and him safely keep, so that you 
may have his body before Us in the Queen's Bench Division of Our 
High Court of Justice immediately after the execution hereof, to 
satisfy A. B. £ , together with interest thereon at the rate of 

£ per centum per annum from the day of 18 

\_the day on which judgment was entered] which said sum of money 
and interest were lately before Us in Our High Court of Justice in 
a certain action wherein A. B. is plaintiff and C. D. is defendant, 
by a judgment of Our said Court bearing date the day 

of , adjudged to be paid by the said C. D. to A. B. [following 

the terms of the judgment] and have you there then this writ. 
Witness {name of Lord Chancellor), Lord High Chancellor of 

Great Britain, the day of in the year of our Lord 

(To be indorsed) 

Levy the whole [or 'levy £ '] and interest thereon [or 

' on £ '] at £4 per cent, from the day of , 18 , 

and £ for this writ and warrant thereon, besides sheriff's and 

officers' fees, and other expenses of the execution. 

This writ was issued by X. Y. of , solicitor, [or 'agent 

for X. Y. of , solicitor 'J for the within-named plaintiff [or 

if the writ was issued in person, say, 'issued by A. B. the plaintiff, 



(I)) The non-omiitas clause is not inserted in the form of writ given in 
the App. to 11. of S. C. 1883. Where there is such a clause, "no warrant 
to the bailiff of a liberty is required where it is to be executed within the 
liberty, for the sheriff and not the bailiff must execute a writ containing 
such a clause." 6th ed. Atk. 226, and cited authority. 



FORMS OF WRITS. 165 

in person, who resides at ,' mentioning the city, town, or parish, 

and also the name of the hamlet, street and number of the house of the 
plaintiff, if such there, be~\. 

The defendant is a , and his place of abode is No. , 

street. 

8. Writ of Capias ad Satisfaciendum after Judgment (Form No. 144, 
C. 0. E. 188G). 

Victoria, by the grace of God, &c, to the sheriff of , greeting : 

We command yon that you take A. B., if he shall be found in your 
bailiwick, and him safely keep, so that you may have his body 
before Us in the Queen's Bench Division of Our Iligh Court of 
Justice, on tho day of , 18 , to satisfy Us concerning 

his redemption by reason of certain , whereof he is indicted, 

and thereupon by a jury of the country taken between Us and the 
said A. B. [or by his own default or confession] he stands convicted, 
as in Our said Court before Us it appears upon record. And have 
you then there this writ. "Witness, &c. 

9. Writ of Capias to answer to Indictment, or Information 
(Form No. 57, C. 0. E. 188G). 

Victoria by the grace of God, &c, to the sheriff of , greeting : 

"Wo command you that you take A. B., if he shall be found in 
your bailiwick, and him safely keep, so that you may have his body 
before Us in the Queen's Bench Division of Our High Court of 
Justice at the Royal Courts of Justice, London, on the day 

of 189 , to answer to Us for certain misdemeanors [or felonies] 

whereof he is indicted [or impeached]. And have you then there 
this writ. 

"Witness, &c. 

10. Writ of Xc Exeat Regno. 

Victoria, &c. ; Because We are given to understand that pur- 

poses to go over towards foreign parts (to prosecute there many things 
prejudicial and hurtful to Us and many of Our people): We willing 
to resist his malice in this behalf command you firmly enjoining 
that you cause the aforesaid to come corporally before you 

and by what means you can compel him to find sufficient manu- 
captors who will bail him under a certain penalty to be reasonably 
imposed on them by you, for which you will answer to Us. In 
witness, &c. 

Or thus — 

And him tho said to find sufficient security under tho 

penalty of £ to be paid to Our use or any one of them in the 

penalty of, &c. that he go not towards foreign parts without Our 
special licence, nor presume to prosecute or cause to be attempted 
to be prosecuted anything whatsoever there which may be aide to pre- 
vail to the contempt of Us or to the prejudice or damage of Our people, 
nor send any person or persons there for that purpose. And if he shall 



166 ARREST. 

refuse to do this before you that then you do commit him the said 
to Our next gaol to be kept safely in the same until he will 
freely do so ; and when you shall have so taken that security there- 
upon without delay distinctly and openly inform Us thereof, or 
certify in Our Chancery under your seal remitting to Us this writ, 
&c. Witness, &c. 

11. Writ of Contumace Capiendo (Form No. 194, C. 0. E. 1886). 

Victoria, by the grace of God, &c, to the sheriff of , greeting: 

Whereas, A. B. has signified to Us, &c, that C. D., of, &c. in your 
county of is manifestly contumacious and contemns the juris- 

diction and authority of the law and jurisdiction ecclesiastical of 
[here state the contempt charged'], nor will C. D. submit to 
the ecclesiastical jurisdiction, but forasmuch as the royal power 
ought not to be wanting to enforce such jurisdiction, We command 
you that you attach the said C. D. by his body until he shall have 
made satisfaction for the said contempt, and how you shall execute 
this Our precept notify unto Us on the day of at Our 

Royal Courts of Justice, London. And in nowise omit this and 
have you there then this writ. 

Witness Ourself at Westminster the day of in the 

year of Our reign. 

(Signed) Esher, 

(Master of the Eolls.) 

{To be indorsed after delivery into Court.) 

This writ is allowed and delivered of record before our Lady the 

Queen in the Queen's Bench Division of Her Majesty's High Court 

of Justice, at the Royal Courts of Justice, London, the day of 

,18 , according to the form of the statute in such case made 

and provided. 

In Court. 

12. Writ of Capias cum Proclamations super Contumace Capiendo 

(Form No. 195 C. 0. E. 1886). 

Victoria, by the grace of God, &c, to the sheriff of greeting : 

Whereas [recite the lorit of conhimace capiendo throughout in the 
past tense]. 

And whereas, in obedience to the said writ, you returned to Us 
that [recite the return which should state that (the defendant) cannot 
be found in the sheriff's bailiwick], as in the Queen's Bench Division 
of Our High Court of Justice before Us it appears upon record. 
Therefore, according to the form of the statutes in such case made 
and provided, We command you that you take the said , if 

he shall be found in your bailiwick, and him safely keep, so that he 
may make satisfaction for the said contempt, and if the said 
shall not be found in your bailiwick, that then you cause open pro- 
clamation to be made ten daj r s at least before the return of this writ 
in your full County Court, or else at tho general assizes and gaol 
delivery to be holden within your said county or at a quarter ses- 
sions, to be holden before the Justices of the peace within your said 



FORMS OF WRITS. 167 

county, according to tho form of the statutes that the said 
shall, within six days next after such proclamation, yield his body 
to Our prison of your said county, there to remain as a prisoner 
according to the tenor and effect of Our said first writ to you [_or to 
the then sheriff] before directed, under pain of forfeiture of ten 
pounds (c) of lawful money of Great Britain, and how you shall exe- 
cute this Our writ make known to Us at the Royal Courts of Justice, 
London, on the day of next, that "We may cause further 

to be done thereon what of right and according to the form of the 
statutes in such case made and provided, shall be meet to be done. 

Witness, John Duke, Baron Coleridge, at the Royal Courts of 
Justice, London, the day of in the year of Our Lord one 

thousand, &c. 



13. Writ of Capias cum Proclamations into a Foreign County 
(Form No. 60, C. 0. R. 1886). 

Victoria, by the grace of God, &c, to the sheriff of greeting: 

"We command you that you take A. B., if he shall be found in 
your bailiwick, and him safely keep so that you may have his body 
before Us in the Queen's Bench Division of Our High Court of 
Justice, at the Roj^al Courts of Justice, London, on [three or four 
months between teste and return, as the case may be~] the day of 

next, to answer to Us for certain [misdemeanors] whereof he is 
indicted ; and if you cannot find the said A. B. in your bailiwick, that 
then you make public proclamation in two County Courts of your 
county before the return of this writ, that he be before Us at the 
aforesaid day to answer to Us concerning the premises according to 
the Rule in that case made and provided, and have you then there 
this writ. 

Witness, &c. 

This writ was issued by, &c. 



14. Writ of Habeas Corpus on Return of Cepi Corpus 
(Form No. 192, C. 0. R, 1886). 

Victoria, by the grace of God, &c, to the shei-iff of greeting: 

We command you that you have the body of before Us in 

the Queen's Bench Division of Our High Court of Justice, at the 
Royal Courts of Justice, London, forthwith after the receipt of this 
Our writ, to answer to Us for certain trespasses and contempts 
brought against him in Our said Court before Us and whereof by 
your return sent to Us you have charged yourself. And have you 
then there this writ. 

Witness, &c. 



(c) Tho second capias twenty pounds, and the like sum in every subse- 
quent writ. 



168 ARREST. 

15. Writ of Habeas Corpus to bring up Prisoner to be bailed 
(Form No. 69, C. 0. R, 1886). 

Victoria, by the grace of God, &c, to , greeting : 

We command you that you have in the Queen's Bench Division 
of Our High Court of Justice \_or before a Judge in Chambers], at 
the Royal Courts of Justice, London, immediately after the receipt 
of this Our writ, the body of A. B. being taken and detained, 
under your custody as is said, together with the day and cause of 
his being taken and detained, by whatsoever name he may be called, 
to undergo and receive all and singular such matters and things as 
Our said Court [or Judge] shall then and there consider of concern- 
ing him in this behalf ; and have you there then this Our writ. 

Witness, &c. 

(To be indorsed.) 
By Order of Court [or of Mr. Justice ]. 

This writ was issued by, &c. 

16. Writ of Habeas Corpus ad Subjiciendum (Form No. 176, 
C. 0. R, 1886). 

[Exactly similar to above form 15 with the addition of the word 
(t therein " after the word " called " in the 6th line of above form.] 



Forms of Orders for Arrest and Committal. 

1. Order for Arrest (Capias) under Debtors Act (Form No. 31, 
App. K., R, of S. C. 1883). 

18 . [Here put letter and number. ,] 
In the High Court of Justice, 
Division. 

Between - Plaintiff, 

and 

Defendant. 

Upon hearing and upon reading the affidavit of , filed 

the day of , 18 , and 

It is ordered that the defendant be arrested and imprisoned 

for the term of from the date of his arrest, including the day 

of such date, unless and until he shall sooner dejjosit in Court 
the sum of £ , or give to the plaintiff a bond executed by him 

and two sufficient sureties in the penalty of £ , or some other 

security satisfactory to the plaintiff * that he the defendant will not 
go out of England without the leave of the Court. 

And it is further ordered that the sheriff of do within one 

calendar month from the date thereof, including the day of such 
date, and not afterwards, take the defendant for the purpose afore- 
said, if he shall be found in tho said sheriff's bailiwick. 

Dated the day of ,18 . 



FORMS OF ORDERS FOR ARREST AND COMMITTAL. 169 

The under-mentioned extract from Chitty's Forms p. 762 will, 
moreover, be of service : — 

[ The following indorsements must be made on the order.~\ This 
order was issued by of , solicitor for the plaintiff 

within named [or if the order was sued out by a .solicitor as agent for 
another solicitor in the country, say, "This order was issued by 
[the agent's name) of , as agent for of solicitor for the 

plaintilf within named"], [or, if the writ teas sued out by the 

plaintiff in person, say "This order was issued in person by the 
plaintilf [or, if more titan one, name them all accordingly) within 
named, who resides at" [mention the city, town or parish, and also 
the name of the hamlet, street, and number of the house of the plaintiff's 
residence, if any such there be)~\. (See 1 Pr. 13th ed. 617 n.) 

There is also another indorsement to be made by the officer executing 
the writ, of the day of executing it. But this of course cannot be made 
until after the arrest. It runs as follows : "The within named 
was arrested by me by virtue of this order on the day 

of 



2. Order when the Action is for a Penalty or Sum in the Nature of a 
Penalty irrespective of any Contract. 

[Proceed as in preceding form to the asterisk *, and then thus^\ : — 
That any sum recovered against him in this action shall be paid, or 
that he shall be rendered to prison. 

And [$v. as in preceding form~\. 



3. Order for Committal of Judgment Debtor (d) (Form No. 48 App. K., 
E. of S. C. 1883). 

18 . [Here put the letter and number). 
In the iTigh Court of Justice, 
Division. 
Judge in Chambers. 

Between - - - Judgment creditor, 

and 

- Judgment debtor. 

Upox hearing and upon reading the affidavit of filed 

the day of 18 , and , 

It is ordered that the above-named judgment debtor be, for 
default in payment of the debt hereinafter mentioned, committed to 
prison for the term of from the date of bis arrest, including 

the day of such date, or until he shall pay I' , being the 

amount due from him in pursuance of a judgment [or order] of the 
High Court of Justice bearing date the day of ,18 , 

together with interest thereon at £4 per cent, per annum from the 



((/) Forma Nbs. :J and I are no longer in use in the <j. 1'.. Chambers, 
proceedings relating to them having been transferred to the Bankru 
Court. See ante, p. 137. 



170 ARREST. 

aforesaid date, and £1 65. Sd. for costs of this order, and sheriff's 
fees for the execution thereof. 

And it is further ordered that the sheriff take the said debtor for 
the purpose aforesaid if he is found within his bailiwick. 

And it is ordered that the costs of this application be 

Dated the day of 18 . 

4. Order for Committal of Judgment Debtor on Non-payment of 
Instalment (Form No. 49 App. K., E. of S. C. 1883). 

[Heading as in preceding form.'] 

Upon hearing and upon reading- the affidavit of filed 

the day of 18 , and , 

It is ordered that the above-named judgment debtor be for 
default in payment of £ , being the amount of the \_frst] 

instalment of the judgment debt of £ , in this action directed 

to be paid pursuant to the order of bearing date the 

day of 18 , committed to prison for the term of from 

the date of his arrest, including the day of such date, or until he 
shall pay the said instalment together with 13s. Ad. the costs of this 
order, and sheriff's fees for the execution thereof. And it is further 
ordered that the sheriff of take the said debtor for the purpose 

aforesaid if he is found in his bailiwick. 

And it is ordered that the costs of this application be 

Dated the day of 18. 



Forms of Warrants. 

1. Warrant on Attachment. 

County of to wit : Sheriff, of the county aforesaid 

to the keeper of the gaol of the said county and also to and 

my bailiffs, greeting : By virtue of a writ of our Sovereign 
Lady the Queen to me directed, I command you and every of you 
jointly and severally that you omit not by reason of any liberty in 
my bailiwick, but that you or one of 3-ou enter the same and attach 
if he shall be found in my bailiwick and him safely keep, so 
that I may have his body before her Majesty's High Court of 
Justice Division on the day of to answer her 

Majesty concerning divers trespasses, contempts and offences by 
him done and committed. Hereof fail not as you will answer at 
your peril. Given under the seal of my office this day of 

in the year of our Lord one thousand eight hundred and ninety 

By the same sheriff 

(Seal of Office.) 

2. Warrant on Attachment for the Peace. 
to wit : Esquire, sheriff of the county of afore- 



said to and my bailiffs greeting : By virtue of the 

Queen's writ of attachment for the peace to mo directed, I command 



FORMS OF WARRANT. 171 

each and every of you jointly and severally that you omit not by 
reason of any liberty in my bailiwick but that you enter the same 
and take if he shall be found in my bailiwick and him safely 

keep until he shall have given me bail as in the said writ is com- 
manded. And in what manner you shall have executed this warrant 
certify to me immediately after the execution thereof. Given under 
the seal of my office this day of 18. 

By the sheriff 

(Seal of Office.) 



3. Warrant on a Ca. Sa. 

to wit : S. S., Esquire, sheriff of the said county, [to the 

keeper of the gaol of the said county and] to B. B. my bailiff, 
greeting : — By virtue of Her Majesty's writ to me directed and de- 
livered, I command you, that 3 - ou [omit not by reason of any liberty 
in my county, but that you enter the same and] take C. D. where- 
soever he may be found in my bailiwick, and him safely keep, so 
that I may have his body before our lady the Queen in the 
Division of Her Majesty's High Court of Justice, immediately after 
the execution hereof [or "on ," if the writ be returnable on a 

particular day], to satisfy A. B. of £ , which the said C. D. in 

the Queen's Bench Division of Her Majesty's said High Court of 
Justice was ordered to pay to the said A. B. together with interest 
[ $•<?. as in the ca. sa.~] and have you this warrant, and fail not at 
your peril. Given under the seal of my office, the day 

of , A.D. 

By the sheriff 

(Seal of Office.) 

Mr. X. Y., solicitor for the plaintiff. 

The writ issued the day of 

Take no bail whatever. 



4. Warrant on Xc Exeat Regno. 

County of to wit. sheriff of the county aforesaid, to 

the keeper of the gaol of the said county and also to my bailiffs, 
greeting : By virtue of a writ of our sovereign lady the Queen to 
me directed, bearing date the Jay of one thousand eight 

hundred and ninety I command you, and each of you, jointly 

and severally that you one or any of you do without delay arresl the 
body of and keep him safe, until he gives sufficient bail in- 

security in the sum of that he will not go or attempt to go 

into parts beyond the seas without leave of the Division of 

the High Court of Justice of our said lady the Queen. And in 
case he refuse to give such bail or security, then I further command 
you, each and every of you, that you commit him to the prison of 
my county, there to be kept in safe custody until he shall do it of 
his own accord, and when he shall have given such security, you 
are forthwith to make the same known to me so that I may make 



172 



ARREST. 

and return a certificate thereof to tlie said Court of our said lady 
the Queen distinctly and plainly under my seal of office. 

Hereof fail not, as you will answer at your peril. Given under 
the seal of my office, this day of in the year of our 

Lord one thousand eight hundred and 

Writ indorsed by the Lord Chancellor of Great Britain at the 
instance of 

Take security in the sum of £ 

By the sheriff 

(Seal of Office.) 



5. Warrant on Writ of Contumace Capiendo. 

— to wit Esquire, sheriff of the said county to and 

my bailiffs greeting: By virtue of Her Majesty's writ bearing date 
the day of in the year of Our Lord one thousand eight 

hundred and ninety to me directed and delivered I do hereby 

command you and each of you jointly and severally that you 
take of wheresoever he may be found in my bailiwick 

and him safely keep so that he may make satisfaction for the con- 
tempt mentioned in the said writ as in such writ I am commanded. 
And in what manner you shall have executed this warrant certify to 
me immediately after the execution hereof. 

Given under the seal of my office this day of 189 . 

By the sheriff 
(Seal of Office.) 



6. Warrant on Writ of Capias cum Proclamations super Contumace 

Capiendo. 

[Adopt above form icith regard to capias portion of the tvrit, and as 
to proclamations see under title " Outlawry," post, p. 227.] 



7. Warrant to Gaoler and Bailiff to convey Prisoner on a Habeas 

Corpus. 

— to wit Esquire, sheriff of the said county of to 

keeper of the gaol of in this county, and to my 

bailiff (for this time specially appointed) : By virtue of Her 
Majesty's writ to me directed I command you that you safely and 
securely convey the body of immediately after the receipt of 

this warrant to and before [name of judge by whom writ signed'] in 
the Queen's Bench Division of Her Majesty's High Court of Justice 
at the Royal Courts of Justice, London, to do, submit, and receive 
what the said Court shall then and there consider of him in this 
behalf. Hereof fail not at your peril. Given under my hand and 
seal of office this day of 18 . 

By the sheriff 

(Seal of Office.) 



FORMS OF WARRANT. 173 



8. Warrant to Arrest. 



\_the county, 8fc. to the sheriff of which the writ is directed] 
Esquire, sheriff of the county aforesaid, to and 

my bailiffs greeting: By virtue of an order of the Honourable 
Sir Knight, one of the Justices of the High Court of Justice, 

dated the day of to me directed, I command you, and 

each and every of you jointly and severally, that you or any of you 
omit not by reason of any liberty of my bailiwick, but that you 
enter the same and within one calendar month from the said 
day of [date of the order'] inclusive of that day, and not after- 

wards, take if he shall be found in my bailiwick and arrest 

and imprison him for [as in the order] months from the date 

of the arrest, including the day of such date, unless and until he 
shall sooner deposit in Court the sum of £ or give to a 

bond executed by him and two sufficient securities in the penalty 
of £ or some other security satisfactory to the said that 

he will not go out of England without leave of the Court [or "that 
any sum recovered against him in an action at the suit of the said 
1878, B. No. shall be paid, or that he shall be rendered 
to prison," or as the case may be. All this should follow closely the 
terms of the order.] And I do further command you, or any of 
you, that immediately after the execution hereof you do certify to 
me the manner in which you shall have executed the same, and the 
day of the execution hereof, so that I may within two days after 
the arrest of the said indorse on the said order the true date 

of such arrest, or that, if the same shall remain unexecuted, then 
that you do so return this my warrant at the expiration of one 
calendar month from the date of the said writ or sooner if thereto 
required. Dated 

{Seal of Office.) 

Writ issued by of 

Plaintiff's solicitor [or " by the said in person"]. 

Before you arrest the defendant, beware he is not privileged, as 
an ambassador, or servant to an ambassador, or otherwise privileged 
or protected. 

(Indorsement on order of execution thereof.) 

was arrested by me on the within order on the 

day of 18 . 

[If there be more than one defendant make such an indorsement for 
each.] 



9. Sheriff's Warrant on Committed Order. 



to wit. 



In the High Court of 
Justice. 

1 >i\ ision. 
A. B. 
Judgment Creditor 
and 

C. 1). 
Judgment I >ebtor. 



S. S., sheriff of the county aforesaid, to 
B. B. and S. B., my bailiffs, and also to 
the Governor of Her Majesty's gaol [at 
j and bis deputies, greeting : 

By virtue of an order of the Honourable 
Mr. Justice dated day of 

18 I command you and every of you my 
said bailiffs that yon or one of yon take 



the said judgment debtor, if he shall be found within my bailiwick, 



174 



ARREST. 



for the purpose that he be, for default in payment of [as in 

the order'] committed to prison for the term of [six] weeks from the 
date of his arrest, including 1 the day of such date, or until he shall 
pay \_as in the order] being the amount of the first instalment 

due to the said A. B. upon an order made by bearing date the 

day of 18 together with £ for the costs of the said 
order and sheriff's fees for the execution thereof. \_Let all this agree 
with the order.] 

And I also command the governor of 
receive and safely keep the body of the 
accordingly. 

Given under the seal of my office, this 
thousand eight hundred and 



and his deputies to 
said judgment debtor 



day of 



one 



The order 
the order]. 



is indorsed as follows 



By the same Sheriff. 
-\here copy the indorsement on 



Execution of Writs. 

Preliminary. With due regard to the objects of and the directions contained 
in the various forms of arrest process, and to the above-mentioned 
practice regulating such process, the general proceedings in 
relation to its execution fall under the following heads ; and in 
this connection, the law in relation to any one branch of such 
process, e.g., that of ca. sa., may be taken to be in principle 
more or less applicable to the other branches. 



Delivery of 
writs to 
sheriff. 



As to infor- 
mation given 
to sheriff. 



Sheriff bound 
to execute 
process if 
defendant 
described by 
one of two 
known names ; 



1. Initial Steps. 

With due regard to the above-mentioned practice regulating 
the different branches of arrest process, writs of attachment and 
other process of arrest directed to the sheriff should be delivered 
to him in the usual way, as to which, see under "Writ of Fieri 
Facias" ante, pp. 53, 57. 

A party who issues a ca. sa. is not under any legal duty to 
give the sheriff such information as will enable him to recognize 
and identify the party to be arrested. Dyke v. Duke, 7 L. J. 
(N. S.) C. P. 75; 4 Bing. N. C. 197; 5 Scott, 536. But a 
solicitor of a party issuing a writ of ca. sa. is liable to an action 
by the sheriff for any false representation as to the person to 
be arrested. Evans v. Collins, 5 Q. B. 805 ; 12 L. J. Q. B. 339. 

The sheriff, it seems, is bound to execute a writ when the 
defendant is described in the order to arrest by either of two 
names by which he is known. Brunskitt v. Robertson, 9 A. & E. 
840. lie is not, however, bound to execute the writ, or, if he 



EXECUTION OF WRITS. 175 

has executed, to detain a defendant who is described in the but not to 

order to arrest by a wrong name ; Morgan* v. Bridges, 1 B. & detain if by 

Aid. 647 ; but if the defendant be described by a Avrong name wrong name. 

in final process and it corresponds with the judgment, the sheriff 

is bound to execute it. Reeves v. Slater, 7 B. & C. 486. And 

see as to misnomer, Kelly v. Lawrence, 33 L. J. Exch. 197 ; 3 

H. & C. 1 ; 10 L. T. 195 ; Rex v. Sheriff of Middlesex, 2 Chit. 

357; Crawford v. Satchwell, 2 Str. 1218; 6th ed. Atk. Sheriff, 

p. 620. And as to arresting by a wrong name, see Finch v. 

Cocken, 3 D. P. C. 678 ; 2 C. M. & P. 196 ; 1 Gale, 130 ; 

Shadgctt v. Clipson, 8 East, 328 ; Brunskill v. Robertson, 9 A. 

& E. 840 ; and Fisher v. Magnay, 1 D. & L. 40 ; 12 L. J. C. P. 

276 ; as also Be Mesnil v. Dakin, L. P. 3 Q. B. 18 ; 37 L. J. 

Q. B. 42. See also on this subject, Moneg v. Leae/i, 1 W. Bl. 

563 ; 3 Burr. 1742. 

As to the sheriff's initial steps in executing a writ of execution, Sheriff's 
see under titles " Writ of Fieri Facias," ante, p. 57, and "Appoint- iuitial steps> 
ment of Sheriff and his Officers (Bailiffs, Franchises, &c.)," ante, 
pp. 12, 18. Supplementing the information so given under title 
"Writ of Fieri Facias," a mistake in the warrant will not in- Invalidation 
validate the arrest. Williams v. Lewis, 1 Chit. 611. A sheriff's of the arrest - 
warrant on a capias filled up by a solicitor after the signing and 
sealing of the writ is bad. Burslem v. Fern, 2 Wils. 47. Indeed 
in Hall v. Roche, 8 T. P. 187, a bailiff bond was ordered to be 
delivered up where the defendant was arrested before the officer 
had any warrant and before the writ was delivered to the sheriff ; 
and see Bell v. Jacobs, 1 M. & P. 309 ; 4 Bing. 523. An arrest 
under a ca. w. by a bailiff to whom the warrant is not ad- 
dressed, in the absence of the officer to whom it is addressed, 
even though such officer has engaged him to assist him in his 
absence, he himself being at a considerable distance at the time 
of the arrest, is irregular, and the defendant will be discharged 
out of custody. Rhodes v. Hall, 26 L. J. Ex. 265. A warrant 
to four jointly and not severally will not authorize an arrest by 
one. Bogd v. Dnrand, 2 Taunt. 161. A sheriff's officer cannot 
justify an arrest made without a warrant, by procuring a 
warrant previously issued to another sheriff's officer, but not 
executed, to be delivered to himself with his name inserted 
after the arrest. Collins v. F< wens, 2 V. & D. 439 ; 10 A. & E. 
570. But a party who has been arretted under colom- of a 
ca. sa. and discharged b}' a judge's order on the ground that 
the sheriff's officer had no warrant at the time of the takino- 

o > 



176 



ARREST. 



Force to be 
provided by 
sheriff. 



Arrest and 
committal to 
prison of 
registers. 



may be arrested again under the same writ. Plomcr v. Bull, 

5 A. & E. 823. 

A sheriff was bound, in executing a capias under the repealed 
provision of 1 & 2 Yict. c. 110, s. 3 [and it is conceived on 
principle he is still so bound in all cases of arrest], to provide 
such a force as would enable him to effect a caption in spite of 
any resistance he had reason to anticipate ; Howden v. Standi*//, 

6 D. & L. 312 ; G C. B. 504 ; 18 L. J. C. P. 33 ; and even the 
assistance of the military, if necessary to the execution of his 
warrant, and to prevent personal danger to himself and his 
ordinary assistants from a mob assembled in extraordinary 
numbers and with a show of force to overawe the civil power. 
Burdett v. Colman, 14 East, 188. On this subject, Watson on 
Sheriff (2nd ed.) says, at pp. 236, 237, "A sheriff should take 
force sufficient to prevent the arrested party from being rescued, 
as a rescue would make the sheriff liable to an action for an 
escape." And by the Sheriffs Act, 1887 (50 & 51 Yict. c. 55), 
s. 8, sub-s. 2, " If a sheriff find any resistance in the execution 
of a writ, he shall take with him the power of the county, and 
shall go in proper person to do execution, and may arrest the 
resisters and commit them to prison, and every such resister 
shall be guilty of a misdemeanor." 



Illegality of 
service of writ 
on Sunday. 



2. Arrest. 

Time of Arrest. 

As to the illegality of service of any writ of execution or other 
process upon the Lord's Day, see under title " Writ of Fieri 
Facias," ante, p. 62. Where a party was arrested on a Sunday 
and detained until the next morning, and then arrested on process 
issued out of the Exchequer, it was held that the arrest was void 
and could not be made good even by a subsequent consent. 
Lyford v. Tyrrel, 1 Anst. 85. Nor can one who is convicted on 
a penal statute be apprehended on a Sunday for non-payment of 
Exception as the penalty. 11. v. Myers, 1 T. R. 265. But a party may be 
taken on an escape warrant on Sunday. Barker v. Moore, 2 
Salk. 626; and see under " Escape " and " Rescue, "post, p. 189. 
Moreover, where a party has been arrested on a Sunday, a sub- 
sequent detainer by another party without collusion is not 
vitiated by the illegality of the original arrest. In re Ramsdcn, 
15 L. J. M. C. 113; and see Samuel v. Bailer, 1 Ex. 439; 17 
L. J. Ex. 51. 



to arrest on 

escape 

wan-ant 



EXECUTION OF WRITS. 177 

As previously intimated, a writ of execution may be executed "Writ may be 
at any time of the day on which it is returnable (Maudy. anytime of 
Barnard, 2 Burr. 812; per Lord Mansfield: "And in the the day re- 
reason of the thing, it is as impossible for the sheriff to bring 
the defendant into Court before its rising, as before the end of 
the day of its rising, in all cases where the distance is too great 
to bring him up within either time : as in the present case, from 
Rochester, after seven or eight in the evening ; which was the 
time when the process was served ") ; but if a person is but not 
arrested after a writ is returnable, the officer cannot legally ^frd s y after * 
detain him (even for the shortest time) till the writ is continued. 
Loveridge v. Plastow, 2 H. Bl. 29. A gaoler is, however, bound 
to receive a prisoner tendered to him after the return day of the 
writ wherein he is arrested. Brandling v. Kent, 1 T. E. 60. 

Mode of Arrest. 
In order to constitute an arrest, the warrant must be produced, Warrant must 
but the closest watching of the defendant is not sufficient. be P roduced - 
Robins v. Render, 3 D. P. C. 543. An arrest must be made by Arrest must 
the authority and direction of the bailiff, but it need not be his b . e b ^ autb< ?" 

i i i • i i n -, . nt y °i bailiff. 

hand which actually arrests; nor need it take place m his 
presence and in his sight ; nor is there any precise distance from 
the person arrested, within which he must be at the time. 
Blatch v. Archer, Cowp. 65. No arrest can be effected without Actual touch- 
actually touching the defendant. Genner v. Sparks, 1 Salk. 79, i ^ [lU8t take 
and see Berry v. Adamson, 6 B. & C. 528 ; 2 C. & P. 503 ; P aCG ' 
Emsen v. Lucas, 1 C. & P. 153 ; E. & M. 26 ; and Sandoicn v. 
Jam's, 28 L. J. Q. B. 156. Placing a party under restraint of a 
sheriff's officer who holds a capias is, however, an arrest without 
proceeding to actual contact {Grainger v. Hill, 4 Bing. N. C. 
212 ; 5 Scott, 561 ; 7 L. J. (N. S.) C. P. 85) ; and if the defen- 
dant be in the sheriff's custody, as in a locked room, this is 
considered an arrest. Williams v. Jones, Hard. 301. "If the 
party is already in prison, the sheriff's duty is merely to lodge 
the order with the keeper or gaoler as a detainer." 6th ed. Atk. 
Sheriff, 227. The fact of the outer door being open is a con- When the 
dition precedent to the officer's right to enter and arrest the jj^jj* 1 " 1 
party in his own house. Kerbey v. Denby, 1 M. & "W. 336; may break 
2 Gale, 31, and Semayne's ease, Sm. L. C. 9th ed. p. 118. The Ste-^es. 
sheriff may, however, break open the door, if necessary, in the Outer door, 
following cases, viz. : (a) a writ of attachment issued against a 
party to an action for contempt of court. Harvey v. Harvey, 
m. N 



178 



ARREST. 



Inner doors. 



Window. 



Hole in wall 
of unfinished 
house. 



26 Ch. D. 644 ; 51 L. T. 508. (b) Ejectment. Semayne's case, 
supra, p. 177. (c) Crown process, subject to the sheriff's prior 
notification of the cause of his coming, and request to open the 
door : ih. p. 117; and (d) The house of any one, not being a castle 
or privilege but for himself, does not extend to protect any 
person who flies to his house to escape from the ordinary process 
of law ; for the privilege of his house extends only to him and 
his family, or to those who are lawfully and without fraud and 
covin there ; and, therefore, in such cases after denial on request 
made the sheriff may break the house. Lb. p. 121 ; and see 
Hutchinson v. Birch, 4 Taunt. 619, and Johnson v. Leigh, 1 Marsh. 
565 ; 6 Taunt. 246. A bailiff may, moreover, justify breaking 
open the door of the house on a fresh pursuit after a prisoner 
has escaped after an arrest in the street. Anon., Lofft, 390. 
And if a sheriff's officer peaceably obtain entrance through the 
outer door, but before he can effect an actual arrest he be 
forcibly expelled and the outer door fastened against him, and 
he thereupon, with assistance, force open the outer door and 
arrest the party, he is justified in so doing, and there is, more- 
over, under the circumstances, no necessity for any demand of 
re-entry. Aga Kurboolie Mahomed v. Reg., 3 Moo. P. C. C. 164. 
The owner's privilege of the outer door belongs only to one door 
and not to others, although belonging to lodgers' separate apart- 
ments ; and, therefore, a bailiff may break open a lodger's door, 
having first gained peaceable entrance at the outer door of the 
house. Lee v. Gansell, Lofft, 374 ; Cowp. 1. Subject to his 
first demanding admittance, a sheriff's officer, acting under civil 
process, may justify breaking the inner doors of the defendant's 
house, though the defendant be not there at the time. Ratclift'e 
v. Burton, 3 B. & P. 223. The bailiff may also break open the 
window of the apartment of a person residing in the house of 
another, having first gained peaceable entrance at the outer door 
of the house, if such person refuses to open the door of his 
apartment after being informed by the officer that he has 
process to serve on him. Lloyd v. Sandilands, 2 Moore, 207, and 
in Lee v. Gansell, supra. For an instance of an entry through a 
hole in the outer wall of an unfinished house, see WJiaUeij v. 
Williamson, 7 C. & P. 294 ; and see as to breaking open doors, 
Hopkins v. Nightingale, 1 Esp. 99. It is no objection that the 
bailiff gains admittance under false pretences, and any resistance 
after he is once in will be punishable. Mex v. Backhouse, 
Lofft, 61. 



EXECUTION OF WRITS. 179 

A sheriff's officer is not justified in entering and searching a Entering and 
stranger's house to arrest a defendant under a ea. sa., although stranger's 
such defendant may have resided there immediately hefore the bou.se. 
entry, and although the officer have reasonable cause to suspect 
that lie is in the house, if the fact be that he was not in the 
house at the time of the entry and search. Morri&h v. Murray^ 
13 L. J. Ex. 261 ; 13 M. & W. 52. After an arrest of a 
questionable nature in a house, the prisoner surreptitiously got 
out of the house and was arrested in the high road : — Held, the 
second arrest was legal. Snowball v. Dixon, 10 L. J. Ex. Eq. 56 ; 
4T.&C. 511. 

By the Sheriffs Act, 1887, s. 14, " (1) Where an officer being Duties of 
a sheriff, under-sheriff, bailiff, serjeant-at-mace, or other officer n arrest of 
whatsoever arrests or has in custody any person by virtue of any clvli debtors ' 
action, writ, or attachment for debt, such officer shall not : — 

(a) convey such person without his free consent to any house 

licensed for the sale of intoxicating liquor, or to the 
private house of such officer or of any tenant or relation 
of such officer ; nor 

(b) charge such person with any sum for, or procure him to 

call or pay for, any liquor, food, or thing whatsoever, 
except what he freely asks for ; nor 

(c) take such person to any prison within twenty- four hours 

of the time of his arrest, unless such person refuses to 
be earned to some safe and convenient dwelling-house 
of his own nomination, not being the private dwelling- 
house of such person, and being within the borough or 
town where such person was arrested, or if he was not 
arrested within a borough or town then within three 
miles of the place and in the county or franchise in 
which he was arrested ; 
but shall at all times permit such person to send for and to have 
brought to him at reasonable times in the day any food or liquor 
from what place he thinks fit, and also to have and use such 
bedding, linen, and other necessary things as he has occasion for 
or is supplied with, and shall not purloin or detain the same or 
require any payment for the use thereof or restrict the use 
thereof." 

[The imprisonment permitted by sect. 5 of the Debtors Act, Exception as 
1869, being intended as a punishment for misconduct, it is not mffl tS' 

an " attachment for debt " within the meaning of the above sub- *?*• 5 of . 

. . Debtors Act, 

section ; and therefore in such a case, the sheriff is not bound to 1869. 

n2 



180 



ARREST. 



Court of 
Quarter Ses- 
sions may 
order allow- 
ance for 
debtor's 
lodg-ino 1 , &c. 



Copy of order 
to be fixed in 
sessions 
house. 



Copy of this 
section to be 
delivered to 
bailiff or 
officer. 



Copy to be 
shown by 
bailiff, &c. 
to person 
arrested. 



wait twenty-four hours before taking such a debtor to prison. 
Mitchell v. Simpson, 23 Q. B. D. 373 ; 58 L. J. Q. B. 425 ; 25 
U. B. D. 183 ; and 59 L. J. Q. B. 355.] 

" (2) Every Court of Quarter Sessions in a county shall from 
time to time make an order allowing sums which may be taken 
from prisoners arrested in such county on any action, writ, or 
attachment, in respect of one or more night's lodging or for a 
day's diet or for other expenses of such person, and may from 
time to time vary such order as seems expedient. 

" (3) A copy of every such order signed by the clerk of the 
peace shall be fixed in some conspicuous place in the sessions 
house or other proper place of the county as the Court may 
order, so that the same may be there seen and examined as 
occasion may require. 

" (4) For the purpose of making known the provisions of this 
section a printed copy thereof shall be delivered by every sheriff, 
under-sheriff, secondary of the City of London, and other person 
entrusted with causing the execution of any writ or attachment, 
to the bailiff, serjeant-at-mace, officer, or other person employed 
to execute the same. 

" (5) It shall be part of the conditions of every security given 
to any sheriff, or under-sheriff, by any bailiff, serjeant-at-mace, 
officer, or other person employed to execute any writ or attachment 
under him that such bailiff, serjeant-at-mace, officer, and other 
person will show a printed copy of this section to every person 
whom he arrests and goes with to any house where intoxicating 
liquor is sold, and also will permit such person or his friend to 
read over such copy before any liquor or food is called for or 
brought to him, and any breach by such bailiff, serjeant-at-mace, 
officer, or person of such condition shall be a misdemeanour in 
the execution of the writ or attachment, besides being a breach 
of the conditions of the security." 

By the same Act a similar provision under 32 Geo. 2, c. 28, 
ss. 1 and 4, is repealed. But the following decisions under such 
latter Act may be of service in connection with the operation of 
the above section (14) of the Sheriffs Act, 1887, viz. : — Pitt v. 
Sheriff of Middlesex, 4 M. & P. 726 ; 1D.P. C. 201 ; Dewhirst 
v. Pearson, 1 D. P. C. 664 ; 1 C. & M. 365 ; Simpson v. Renton, 
5 B. & Ad. 35 ; 2 N. & M. 52 ; Summers v. Mosehj, 4 Tyr. 158 ; 
2 C. & M. 477 ; Silk v. Humphrey, 4 A. & E. 959 ; Barsham v. 
Bullock, 10 A. & E. 23 ; 2 P. & D. 241 ; and Gordon v. Laurie, 
9 Q. B. 60; 16 L.J. Q. B. 98. 



EXECUTION OF WRITS. 181 

Where a writ of ca. sa. is issued with an indorsement " to be Meaning of 
returned non est inventus" the moaning is that the sheriff is not ^^™ u s 
to search for the party, but if he renders himself to the sheriff, ca - ra- 
the latter is bound to arrest and detain him. Magnay v. Monger, 
4 Q. B. 817; 12 L. J. Q. B. 300. A warrant to arrest the 
party " to the end that he may become bound, &c. to appear at 
the next sessions," means the next session after the arrest, and 
not after the date of the warrant. Accordingly, an officer 
executing it may justify an arrest after the sessions next ensuing 
the date of the warrant. Mayhew v. Parker, 8 T. K. 110. 



Place of Arrest. 

No arrest can be made in the Queen's presence, nor within Privileged 
the verge of her royal palace, nor in any place where the 
Queen's justices are actually sitting. The verge of the palace 
of Westminster extends by 28 Hen. 8, c. 12, from Charing 
Cross to Westminster Hall. 3 Bl. Com. 289. It seems, how- 
ever, that the Board of Greencloth may grant leave. Rex v. 
8tobbs, 3 T. R. 735. But an arrest within the verge of the 
palace is no ground for discharging a defendant out of custody 
(Sparks v. Spinks, 7 Taunt. 311) ; and a man arrested within the 
verge of the Court is not entitled to be discharged, an arrest in 
a franchise being only a breach of the privilege of the lord of 
the manor. Kirkpatrick v. Kelly, 3 Doug. 30. An arrest within 
the Tower would be bad, but the governor is not privileged as 
such. See Batsonv. McLean, 2 Chit. 48, 51 ; and see also as to 
an arrest in the Tower Hamlets, Bell v. Jacobs, 1 M. & P. 309 ; 
4 Bing. 523. Kensington Palace is privileged as a royal palace 
against the sheriff's intrusion for the purpose of executing 
process. Whiter v. Miles, 10 East, 578; and Att.-Oen. v. 
Donaldson, 10 M. & W. 117. Hampton Court Palace is not, 
however, so privileged. Att.-Gen. v. Dakin, L. P. 4 II. L. 338; 
39 L. J. Ex. 113. It is no objection to an arrest that it takes 
place in a gaol, if the party is there for his own purposes. 
Loveitt v. Hill, 4 D. P. C. 579. 

2 & 3 Will. 4, c. 39, " An Act for Uniformity of Process in 2 & 3 Will. 4, 
Personal Actions," which provided for service of writs in parts | n . 42 A^s 
of counties, is repealed by 42 & 43 Vict. c. 59. viot. 0. 59. 



182 ARREST. 

Exemptions from Arrest. 
Persons The following persons are permanently privileged from arrest, 

privileged. VIZ. : — 

(1.) Members of the royal family and the Sovereign's house- 
hold, including chaplains and servants. See as to 
members of the household, Reynolds v. Pocock, 7 
D. P. C. 4 ; 4 M. & W. 371 ; Atdridge v. Barn/, 3 
D. P. C. 450 n. ; Dyer v. Disney, 16 L. J. Ex. 183 ; 
16 M. & W. 312 ; Sard v. Forrest, 2 D. & E. 250 ; 1 
B. & C. 189; Hatton v. Hopkins, 6 M. & S. 271; 
Tapley v. Battine, 1 D. & E. 79; and Batson v. Maclean, 
2 Chit. 48. In the last-mentioned case, the Court 
refused to discharge the major of the Tower on the 
ground that he was arrested when attending on the 
Prince Eegent, it not appearing that he had been 
attending by command of his Eoyal Highness, although 
the major swore that he could not leave the Tower but 
on business connected with his official situation. The 
Court also held, in that case, that the deputy-governor 
of the Tower is not privileged. As to chaplains, see 
Winter v. Dibdin, 13 L. J. Ex. 263 ; Byron v. Dibdin, 
1 C. M. & E. 821 ; 3 D. P. C. 448 ; and Harvey v. 
Dakins, 3 Ex. 267 ; 18 L. J. Ex. 156 ; and as to 
servants, see Bartlett v. Hebbes, 5 T. E. 686 ; and King 
v. Forster, 2 Taunt. 167. 

(2.) The Lord Chancellor and the Lord Keeper. 

(3.) Peers, temporal and spiritual, English, Scotch (see as to 
Scotch peers, Digby v. Stirling (Lord), 8 Bing. 55), 
and Irish (Coates v. Hawarden (Lord), 7 B. & C. 388. 
An attachment may, however, issue against a peer for re- 
fusing to obey the process of the Court : Meg. v. St. Asaph 
(Bishop), 1 Wils. 332), peeresses and peers' widows. 

(4.) Bishops, English, Scotch, and Irish, and, it seems, 
members of Convocation. 

(5.) Members of Parliament for forty days before and forty 
days after the meeting of Parliament, the rule being 
the same in the case of a dissolution as in that of a 
prorogation of Parliament. Goady v. Duncombe, 1 Ex. 
430 ; 17 L. J. Ex. 76 ; and see as to members of 
Parliament, In re Anglo-French Co-operative Society, 
14 Ch. D. 533 ; 49 L. J. Ch. 388 ; and Cassidy v. 



EXECUTION OF WRITS. 183 

Stewart, 2 Sc. N. E. 432 ; 3 M. & G. 575 ; 10 L. J. 
C. P. 57. But there is no ground for the claim of the 
privilege of Parliament as an immunity from arrest 
in respect of an offence of a criminal nature. In re Gent, 
Gent-Da tis v. Harris, 40 Ch. D. 190 ; 58 L. J. Ch. 1G2 ; 
and Ex parte Lindsay, In re Armstrong, [1892] 1 
Q. B. 327 ; 65 L. T. 464 ; 40 TV. P. 159 ; Williams, 
J. ; and on this point, Short and Mellor in their Pract. 
of the C. 0., at p. 394, say, "When orders for payment 
of money were enforced by attachment, peers and 
members of the House of Commons were privileged 
from arrest thereunder, but this exemption did not 
extend to other contempts, as for instance disobedience 
to a subpoena or the return of a writ of habeas corpus, 
and such persons are still equally liable to arrest on 
these grounds." 

(6.) Public ministers of foreign states at this Court (but not 
consuls), ambassadors, and their domestic servants. 
But the privilege of freedom from arrest of an 
ambassador's servant is the ambassador's privilege, 
and not that of the servant ; and where a person, 
alleged to be an ambassador's domestic servant, was 
arrested, and neither the ambassador, nor anyone on 
his behalf, interfered, the Court would not discharge 
the defendant unless he showed a clear case of bond 
fide service as a domestic servant of the ambassador. 
Fisher v. Begrez, 2 C. & M. 240. 

(7.) Judges, and their necessary servants, Masters in Chancery, 
cursitors, ministers, and known clerks of the Court of 
Chancery. 

(8.) Servants of the Chancellor or Keeper, or of their ministers 
or officers, of both Houses of Parliament, who are 
summoned and continually attend there, the serjeant- 
at-arms, door-keepers, clerks, &c. and the auditors and 
their officers, corporators or hundredors sued as such. 

(9.) Soldiers of her Majesty's regular forces (except " on 
account of any debt, damages or sum of money, when 
the amount exceeds thirty pounds over and above all 
costs of suit " (44 & 45 Viet. c. 58, s. 144), and seamen 
or marines of the Eoyal Navy (except in case of debt 
contracted before their entering the service ; 29 oc 30 
Vict. c. 109, s. 97). 



184 ARREST. 

(10.) Executors or administrators for the debt of their 
testator or intestate, unless a devastavit writ has been 
returned or they have made themselves liable for such 
debts under 29 Car. 2, c. 3, and an heir for a debt to 
be levied on the land descended. 
(11.) Bankrupts. See under title " Bankruptcy ; Arrange- 
ments with Creditors and Voluntary Disposition of 
Property," post, p. 354. And see as to exemption from 
arrest in bankruptcy, Cob It am v. Balton, L. P. 10 Ch. 
655 ; 44 L. J. Ch. 702 ; Earl of Lewes v. Barmtt, 6 
Ch. D. 252; 47 L. J. Ch. 144; In re Ryley, Ex parte 
The Official Receiver, 15 Q. B. D. 329 ; 54 L. J. Q. B. 
420 ; and In re Manning, 30 Ch. D. 480 ; 55 L. J. Ch. 
613. 
Persons The following persons are temporarily privileged from arrest, 

temporarily- 
privileged. ^ 1Z * • 

(1.) All persons who have any relation to a cause which calls 
for their attendance in Court ( Walpole v. Alexander, 3 
Doug. 45 ; and see Newton v. Harland, 8 Sc. 70), civil 
or criminal, including, 

(a) Arbitrations ; as to which see Spence v. Stuart, 

3 East, 89 ; Webb v. Taylor, 13 L. J. Q. B. 24 ; 
1 D. & L. 676 ; and Rishton v. Nisbett, 1 M. & 
Eob. 347. 

(b) Execution of writs by the sheriff. 

(c) Committees of either House of Parliament. 

(d) Courts martial. 

(e) Bankruptcy Court. 

(f) All inferior Courts of law, such as the sessions, 

County Courts, &c, and whether persons are 
compelled to so attend by process or not ( Walpole 
v. Alexander, aide), and whether they be parties, 
solicitors, witnesses, or bail. In other words, 
any person whose presence is necessary to the 
administration of the public justice, and on 
whose will it depends whether he shall or shall 
not attend, is privileged from arrest in civil 
process eundo, morando ct redeundo [Gilpin v. 
Benjamin and ('often, L. P. 4 Ex. 131 ; 38 L. J. 
Ex. 50), including amongst such persons: — 
(a) barristers and solicitors whilst going to, 
attending, and returning from Court, or the 



EXECUTION OF WRITS. 185 

judge's chambers, and barristers when on cir- 
cuit (which is continuous from its commencement 
to its termination: The Case of the Sheriff of 
Oxfordshire, 2 C. & K. 200) also parliamentary 
agents, whilst acting for their clients in Court, 
but not clerks {Phillips v. Pound, 7 Ex. 881 ; 21 
L. J. Ex. 277) ; but a barrister is not privi- 
leged from arrest at common law eundo et 
redeundo to and from a court of petty sessions. 
Sembh; that the privilege does not extend beyond 
the case of banisters attending in the Superior 
Courts and Courts of Nisi Prius (Nation v. 
Constable, 2 Q. B. 157) ; see as to a solicitor's 
privilege from arrest, Att.-Gen. v. The Leather- 
sellers' Co., 7 Beav. 157 ; Williams v. Webb, 12 
L. J. C. P. 89; 2 Dowl. N. S. 660; and Ex 
parte Watkins, 1 Jur. 236 ; as also In re Hope, 
9 Jur. 856; Att.-Gen. v. Skinners' Co., 1 Cooper, 
1 ; Jones v. Marshal/, 26 L. J. C. P. 229 ; 3 
Jur. N. S. 916 ; In re Freston, 11 Q. B. D. 545 ; 
52 L. J. Q. B. 545; and Thomson v. Moore, 1 
Dowl. N. S. 283. (/S) Bankrupts, as to whose 
privilege see under title " Bankruptcy, &c," 
post, p. 354, as also Ex parte Jackson, 15 Ves. 
116; Ex parte Britten, 1 M. D. & D. 278; 
Chauvin v. Alexander, 31 L. J. Q. B. 79; 10 
W. E. 248 ; Lloyd v. Harrison, 34 L. J. Q. B. 
97 ; and In re Poland, L. R, 1 Ch. 356 ; 35 
L. J. Bank. 19. (y) A person accused of a 
criminal charge, when out on bail on remand, 
as well as the prosecutor and witnesses. Gilpin 
v. Benjamin and Cohen, ante. (2) Bail, when 
attending to justify. Rimmer v. Gr, en, 1 M. & 
S. 638. (s) Magistrates attending petty sessions 
or police courts in the discharge of their duty. 
Glendenning v. Browne, 3 Ir. C. L. R. 115; 
Dubois v. Wuse, 5 Ir. C. L. R. 303. And see 
as to temporary privilege from arrest of persons 
connected with and attending judicial proceed- 
ings, Persse v. Persse, 5 II. L. Cas. 671; and 
Hobern y. Fowler, Ex part, ffobern. 62 L. J 
Q. B. 49. 



186 



AREEST. 



(2.) Clergymen or other ministers engaged, or knowingly 
about to engage, in any of the rites or duties of 
celebrating divine service or otherwise officiating in 
any church, chapel, meeting-house, or other place of 
divine worship, or in the lawful burial of the dead in 
any churchyard or other burial place, or who shall be 
knowingly going to perform the same or returning 
from the performance thereof. 24 & 25 Vict. c. 100, 
s. 36 ; and see Goddard v. Harris, 7 Bing. 320. 

(3.) Coroners or deputy coroners whilst engaged in executing 
their office. 



Aliens. 



Infants. 



Married 
women. 

Insane per- 
sons. 

Person tried, 
acquitted and 
discharged 
from criminal 
charge . 



Voluntary- 
prosecutor. 

Parliamen- 
tary candi- 
dates and 
voters. 
Person ar- 
rested before 
on same cause. 



Non-exemptions from Arrest. 

Aliens are not exempt from arrest, as to which see Dc la Vega 
v. Vianna, 1 B. & Ad. 284, and Imlay v. Ellefsen, 2 East, 453. 
" An infant should not have been held to bail for any debt or 
other matter where the plea of infancy would have been a legal 
bar to the action. If held to bail, however, a Court or a judge, 
it seems, would not discharge him." 14th ed. Chit. Arch. 
p. 1460. 

Married women, it appears, are subject to arrest ; as also are 
insane persons. Kernot v. Norman, 2 T. E. 390 ; Nutt v. Verney, 
4 T. E. 121 ; and Steel v. Alan, 2 B. & P. 362. 

A party who has been detained upon a criminal charge, and 
tried, acquitted, and discharged, is not privileged from arrest 
during his return home from the gaol in which he has been 
confined. Goodwin v. Lordon, 1 A. & E. 378 ; 3 N. & M. 879 ; 
and see Hare v. Hyde, 16 Q. B. 394 ; 20 L. J. Q. B. 185. 
Moreover, a defendant when discharged from legal custody, 
has no privilege from arrest when returning home. Anon., 
1 D. P. C. 157. The privilege from arrest under civil process 
is entire, eundo, morando et redeundo ; accordingly if a party 
cannot claim his privilege, eundo et morando, he will not be 
entitled to it redeundo. Ex parte Cobbett, 7 El. & Bl. 955 ; 26 
L. J. Q. B. 293 ; and see Montagu v. Harrison, 3 C. B. N. S. 
292 ; 27 L. J. C. P. 24. A voluntary prosecutor — as a common 
informer — is not entitled to any privilege from arrest. Ex parte 
Cobbett, supra. Candidates at a parliamentary election, or voters 
for such candidates, are not privileged from arrest. According 
to Chit. Arch., it is apprehended that a judge in his discretion 
will in general allow a defendant to be arrested, although he 



EXECUTION OF WRITS. 187 

has been before arrested for the same cause of action, unless the 
proceeding is vexatious and oppressive ; and see Ileyicood v. 
Collinge, 9 A. & E. 268. As to the non-exemption from arrest Bankrupts, 
of bankrupts, see the Bankruptcy Act, 1883, s. 30, sub-s. 1 and 4, 
under title " Bankruptcy," &c.,post, p. 355. 

The Sheriff's Relative Position in Case of Privilege. 

It seems that in some cases of permanent privilege the sheriff Liable for 
would incur a fine, imprisonment, and even corporal punishment pri^ie^ed 
by arresting the privileged party, e.g., a peer, peeress, or a persons in 

certain, esses 

member of the House of Commons, an ambassador or his 
domestic (subject to the proper registration of the name of the 
latter at the Foreign Office and its transmission to the sheriffs 
of London and Middlesex), and a clergyman whilst privileged 
to the knowledge of the sheriff. On this subject, Chit. Arch. 
(14th ed.) says, at p. 1484, " Except where a party is privileged Not liable in 
from arrest by the Queen's writ of protection, the sheriff is not pr i v iie^ef S 
bound to notice a party's temporary privilege from arrest. No 
action lies against a sheriff for arresting a party whilst tempo- 
rarily privileged from arrest. Nor does an action lie against a 
sheriff for arresting a person after notice that he was privileged 
redeundo from attending as a witness before a court of competent 
jurisdiction. ... A sheriff is not bound to arrest a party 
privileged from arrest (as a witness returning from the Court). 
Unless the party privileged claims his privilege, he is in legal 
custody, and the sheriff is bound to detain him. If a party is 
improperly arrested whilst privileged from arrest, he may obtain 
his discharge upon application to the Court or a judge at 
Chambers." It seems that the sheriff is excused, and is not 
liable in damages if, in acting under a mandate of the Court, 
he has arrested a privileged person (Tar/ton v. Fisher, 2 Doug. 
G76) ; and he is not liable in trespass if the writ is set aside, 
although the party who has sued out the writ may be. Unless Liability for 
the party be privileged, the sheriff is liable for the costs of an illegal arrest, 
illegal arrest. 



Liability of Third Parties for Obstructing Arrest. 

On this subject, see under "Introductory," ante, p. 155, and 
under " Initial Steps," ante, p. 176. 



188 



ARREST. 



An escape, if 
arrest and 
custody 
lawful. 



If sheriff 
receives sums 
due before 
return ; 



or bail. 



No escape, 
if custody 
not lawful. 



3. Escape and Rescue. 

Escape in general is where any person who is under lawful 
arrest and restrained of his liberty, either violently or privily 
evades such arrest and restraint, or is suffered to go at large 
before being delivered by due course of law. It seems agreed 
as a general rule that wherever a sheriff or other officer has a 
person in custody by authority from a Court which has juris- 
diction over the matter, the suffering such person to go at large 
is an escape, for he cannot judge of the validity of the process, 
or other proceedings of such Court, and therefore cannot take 
advantage of any errors in them. Hence the law allows him, 
in an action of false imprisonment, to plead such authority 
which will excuse him, even though it be erroneous. 7th ed., 
Bac. Abr. Yol. III. p. 122. If the sheriff permits a prisoner in 
execution to go at large, though he afterwards return, yet it is 
an escape. Boi/ton's Case, 3 Rep. 44. And it is also an escape 
if the bailiff remove a prisoner taken in execution to the county 
gaol, situate out of his bailiwick, and there deliver him to the 
sheriff (Boothman v. Surrey (Earl of), 2 T. R. 5), or if the 
sheriff's officer, having taken a prisoner in execution, permit 
him to go about with a follower of his before he takes him to 
prison. Benton v. Sutton, 1 B. & P. 24. Where the sheriff 
suffers the defendant to escape either with the consent or by 
the fraud of the plaintiff, it is no escape as against him ; but 
the consent must be given previous to the discharge in order to 
excuse the sheriff, and an assent subsequent will not make it an 
escape with the consent of the plaintiff and therefore the sheriff 
will not be excused ; but the plaintiff either has his remedy 
against the sheriff or may retake the party. 7th ed., Bac. Abr. 
Yol. III. p. 139 ; Hiscocls v. Jones, M. & M. 269 ; Scott v. 
Peacock, 1 Salk. 271. If upon execution of a writ of ea. sa., the 
sheriff before the return day receive the money due from a 
prisoner and thereupon liberate him, before he has paid it over 
in satisfaction to the party entitled to it, he is answerable for an 
escape. Blackford v. Austen, 14 East, 468. Moreover, the fact 
of the sheriff unauthorizedly taking bail or receiving payment 
constitutes an escape. His responsibility ceases as soon as he 
has conveyed the arrested person to prison. 

If a party not in lawful custody escapes, it is no escape in 
law and consequently the officer is not punishable for suffering 



EXECUTION OF WRITS. 189 

a person so taken to escape, and in an action against him for the 
escape the law allows him to plead that his authority was void, 
which will excuse him. 7th ed., Bac. Abr. Vol. III., p. 123. 

The sheriff is not, however, liable for an escape from the Sheriff not 
special bailiff of the party at whose instance the arrest is made. t ^. a po from 
Doe v. True, 7 Sc. 704 ; 7 D. P. C. G36 ; Pascoe v. Vyvian, 1 plaintiff's 

* special bailiff. 

Dowl. N. S. 939. 

It was held in Pitcher v. Bailey, ^ East, 171, upon the autho- When escape 
rity of the therein cited case of Eyle* v. Faikney, that where an fg cer C a nn ot 
officer is guilty of a breach of duty in permitting a prisoner to recover money 
go at large on his promise to pay the debt, for which he was debtor, 
arrested, to the creditor, resulting in his being obliged to pay 
the creditor himself, he could not recover back the money from 
the debtor. 

After a voluntary escape the sheriff cannot retake a prisoner Retaking on 
(Atkinson v. Jameson, 5 T. E. 25) and would be liable to an e:5ca P e - 
action for false imprisonment if he did, in the case of an escape 
with his or his officer's consent, and if the sheriff by mistake 
releases a defendant against whom a ca. sa. has been lodged it 
is a voluntary escape. Mlewood v. Clement, 6 D. P. C. 508. 
Moreover, according to the last-cited case, if the sheriff does 
retake the defendant, the caption being a nullity, lapse of time 
will not be an objection to the defendant's discharge. But it 
seems that under certain circumstances the arrested party may 
be retaken on escape as, e. g., in case of a negligent escape in 
ca. sa. without the sheriff or his officer's collusion, they may 
retake the party in any place and even on Sunday. The sheriff 
is, moreover, excused if he retake the party after a negligent 
escape or if the latter return into custody before any proceedings 
are commenced against the sheriff or if the party be, before any 
such proceedings, prevented doing so by the action of the plain- 
tiff with the object of fixing the sheriff with consequent liability, 
subject, however, to the sheriff being either unaware of the 
escape or knowing of it, having done his utmost to retake the 
party. 

As to rescue, the sheriff is bound to provide such a force as Rescue, 
will enable him to effect his caption in spite of any resistance he 
has reason to anticipate ; and if, after a caption, the party taken 
be rescued by force, the sheriff may return the rescue. Hoialm 
v. Standi*/,, 6 0. B. 504 ; 18 L. J. C. P. 33 ; and see judgment 
of Coltman, J., in that case. 



190 ARREST. 



4. Bail. 

May be taken When a defendant is taken under attachment, which is in the 

ment 1 " attaC " na ture of mesne process, the sheriff may, it appears, take bail 

hut he is not bound to do so ; if he does, he may recover upon 

the bail bond, and if he has the party in custody at the return 

of the writ, no action will lie against him. Lewis v. Morland, 

Cannot be 2 B. & Aid. 56 ;' but see Anon., 1 Stra. 479. It seems, however, 

ea sa according to Lewis v. Morland, supra, at p. 65, that bail cannot 

be taken under a writ of ea. sa. 
May be taken It will be observed that in the case of attachment on articles 
Zent'fo^tbe" of the P eace ( Writ of Attachment for the Peace) the sheriff may 
peace. discharge the party on bail in accordance with the directions of 

the writ. 



Form of Bail Bond under Attachment for the Peace. 

Know all men by these presents that we [name and description of 
the parti/ arrested] and and are held and firmly bound 

to Esquire, sheriff of the county of in the penal sum of 

£ of good and lawful money of Great Britain to be paid to the 

said sheriff, for which payment to be well and faithfully made we 
bind ourselves and every one of us by himself for the whole and 
every part thereof, the heirs executors and administrators of us and 
every of us firmly by these presents sealed with our seals, dated 
this day of 18 Whereas the above bounden [party 

arrested] was on the day of 18 taken by the said 

sheriff in the bailiwick of the said sheriff by virtue of the Queen's 
Writ of Attachment for the Peace issued out of Her Majesty's 
Court of at bearing date the day of 1 8 to 

the said sheriff directed and delivered. And whereas the said 
sheriff is by the said writ directed on his attaching the said [party 
arrested'] by virtue thereof to discharge the said [party arrested] on 
bail until the day of 18 the day named in such writ 

for the said [party arrestedjs attendance before the said Court, by 
sufficient manucaptors under a certain penalty to be imposed upon 
them by the said sheriff as well for the keeping his the said [party 
arrested]'B day as for the keeping the peace by him in the meantime 
of Our Lady the Queen and all her liege people and especially 
towards of named in such writ. Now the condition of 

this bond is such that if the above bounden [party arrested] so 
keeps his day and so keeps the peace during such interval as afore- 
said as required by the said writ, then this present obligation to be 
void or else to stand in full force and virtue. 

Signed sealed and delivered &c. (l.s.) 

(L.S.) 

(L.S.) 



EXECUTION OF WRITS. 191 



5. Security. 



As to arrest of defendant under section 6 of the Debtors Act, To be given 
1S69, " the security to be given by the defendant may be a J e en ant * 
deposit in Court of the amount mentioned in the order, or a 
bond to the plaintiff by the defendant and two sufficient sureties 
(or with the leave of the Court or a judge either one surety or 
more than two), or, with the plaintiff's consent, any other form 
of security. The plaintiff may, within four days after receiving 
particulars of the names and addresses of the proposed sureties, 
give notice that he objects thereto, stating in the notice the 
particulars of his objections. In such case the sufficiency of the 
security shall be determined by a master, who shall have power 
to award costs to either party. It shall be the duty of the 
plaintiff to obtain an appointment for that purpose, and unless 
he do so within four days after giving notice of objection, the 
security shall be deemed sufficient." R. of S. C, 1883, Ord. 
LXIX., r. 3. 

" The money deposited, and the security, and all proceedings Control of 
thereon, shall be subject to the order and control of the Court or gecuxity^I-c 
a judge." lb. r. 4. 

" Upon payment into Court of the amount mentioned in the Discharge of 
order, a receipt shall be given ; and upon receiving the bond or p^ent or" 1 
other security, a certificate to that effect shall be given, signed security. 
or attested by the plaintiff's solicitor if he have one, or by the 
plaintiff, if he sue in person. The delivery of such receipt, or 
a certificate to the sheriff or other officer executing the order, 
shall entitle the defendant to be discharged out of custody." 
lb. r. 6. 

In the case of the writ of ne exeat regno, it will be remembered In case of 
that it is granted to prevent a person from leaving the realm, to "* ***** regno. 
the damage of the person to whom he is indebted, until he has 
given security for the amount of the debt ; as to which see, 
moreover, directions in the writ, ante, p. 165. 

As to security in the case of Articles of the Peace, see C. 0. R. In case of 
1886, rr. 280—292 (Articles of the Peace), ante, p. 45. a?iw 

6. Discharge. 

In case of arrest on mesne process a plaintiff was bound to In arrest on 

accept from a defendant in custody under a ca. sa. the debt S^tiff 100 * 88 

and costs, when tendered, in satisfaction of his debt, and to sign bound to 

accept debt 



192 



ARREST. 



and costs from an authority to the sheriff to discharge the defendant out of 
defendant. cugtody Crozer y p iain g t 6 jj. & R. 129 ; 4 B. & C. 26 ; 

and see Hemming v. Hale, 29 L. J. 0. P. 137, where a payment 

Discharge of to a solicitor's clerk was held good. Again, by 15 & 16 Yict. 

authority of c - 76 (Common Law Procedure Act, 1852), sect. 126, a written 

attorney in order under the hand of the attorney in the cause, by whom any 
the cause. J ■ . 

writ of capias ad satisfaciendum should have been issued, justified 

the sheriff, gaoler, or person in whose custody the party might 

be under such writ, in discharging such party, unless the party 

for whom such attorney professed to act should have given 

written notice to the contrary to the sheriff, gaoler, or person in 

whose custody the opposite party might be, but such discharge 

was not to be a satisfaction of the debt, unless made by the 

authority of the creditor ; and nothing contained in such act 

should justify any attorney in giving such order for discharge 

without the consent of his client. Nor had the plaintiff's 

solicitor any authority over the execution of the writ of ca. sa. 

so as to carry it into effect against the order of the plaintiff. 

Barker v. St. Quintin, 1 D. & L. 542 ; 13 L. J. Ex. 144 ; and 

see Martin v. Francis, 2 B. & A. 402 ; 1 Chit. 241. 

Discharge on The sheriff was, moreover, bound to discharge the defendant 

plaintiff f pro- on the plaintiff authorizing it, and providing there were no 

vided there detainers against defendant (2nd ed. Watson Sheriff 197), to 

are no de- . , . ... 

tainers. ascertain which the sheriff might detain the party a reasonable 

time, at least twenty-four hours, and the officer was not bound 
to make the search until the written discharge arrived. 
Taylor v. Brander, 1 Esp. 45 ; and see Samuel v. Bailer, 1 Ex. 
439 ; 17 L. J. Ex. 54, where it was, moreover, held that service 
on a Sunday of a warrant of detainer under a ca. sa. made no 
difference in the case. And where the debt had been paid, no 
matter by whom, the defendant was entitled to be discharged. 
Rimmer v. Turner, 3 D. P. C. 601. In an action against a 
sheriff for wrongfully discharging the judgment debtor, the gist 
not being mere negligence as in an action for an escape, it is 
doubtful whether it is a defence that the plaintiff's negligence 
contributed to the injury by his sending an order which the 
sheriff might have understood as authorizing the discharge and, 
scmble, that the defence must be that the plaintiff authorized the 
discharge and that it must be specially pleaded. Hodges v. 
Patterson, 26 L. J. Ex. 223. To continue, if the sheriff, after a 
direction from a plaintiff not to execute a writ of ca. sa. did so, 
he (the sheriff) became a trespasser, as also if he detained a 



EXECUTION OF WRITS. 1 3 

defendant after notice from the plaintiff that he had released 
him from the debt. Barker v. St. Quintal, 1 I). & L. 542 ; 13 
L. J. Ex. 144. But where a ca. sa. was countermanded before 
any arrest thereunder, the defendant's arrest under other parties' 
writs did not make him in custody under the first writ. National 
Assurance Co. v. Best, 2 H. & N. 605 ; 27 L. J. Ex. 19 ; and 
see as to countermanding arrest, Semple v. Keen, 3 H. & N. 753 ; 
28 L. J. Ex. 151 ; and Futcher v. Hinder, 28 L. J. Ex. 28; 3 
H. & N. 757. 

Failing above authority, the defendant could only be dis- Discharge 
charged under an order of the Court ; In re Thompson, Natty v. f Court. 
Aylett, 43 L. J. Ch. 721 ; 30 L. T. 783 ; see also Re Deere, 10 
L. P. Ch. 658 ; in connection with which subject see the follow- 
ing cases, viz. : — re misdescription of defendant and other Hisdeserip- 
irregularities in writ, Macdonald v. Mortlock, 14 L. J. (2. B. an(i other 
244 ; 2 D. & L. 9G3 ; Reg. v. Burgess, 2 Jur. 396 ; II. v. Calvert, irregularities. 
2 C. & M. 189; 4 Tyr. 77; Rennie v. Bruce, 14 L.J. Q. B. 
207; 2 D. & L. 946; Moore v. Magan, 16 L. J. Ex. 57; 
Bettyes v. Thompson, 7 D. P. C. 322 ; 2 Jur. 920 ; and Strong 
v. Dickinson, 5 D. P. C. 99 ; re privilege, Flight v. Cook, 13 Privilege. 
L. J. Q. B. 78 ; 1 D. & L. 174 ; re plaintiff's death, Parkinson v. Plaintiff's 
Horlock, 2 N. R. 240 ; Ellis v. Griffith, 16 L. J. Ex. 66 ; 16 M. death- 
& W. 106; 4 D. & L. 279; Todd v. Wright, 16 L. J. Q. B. 
311 ; Gore v. Wright, 1 Dowl. N. S. 864 ; Broughton v. Martin, 
1 B. & P. 176 ; Dunsford v. Gouldsmith, 8 Moore, 145 ; Taylor 
v. Burgess, 4 D. & L. 708 ; 16 L. J. Ex. 204 ; Camp v. Pole, 7 
D. & L. 289 ; 8 C. B. 375 ; Cox v. Pritchard, 2 L. M. & P. 298 ; 
re Crown process, Reg. v. Renton, 2 Ex. 216; 17 L. J. Ex. 
264 ; and re irregular arrest, Birch v. Prodger, 1 N. R. 135 ; Irregular 
and Rhodes v. Hull, 26 L. J. Ex. 265. If the sheriff detain a 
person after he has had notice of an order of the Court to dis- 
charge such person from arrest, it seems he is liable to an action. 
Mag nay v. Burt, 5 Q. B. 381 ; and Marfiti v. Francis, 1 Chit. 
241 ; although see Watson v. Carroll, 7 D. P. C. 217. 

If while a ca. sa. was lying in the hands of a sheriff the 
party was illegally taken into custody at the suit of another 
person, the ca. sa. attached and the sheriff could not discharge 
the defendant. Arundel v. Chittu, 1 D. P. C. 499. In cases of Sheriff not 
arrest on mesne process, the sheriff was not liable for the con- bailift's°ne°-li- 
sequences of his bailiff 's negligence in not paying over to the £ en ? c "* not 
plaintiff the amount received by him from the debtor. In other 



104 



ARREST. 



Effect of 
discharge. 



Application 
of principles 
to committal 
under Debtors 
Act. 



Discharge 
under orders 
of arrest 
under Debtors 

Act. 



words, it was no part of the sheriff's duty in the execution of 
a ca. sa. to receive the amount in question in order to its pay- 
ment over to the execution creditor, although the judgment was 
not satisfied till such payment. Wood v. Finnis, 7 Ex. 363 ; and 
see Woodman v. Grist, 8 C. & P. 213. Again, a discharge from 
custody by plaintiff's solicitor was no discharge of the debt. 
National Assurance Co. v. Best, 27 L. J. Ex. 19 ; 2 H. & N. 
605. Accordingly if upon the execution of a writ of ca. sa. the 
sheriff before the return day received the amount due from the 
prisoner and thereupon liberated him before he had paid it over 
in satisfaction to the party entitled thereto, the sheriff was 
answerable as for an escape. Stachford v. Austen, 14 East, 468 ; 
and see Hemming v. Hale, 29 L. J. C. P. 137 ; and Semple v. 
Keen, 2 H. & N. 753 ; 28 L. J. Ex. 151. It seems the sheriff 
is not the proper party to sue, and cannot be called upon to pay 
into Court money paid to him under an attachment. Rex v. 
Palmer, 2 East, 411 ; Bex v. Sheriff of Devon, 3 D. P. 0. 10. 
But he is not entitled to his poundage on the sum levied. Rex 
v. Sheriff of Devon, ante. 

It is conceived that the above principles are still more or less 
in force in relation to the cases where a writ of ca. sa. is still 
applicable and to orders of committal under sect. 5 of the 
Debtors Act, 1869 ; it being, it will be observed, provided by 
sub-sect. 2 of that section that every order of committal by any 
superior Court shall, subject to the prescribed rules, be (inter 
alia) obeyed and executed in the like manner as a writ of ccqrias 
ad satisfaciendum. Moreover, in regard to committal under the 
Debtors Act, 1 869, any person imprisoned thereunder shall be 
discharged out of custody upon a certificate signed in the pre- 
scribed manner to the effect that he has satisfied the debt or 
instalment of a debt in respect of which he was imprisoned 
together with the prescribed costs (if any) ; whilst, by the 
general rules under the same Act, r. 5, upon payment of the 
sum or sums mentioned in the order (including the sheriff's fees 
in like manner as upon a ca. sa.) the debtor shall be entifled to 
a certificate in the Form B. in the schedule, or to the like effect, 
signed by the attorney in the cause of the creditor, or signed by 
the creditor and attested by an attorney on his behalf, or a 
justice of the peace. 

As to discharge under orders of arrest under sect. 6 of the 
Debtors Act, 1869, see under sub-title "Security," ante, p. 191, 
as also Hume v. Driu/ff, L. E. 8 Ex. 214 ; 42 L. J. Ex. 145. 



EXECUTION OF WRITS. 



195 



As to discharge in the case of attachment for not answering In case of 
to an information, see Short & Mellor's Pract. of the C. 0., f orno tan- 

pp. 411, 412. swering to 

a i -n i -r> >> information. 

And see as to discharge, under sub-title " Escape and liescue, 
ante, p. 188. 

As to the writ of contumacc capiendo, after authorizing and In cas f, °* 

" . writ of contu- 

requirmg all sheriffs, gaolers and other officers to execute the mace capiendo. 
same by taking and detaining the body of the person against 
whom such writ is directed to be executed, 53 Geo. 3, c. 127, 
s. 1, proceeds thus: "And upon the due appearance of the 
party so cited and not having appeared as aforesaid, or the 
obedience of the party so cited and not having obeyed as afore- 
said, or the due submission of the party so having committed 
a contempt in the face of the Court, the judges or judge of such 
Ecclesiastical Court shall pronounce such party absolved fi-om the 
contumacy and contempt aforesaid, and shall forthwith make an 
order upon the sheriff, gaoler or other officer in whose custody 
he shall be, in the form to this Act annexed, for discharging 
such party out of custody, and such sheriff, gaoler or other 
officer shall, on the said order being shown to him, so soon as 
such party shall have discharged the costs lawfully incurred by 
reason of such custody and contempt forthwith discharge him." 

Writ of Deliverance referred to. 

Whereas of in your county of whom lately, at 

the denouncing of for contumacy, and by writ issued there- 

upon, you attached by his body until he should have made satisfac- 
tion for the contempt ; Now he having submitted himself, and 
satisfied the said contempt, AVe hereby empower and command you, 
that without delay you cause the said to be delivered out of 

the prison in which he is so detained, if upon that occasion and no 
other he shall be detained therein. Given under the seal of our 
of 

A. B.,. Registrar 
[or, Deputy Registrar, as the case may be~\. 
Extracted by E. F., 

Proctor. 

By 3 & 4 Yict. c. 93, s. 1, the Privy Council or the judge of 
any Ecclesiastical Court may order the discharge of persons in 
custody under this writ ; and see as to discharge under this 
writ, Rex v. Bugger, 1 D. & R. 460; 5 B. & A. 791 ; Bex 
v. Moby, 3 D. & R. 570 ; Reg. v. Jones, 10 A. & E. 570 ; 
Rex v. Jenkins, 3 1). & R. 41; 8. C. num. Ex parte Jenkins, 
1 B. & C. 655; Reg. v. Baincs, 4 P. & D. 362 ; 12 A. & E. 

o2 



100 



ARREST. 



Discharge in 
bankruptcy. 



210 ; 5 Jur. 337; In re The Rev. 8. P. Bale, The Queen v. Lord 
Penzance; In re The Rev. R. W. Enraght, The Queen v. Lord 
Penzance, 6 Q. B. D. 370 ; 50 L. J. Q. B. 234. 

As to discharge in bankruptcy, see under title "Bankruptcy, 
&c," post, p. 354. 

As to discharge generally, see Greaves v. Keen, 4 Ex. D. 73 ; 
40 L. T. 210 ; In re Edwards, Brooks v. Edwards, 21 Ch. D. 
230; and Pitt v. Coombs, 3 N. & M. 212; 5 B. & Ad. 1078. 



Issue of 
several writs. 



7. Re-arrest and Detention. 

A ca. sa. is not returnable till executed ; and therefore where 
a party arrested under a ca. sa. is discharged on the ground of 
privilege the writ is not executed, aud he may be retaken under 
it when his privilege expires. Reynolds, Barrack, or Williams v. 
Newton, 1 Gr. & D. 153 ; 1 Q. B. 525 ; and see Phillips v. Price, 
12 L. J. Q. B. 348, and Plomer v. Bull, 5 A. & E. 823. More- 
over, where a defendant taken in execution obtains a discharge 
by reason of the irregularity of a ca. sa. he may be retaken 
under a fresh writ. Collins v. Beaumont, 10 A. & E. 225 ; 2 P. 
& D. 303. Quaere, whether a defendant can be arrested a second 
time without a judge's order where the writ upon which he was 
first arrested has been set aside for irregularity. Holliday v. 
Lawes, L. J. (N. S.) C. P. 101 ; 3 Bing. N. 0. 541. But, 
according to 14th ed. Chit. Arch. p. 1488, if the defendant be 
entitled to his discharge, the same plaintiff cannot while he is in 
custody, or while he is returning from custody and until he 
completely regain his liberty, detain or arrest him, though for a 
totally different cause of action, but, if the defendant delay 
going out of custody, it seems he might be arrested. 

A party cannot be detained, but may be retaken under an 
amended writ of attachment. Reg. v. Burgess, 2 Jur. 396. 

Since the Debtors Act, 1869, a person attached for misconduct 
and who has cleared his contempt cannot be detained for not 
paying the costs. Jackson v. Mawby, 1 Ch. D. 86 ; 45 L. J. Ch. 
53; Micklethwaite v. Fletcher, 27 W. R. 793. 

And see also as to retaking in relation to escape, ante, p. 189, 
and as to detention, under sub-title "Several Writs," post, p. 197. 

8. Several Writs. 
Several writs of attachment may, it seems, concurrently issue 
into different counties, but as soon as the defendant has been 
arrested on one, the other writs should be countermanded. 



EXECUTION OF WRITS. l' J ^" 

In the case of a return of " non est inventus " on any writ of Alias and 
attachment for contempt, one or more writs may issue on the p u 
return day of the previous writ. C. 0. R. 1886, r. 262. And 
on a return of " non est inventus" in the case of articles of the 
peace the subsequent proceedings shall he the same as provided 
by the rules on attachment for contempt up to capture. C. O. P. 
1886, r. 284. As to duration and renewal of writs, see C. 0. P. Duration and 
1886, r. 226, ante, p. 39. renewaL 

Concurrent orders of committal under sect. 5 of the Debtors Concurrent 
Act, I860, may be issued for execution in different counties. comm i t taior 
Reg. Gen. M. T. 1869. Concurrent orders to arrest under arrest under 
sett. 6 of that Act may also be issued for arrest in different 
counties. R. of S. C. 1883, Ord LXIX. r. 2. 

When a sheriff arrests a defendant in one proceeding, it Arrest under 
operates virtually in all other proceedings in which the sheriff 
holds writs against him at the time. Collins v. Tewens, 2 P. & 
D. 439; 10 A. & E. 070; and Watson v. Carroll, 7 D. P. C. 
217. In Wright v. Stanford, 1 Dowl. N. S. 272 ; 6 Jur. 130, When ori- 
it was held that where a defendant had been regularly arrested f e g a i. 
on an attachment out of Chancery, the fact of an irregular ca. sa. 
out of the Common Pleas against the defendant after the arrest 
did not interfere with the right of another plaintiff to detain the 
defendant by virtue of a subsequent ca. sa. And see Frost' 's 
Case, 5 Eep. 89. If the sheriff, having two writs in his hands, 
one valid, the other invalid, arrests on both at the same time, he 
may rely on the valid writ and treat as detainers any number of 
valid writs which he may then have or which may afterwards 
come to his hands. But if, having two such writs, he arrests on When ori- 
the invalid writ alone, he cannot afterwards justify the arrest by megal. 
the good writ. Moreover, the sheriff cannot, while a person is 
unlawfully in his custody by virtue of an arrest on an invalid 
writ, arrest that person on a good writ ; to permit him to do so, 
would be to allow him to take advantage of his own wrong. 
Hooper v. Lane, 10 Q. B. 546 ; 17 L. J. Q. B. 189 ; and see 
Bateman v. Freston, 30 L. J. Q. B. 133. But where a sheriff 
illegally arrested a defendant in one action, it was held he could 
not justify detaining him in another. Barratt v. Pri<r, 2 L. J. 
(N. S.) C. P. 56 ; 9 Bing. 566 ; 1 D. P. C. 725. Moreover, if 
the first arrest is illegal, the party cannot be detained under 
other writs without a fresh arrest, which fresh arrest is not, 
however, prevented by the custody under the former illegal 
writ in the absence of collusion. Collins v. Tewens, 2 P. & D. 



198 



ARREST. 



439 ; 10 A. & E. 570. In Howard v. Cauty, 13 L. J. Q. B. 
294, the sheriff, by the direction of the plaintiff's solicitors, 
issued a warrant under a ca. sa. to his officer to whom notice was 
afterwards given by such solicitors not to execute the writ. It, 
however, remained in the sheriff's hands, and the defendant was 
subsequently arrested by the same officer at a third person's suit. 
Held, that the defendant could not, under these circumstances, 
insist that he had ever been in custody under the first writ, 
although qitcerc whether notice to a sheriff's officer intrusted with 
a warrant not to execute a writ is notice to the sheriff. 

In Robinson v. Yetrens, 5 M. & W. 149 ; 3 Jur. 776, a person, 
against whom several writs of capias had been lodged with the 
sheriff, was arrested on one of them by an officer who had no 
warrant for that purpose, but who, after the arrest, had his name 
inserted in a warrant which had been placed in the hands of 
another officer to make the arrest in that action. Held, that 
such person was thenceforth lawfully in custody on all the writs, 
the under-sheriff having negatived by affidavit that at the time 
of altering the warrant he knew of any arrest having been made, 
or that he was acting in collusion with the officer. But see 
Collins v. Tewens, 10 A. & E. 570; 2 P. & D. 439; and Pearson 
v. Yewens, 7 Scott, 435 ; 5 Bing. N. C. 489. 

And on the subject of " Several "Writs," see under title ""Writ 
of Fieri Facias (Introductory)," ante, p. 52. 



Return 
generally. 



Return to 
capias. 



Return to 

con !/i mace 
riijii, mlii. 



Return of Writs. 

As to return of writs generally, see under title "Writ of 
Fi. Fa." ante, p. 87, under sub-heading " Introductory " of 
this Chapter, and under title " Liability and Eights of the 
Sheriff and Remedies against the Sheriff," post, p. 494, whilst 
as to what returns should be made in the various branches of 
arrest process, see the following forms. 

To refer more particularly to return in arrest process, (a) as 
to return in case of capias, the sheriff is bound to make his 
return to this writ within a reasonable time. Brown v. Jarvis, 5 
D. P. C. 281; 1 M. & W. 704; 5 L. J. (N. S.) Ex. 271. 
(b) As to the return to contumacc capiendo, by sect. 1 of 5 Eliz. 
c. 23 (incorporated with 53 Geo. 3, c. 127), this writ shall be 
issued in term time and returnable in the ensuing term, and 



RETURN OF WRITS. 19° 

there must "be at least twenty days between the teste and return ; 
but it seems it may now be issued and made returnable irre- 
spective of term. The proceedings will be irregular unless the 
writ be lodged for execution previous to the return day. Any 
required return to the writ of contumace capiendo should be made 
immediately on its execution ; the return must be to the Crown 
Office, all further proceedings taking place on the Crown side of 
the Court, (c) As to return in case of habeas corpus, it is pro- Return to 
vided by 31 Car. 2, c. 2, s. 2, that the sheriff, or other officer, 
having any person in his custody must within three days after 
service of habeas corpus (with the exception of treason and 
felony), as and under the regulations therein mentioned, make 
return of such writ, or bring up the body before the Court to 
which the writ is returnable and certify the true causes of 
imprisonment, " unless the commitment of the said party be in 
any place beyond the distance of twenty miles from the place 
or places where such Court or person is or shall be residing, and 
if beyond the distance of twenty miles, and not above one hun- 
dred miles, then within the space of ten clays, and if beyond the 
distance of one hundred miles, then within the space of twenty 
days, after such delivery aforesaid, and not longer " ; and by 
sect. 3, a person committed, except for treason and felony, &c, 
may appeal to the Court, who may award habeas corpus " to be 
directed to the officer or officers in whose custody the party so 
committed or detained shall be, returnable immediate " before 
the Court, and upon service thereof such officer, &c, must bring 
up the prisoner before the Court " within the times respectively 
before limited," with the return of such writ and the true causes 
of the commitment and detainer; and thereupon within two 
days the Court may discharge the prisoner upon recognizance, 
and certify the writ with the return and recognizance, 
subject to the therein-mentioned proviso for process not bail- 
able (/). And see hereon Ex parte Sheriff' of Middlesex, 9 D. 
P. C. 195. The return to a habeas corpus must answer the 
taking as well as the detaining. Wurman's Cusp, 2 "W. Bl. 1204; 
and see as to return in habeas corpus, C. 0. R. 1886, rr. 211 — 
2 l : >, and for any further information, Short & Mellor's Pract. 
of the C. 0., Chap. XL, "Habeas corpus." (d) As to return to Returns to 
attachment for contempt, see C. 0. R. 1886, r. 262 ; and (e) as to f or cont^pt 
articles of the peace, see C. 0. R. 1886, rr. 282, 283. and articles of 

the peace. 

(/) For greater simplicity the old mode of spelling in the text is not 
hero adopted. 



200 



ARREST. 



Returns : 

" Non est 
inventus.'" 



Rescue. 



LaMr/Midas." 



Insanity. 



Privilege. 
Escape. 



Setting aside 
return. 



Action 
against 
BherifE for 

false return. 



Ruling sheriff 



A return to a writ of capias, " the defendant is not to be 
found in my bailiwick," is a void return. Rex v. Kent (Sheriff), 
in a cause of Potter v. Simpson, 2 M. & W. 316 ; 5 D. P. C. 451. 
And if a sheriff returns " non est inventus " when the defendant 
is visible and pursuing his business as usual, the sheriff is liable 
to an action for false return. Beckford v. Wilts (Sheriff), 2 
Esp. 475 ; but see Saxton v. West, 2 Anst. 479. If after a 
caption the party taken be rescued by force, the sheriff may 
return the rescue. Hotcden v. Standish, 6 C. B. 504 ; 18 L. J. 
C. P. 33. And where a defendant has been rescued from a 
bailiff, the sheriff may return the rescue as from his bailiff, and 
not from himself. Gobbey v. Deices, 3 M. & Scott, 556 ; 2 L. J. 
(N. S.) C. P. 226 ; and see as to return of rescue, Rex v. 
Middlesex (Sheriff'), IB. & A. 190 ; and Short & Mellor's 
Pract. of the 0. O. (attachment on a return of rescue) pp. 412 
et seq. In the case of a return " languidas" the fact of the 
defendant's illness at the return of the writ should appear. 
Perkins v. Meaeher, 1 D. P. C. 21 ; and see Baker v. Davenport, 
8 D. & P. 606. Where a party in custody under a writ of 
ca. sa. was too ill to be removed without endangering his life, 
the Court enlarged the time for the return, but could afford the 
sheriff no relief for the extra costs of keeping up the caption. 
Jones v. Robinson, 11 M. & W. 758 ; 12 L. J. Ex. 415. Where 
a return to a latitat stated that the defendant was insane and 
could not be removed without great danger and continued so until 
the return of the writ, it was held, that an attachment would 
not lie against the sheriff. Cavenagh v. Collctt, 4 B. & A. 279. 
If the sheriff cannot execute the writ on account of some 
privilege enjoyed by the defendant or the like, he returns the 
fact specially. A return of an escape would appear to be bad ; 
see 14th ed. Chit. Arch. p. 899. 

The Court will not set aside the sheriff's return tcf a writ of 
capias on an affidavit denying the truth of the return and 
charging collusion with the defendant. Goubot v. De Crony, 
2 D. P. C. 86 ; 2 L. J. (N. S.) Ex. 207. 

In an action against the sheriff for a false return to a ca. sa., 
it is not necessary to aver in the declaration that he had notice 
from the plaintiff that the defendant was within his bailiwick so 
that he might arrest him. Hereford (Bean, 8fc.) v. Macnaniara, 
5 D. & P. 95. And see as to action for a false return, Hotcden 
v. Standish, 6 D. & L. 312 ; 6 C. B. 504 ; 18 L. J. C. P. 33. 

Where one sheriff has made a special return to a writ of capias 



RETURN OF WRITS. 201 

the Court will not compel his successor to make another, the to return 

circumstances remaining unaltered. Pasmore v. Wilkinson, 3 writs - 

D. P. C. G35. Where a ca. sa. has been sued out and the parties After compro- 

subsequently compromise, the Court will not compel the sheriff ^^' (XJi 

to return the writ, although he has been ruled to do so by the 

plaintiff's attorney, without whose consent the compromise has 

been effected. Hedges v. Jordan, 5 D. P. C. 6. It is irregular Who entitled 

that a defendant should, without the plaintiff's authority, rule to rule - 

the sheriff to return a ca. sa. which has not been executed, but 

such proceeding is not in itself a contempt of process of the 

Court. Daniels v. Gompertss, 3 Q. B. 322; 2 G. & D. 751. 

The Court will not assent to an application on the part of the 

defendant against a sheriff to return a ca. sa. issued against him 

unless he shows some special grounds for the application. 

Williams v. Webb, 2 Dowl. N. S. 904 ; 5 Scott, N. E. 901 ; 

7 Jur. loo. 

" A return that the defendant is sick, in prison, or a lunatic Where new 
is good ; but if the sheriff go out of office, and a new sheriff be pSdTe'fore 
appointed before the return, the return should be made in the return - 
name of both ; by the old sheriff that he delivered the body to 
the new sheriff, by the new sheriff, languidas." 2nd ed. Watson 
on Sheriffs, p. 238. 

A return in these words " I had not at the time of receiving Insufficiency 
this writ, nor have I since had the body of A. B. detained in of return " 
my custody, so that I could not have her," &c. is a bad return, 
and an attachment was granted against the party who made it! 
Rex v. Win ton, 5 T. E. 89. 



Forms of Return. 
1. Return of Cepi Corpus. 

I have taken the within -named whose body I have ready 

as I am within commanded. ' 

The answer of esquire sheriff. 

2. Return of Non est inventus. 
The within-named is not found in my bailiwick. 

The answer of esquire Sheriff. 



202 AEEEST. 



3. Return of Cepi Corpus as to one Defendant, and Non est inventus 

as to another. 

I have taken the within-named whose body I have ready, 

as I am within commanded : but the within-named is not 

found in my bailiwick. 

The answer of esquire sheriff. 



4. Return of Cepi Corpus {bail taken). 

On the day of 18 1 took the within-named in 

my bailiwick and him safely kept until he gave me bail as within 
I am commanded. 

The answer of esquire sheriff. 

5. Return of Cepi Corpus {security given). 

On , I took the within-named in my bailiwick, and 

him safely kept until he deposited in Court the sum of £ [or 

" gave to the plaintiff a bond executed by him and two sufficient 
securities in the penalty of £ " or set out the security given, 

and the plaintiff'' s consent to it], byway of security that he would not 
go out of England without leave of the Court, as by this order 
required, as I am within commanded. 

The answer of esquire sheriff. 

6. Return of Cepi Corpus {defendant in prison). 

On , I took the within-named and for the purpose 

within mentioned, whose body remains in the prison of our lady 
the Queen, under my custody. 

The answer of esquire sheriff. 

7. Return of Cepi Corpus to Writ of Ca. Sa. 

) I esquire sheriff of the said county do humbly certify 

to wit. ) and return to [name of Judge by ichom icrit signed] Her 
Majesty's Judge mentioned in the writ to this schedule annexed, that 
the said in the said writ named was taken on the day 

of 18 and in Her Majesty's gaol in and for the said county 

at is detained under my custody, by virtue of a writ of capias 

ad satisfaciendum, the tenor of which said writ follows in these 
words "Victoria, &c." [setting forth the writ and all indorsements 
thereon verbatim'] And this is the cause [or " causes "] (g) of taking 



(//) In case of the prisoner being detained by several writs, all the 
writs should be set out in the return in like manner. If the prisoner was 
taken in the late sheriff's time, the above form would do, but it is better 
to state that the prisoner was taken by the late sheriff, and after setting 
out the writ, ' ' which said writ and the custody of the body of the said 
was duly assigned transferred and delivered over to me by the 
said late sheriff at his going out of office." Watson on Sheriffs, 2nd ed. 
p. 476, n. 



FORMS OF RETURN. 

the said which together with his body I have ready as by the 

said writ I am commanded. 

The answer of esquire sheriff. 



8. Return of Cepi Corpus and Discharge out of Custody. 

I have taken the within-named and committed him to the 

common gaol of our Lady the Queen at there to be kept 

in safe custody so that I might have his body before the justices of 
Her Majesty's High Court of Justice Division at Westminster 

as within I am commanded. And I do hereby further certify and 
return that afterwards, that is to say on the day of 

a.d. 18 by command of a certain other writ of our Lady the 
Queen to me directed and delivered, a transcript whereof is annexed 
to this writ, I caused the said to be delivered from that prison, 

and therefore the body of the said before &c. at the day and 

place within contained I cannot have as within I am commanded. 

The answer of &c. 



9. Return of prior removal by Habeas Corpus. 

By virtue of this writ to me directed I did on the day 

of take the within-named and did safely keep him in Her 

Majesty's prison in and for the county of until afterwards, to 

wit on &c. I received Her said Majesty's writ of habeas corpus cum 
causa commanding me to have the body of the said before 

at immediately after the receipt of that writ : By virtue of 

which said writ on the day and at the place therein mentioned I 
had the body of the said before &c. who then received of me 

the body of the said and then committed him to the Queen's 

prison [or as the case may oe] and then wholly discharged me from 
further keeping him under my custody : wherefore I cannot have 
the body of the said before our said Lady the Queen at the 

day and place within contained as within I am commanded. 

The answer of &e. 



10. Return of Languidas. 

By virtue of this writ to me directed, I took the within-named 
at a dwelling-house, situate in the parish of , in my 

county, but the said was then so sick and ill, and in so weak, 

infirm and debilitated a state, that he could not be taken or removed 
from the said dwelling-house, to the common gaol of my said 
county, without great peril and danger of his life : and the said 
for the cause aforesaid, was kept and remained and con- 
tinued, and still is kept and remains and continues, in my custody 
in the said dwelling-house, so sick and ill, and in such a weak, 
infirm and debilitated state as aforesaid, that I cannot, without 
peril and danger of his life, have the body of the said before 

our said lady the Queen in the Division of the High Court of 

Justice as I am within commanded. 

The answer of esquire sheriff. 



203 



201 ARREST. 

11. Return of .Rescue. 

By virtue of this order to me directed, I made my warrant in 
writing, under my seal of office, to and my bailiffs, 

jointly and severally to take and arrest the within-named : 

by virtue of which warrant the said and afterwards, 

on , at , in my county, and within my bailiwick, took 

and arrested the within -named according to the exigency of 

the said order, and safely kept him in their custody until 
of , and other persons to me and my said bailiffs unknown, 

on , at aforesaid, with force and arms assaulted and 

ill-treated my said bailiffs, and the said out of the custody of 

my said bailiffs then and there rescued, and the said then and 

there with force and arms rescued himself, and escaped out of the 
custody of my said bailiffs, against the peace of our lady the Queen: 
and afterwards the said is not to be found in my bailiwick. 

The answer of esquire sheriff. 

12. Return to Ca. Sa. that Defendant teas a Member of Parliament 
on its Dissolution, and that Forty Days since the Dissolution 
have not elapsed. 

I certify and return to our lady the Queen in the Division 

of the High Court of Justice, that the within-named before 

and at the time of the dissolution of the last Parliament of the 
United Kingdom of Great Britain and Ireland, was a member of 
the House of Commons of the said Parliament and served as such, 
and was entitled to his privilege of Parliament ; and I further 
certify and return that this writ was delivered to me after the said 
dissolution, and that forty days since the said dissolution have not 
yet elapsed, and the said continuing to have his privilege of 

Parliament and freedom from arrest and imprisonment on civil 
process, I cannot have his body before Her Majesty in the said 
Division of the High Court of Justice, at the time and place 
within-mentioned, as I am within commanded. 

The answer of sheriff. 

13. Return of Mandavi Ballivo. 

By virtue of this writ to me directed, I made my mandate to the 
bailiff of the liberty of in my county, to take and arrest the 

within-named which said bailiff hath the full return of all 

writs and processes, and the execution of the same within the 
liberty aforesaid, so that no execution of this writ can be made by 
me within the said liberty, which said bailiff hath returned to me 
" that he hath taken the within-named whose body he hath 

ready " \_or " that the within-named is not found in his baili- 

wick"] : And I further certify that the said is not found in 

my bailiwick. The answer of sheriffi 

14. Return to Ne Exeat Regno. 

I have caused the within-named corporally to come before 

me, and he found bail in the penalty of £ according to the 

command of the within writ. The answer of sheriff- 



INCIDENTAL. 205 



Incidental. 



See, as to excuse for non-compliance with the writ of habeas Non-compli- 
corpus, Reg. v. Barnardo, Re Tye (Xo. 1), 23 Q. B. D. 305 ; 53 a T with 

_ ■* _ ' * _ ' _ v ' habeas corpus. 

L. J. Q. B. 5o3 ; 24 Q. B. D. 283 ; affirmed with variations, 
H. L., W. N. (1892) 132 ; Barnardo v. Ford, [1892] A. C. 326 ; 
61 L. J. Q. B. 728; 67 L. T. 1. And as to production of 
corpus, see In re Thompson, Reg. v. Wooda-ard, 5 T. L. R. 
565, 601. 

If disregard is shown to a habeas corpus at common law, an Attachment 
attachment will he immediately granted. Ex parte Boson, 2 ^en^eto 6 " 
Ld. Ken. 289. As to an appeal against an order for attach- habeas corpus, 
ment for disobedience to a writ of habeas corpus, see Reg. v. an appeaL 
Barnardo, Re Tye (No. 1), ante; although see also O'Shea v. 
0' Shea, 15 P. D. 59 ; 59 L. J. P. 47 ; 38 W. R. 374, C. A. ; 
where Reg. v. Barnardo, ante, distinguished. 



Fees. 
See under title " Sheriffs' Fees," Chap. XXXI., post, p. 505. 



206 



Chapter XIIT. 

WRITS OF VENIRE FACIAS AND DISTRINGAS (PROCESS IN 
CONNECTION WITH INDICTMENTS). 

PAGE 

Introductory 206 

Forms of Writs 207 

Execution of Writs 208 

Fees - 210 



Process in 
connection 
with indict- 
ments. 



Venire facias, 
when issued. 



Subpoona to 
answer. 



Introductory. 

In relation to the process directed to sheriffs in connection with 
indictments, see Crown Office Rules, 1886, it. 83 — 98 (Appear- 
ance to Indictment, Information and Requisition), from which 
it will be observed that such consists of (1) Writ of Venire 
Facias (rr. 94, 98) ; (2) Writ of Attachment (r. 95) (a) ; 
(3) Writ of Distringas (rr. 96, 98) ; and (4) Capias ad respon- 
dendum (r. 97) (a). Distringas is also used against inhabitants, 
after conviction, for not repairing a highway. And see in 
relation to indictments under titles " Recovery of Fines, Penal- 
ties, &c," " Writ of Abatement," and " Writ of Restitution," 
post, pp.211, 213,232. 

" When any indictment has been found in, or removed into 
the Queen's Bench Division at the instance of the prosecutor, 
or of one or more of several defendants, the prosecutor may, 
instead of applying for a warrant under rules 85 — 87, issue 
a writ of venire facias against such defendants as are not parties 
to the removal of the indictment, or defendants under recog- 
nizance to answer, or in the case of an information, may issue 
either a subpoena to answer, or a venire facias if it is intended to 
proceed to outlawry." C. O. R., 1886, r. 94. 



(a) As to which, see under title " Arrest," ante, p. 154. 



INTRODUCTORY. 207 

" If a defendant fails to appear within four days after the Distringas, 
sheriff has returned to the Court on the venire facias that he has 
summoned the defendant, the prosecutor may issue a writ of 
distringas:' lb. r. 96. 

" The j>rocess against a body corporate or inhabitants of a Process 
county, borough, parish, or place, to compel an appearance -^^ corpo . 
shall be by writs of venire facias and distringas. If such de- rate, &c. by 

.'. i i •/>> venire facias 

fendants do not armear within four days after the sheriff has and distringas. 
returned that he has distrained the defendants' land and 
chattels, alias and pluries writs of distringas may be issued with 
such increased amounts upon each succeeding writ as the Court 
or a judge may order." lb. r. 98. 

As already intimated, the writ of distringas is also used Distringas for 
against inhabitants, after conviction, for not repairing a high- highway."" ° 
way. 

As to venire facias and distringas in relation to outlawry, see Venire facias 
C. 0. Bi. 99 and 100, ante, p. 34, and under title " Outlawry," i n relation to 

post, p. 229. outlawry. 



Forms of Writs. 
1. Writ of Venire Facias, to answer (Form No. 52, C. 0. R. 1886). 

Victoria, by the Grace of God, &c, to the Sheriff of 
greeting : We command you that you cause to come before Us 
in the Queen's Bench Division of Our High Court of Justice, at 
the Royal Courts of Justice, London, on the day of , 

18 , A. 13., to answer to Us for certain misdemeanors whereof he 
is indicted, and have you then there this writ. 

Witness, &c. 

This writ was issued by, &c. 

2. Writ of Distringas, to answer (Form No. 56, C. O. E. 1886). 

Victoria, by the Grace of God, &c, to the Sheriff of 
greeting : We command you that you distrain A. B. by all his 
lands and chattels in your bailiwick, so that neither he nor any 
one for him do put his hands to the same, until you shall have 
another command from Us for that purpose. And that you answer 
to Us for the issues thereof, so that you may have him before Us 
in the Queen's Bench Division of Our High Court of Justice 
at the Royal Courts of Justice, London, on the day of , 

18 , to answer to Us for certain whereof he is indicted or 

impeached], and to hear his judgment for his many defaults, and 
have you then there this writ. 

Witness, &c. 



208 WRITS OF VENIRE FACIAS AND DISTRINGAS. 

3. Writ of Distringas against Inhabitants after Conviction for not 

repairing a Highway (Form No. 146, C. 0. E. 1886). 

Victoria, by the Grace of God, &c, to the Sheriff of , 

greeting : Whereas some time ago, that is to say, on, &c, at, 
&c, before &c. [recite the caption and the indictment^, which 
said indictment We did afterwards, for certain reasons, cause 
to be brought before Us in the Queen's Bench Division of the 
High Court of Justice to be determined according to the law 
and custom of England. And whereas afterwards such pro- 
ceedings were had in Our said Court before Us on the said indict- 
ment, that the inhabitants of the said by a certain jury 
of the country taken between Us and the said inhabitants [or 
by their own default] stand convicted of the nuisances above 
mentioned and specified and charged upon them in the indict- 
ment aforesaid, in manner and form as in and by the said indict- 
ment is above alleged against them. And whereas thereupon it 
has been considered and adjudged by Our said Court before Us 
that the said inhabitants of should be distrained for the 
nuisances aforesaid, as in Our said Court before Us it appears 
upon record. We therefore command you that you distrain the 
inhabitants of the parish aforesaid in your said county by all their 
lands and chattels in your bailiwick, so that neither they nor any 
one for them do put their hands to the same until you shall have 
another command from Us for that purpose. And that you answer 
to Us for the issues thereof, so that they, the inhabitants of the 
said parish, may, at their own proper costs and charges, well and 
sufficiently repair and amend that part of the said common and 
ancient Queen's highway so out of repair as aforesaid, if before 
it shall not be repaired and amended by them. And how you 
shall execute this Our writ make known to Us in Our said last 
mentioned Court immediately after the execution thereof. And 
have then there this writ. 

Witness, &c. 

4. Writ of Supersedeas to Distringas (Form No. 171, C. 0. E. 1886). 

Victoria, by the Grace of God, &c, to the Sheriff of , 

greeting : Whereas A. B. has appeared in the Queen's Bench 
Division of Our High Court of Justice to an indictment against 
him for certain misdemeanours [_or felonies]. We therefore com- 
mand you that you wholly supersede the distraining or otherwise 
molesting any longer the said A. B. on account of the premises 
aforesaid. And if you have distrained the said A. B. that then 
you do without delay deliver or cause to be delivered to him that 
which you have so distrained, if he be thereby distrained for the 
reasons aforesaid and no other, and this you are not to omit. 

Witness, &c. 



Execution of Writs. 

Venire facias. 
Summoning The writ of venire facias is delivered to the sheriff for execu- 
return am tion in the usual way. It is the sheriff's duty to summon the 



EXECUTION OF WRITS. 209 

party upon the venire ; and he returns to the writ accordingly, 
or that the party has not any goods in his (the sheriff's) baili- 
wick by which he can be summoned. 

As to order to return writ, see C. 0. R. 1886, r. 233, and Order to 

return 

under title " Liability and Rights of Sheriff" and Remedies 
against Sheriff," post, pp. 494 et seq., in reference to attachment 
against the sheriff for omitting to return writ. 

When a defendant, not under recognizance, receives a sum- Entry of ap- 
mons from the sheriff upon the venire, his solicitor may enter an ^fendantby 
appearance for him at the Crown Office. solicitor. 



Distringas. 

As to the mode of executing this writ, the following quotation 
from Watson on Sheriff Law respecting Distringas in the old 
process in real actions may be taken as more or less still applic- 
able : — " The sheriff may distrain either the moveable goods of 
the defendant (b) or the issues [proceeds of a distress] of his 
land ; and for this purpose he issues his warrant to two bailiffs 
who are to execute the distringas. The sheriff may either keep 
the goods so distrained, or take money, or an obligation for the 
appearance of the defendant or tenant, according to the exigency 
of the writ. The return of the sheriff is, that he has distrained Return. 
the defendant by his lands and chattels, to which he adds the 
amount of the issues and the names of the manucaptors (c). 
The issues returned must be reasonable. Where the sheriff 
returned niandari ballivo without also returning that the defen- 
dant had no issues in his bailiwick, the return was bad, and the 
sheriff was amerced." For forms of return, adapt those given 
by Watson. 

As to order to return writ, see C. 0. R. 1886, r. 233 ; and Order to 
under title " Liability and Rights of Sheriff and Remedies return - 
against Sheriff (Attachment against the Sheriff for omitting to 
return Writ, &c.)," post, pp. 494 et seq. 

On the defendant entering an appearance to the writ of Supersedeas to 
distringas, a supersedeas may be issued to the distringas, as to 
the form of which see Form No. 4, ante, p. 208. Other writs of a and other 

writs. 



(/)) The sheriff levies 40s. upon the goods of the defendant. 
(') Or that the defendant has not any goods in his bailiwick. 
M. I> 



210 



WRITS OF VENIRE FACIAS AND DISTRINGAS. 

like nature must be superseded in the same way on the defen- 
dant doing that which the writ was issued to compel. The form 
of the writ of supersedeas must be altered to suit the particular 
case. 



Fees. 
See under title " Sheriffs' Fees, &g." post, p. 505. 



211 



Chapter XIV. 

WRIT OF ABATEMENT OR DE NOCUMENTO AMOVENDO. 

PAGE 

Introductory --------- 211 

Form of Writ 211 



Introductory. 

The writ of abatement (de nocumento amovendo) is issued where 
a defendant is indicted and convicted for obstructing a highway, 
or for other nuisances. It sets out that the defendant has been 
adjudged and ordered to pay a fine for the nuisances charged 
against him, and directs the sheriff to remove, or cause to be 
removed, the obstruction or other nuisance. 



Form of Writ. 

Writ of Abatement or Nocumento Amovendo (Form No. 147, C. 0. E. 

1886). 

Victoria, by the Grace of God, &c, to the Sheriff of , 

greeting : "Whereas, on the day of , at , &c. 

[recite the caption of the indictment and the indictment]. Which 
said indictment AVe afterwards, for certain reasons, caused to be 
brought before Us in the Queen's Bench Division of Our High 
Court of Justice, to be determined according to the law and custom 
of England. And whereas thereupon afterwards, that is to say, at 
the assizes holden at in and for the county of on the 

day of 18 , before and , justices, &c, 

upon tho trial of the issue joined between Us and the said E. AV., 
he the said II. W. was in due manner convicted of the matters con- 
tained in tho said indictment, in manner and form as in and by the 
said indictment was alleged against him, as in tho said Queen's 
Bench Division before Us it more fully appears upon record. 
AVhereupon on the day of 18 , it was adjudged and 

ordered by Our said Court before Us that the said E. AV. for the 

i>2 



212 WRIT OF ABATEMENT OR DE NOCUMENTO AMOVENDO. 

nuisances aforesaid charged upon him by the said indictment, 
whereof he was so convicted as aforesaid, should pay a fine of 
And that such nuisances should be abated as in Our said Court 
before Us it also appears upon record. We therefore command 
you that the said , so erected and built upon the said highway 

at the parish of in the said county of and so as afore- 

said continued as in the said indictment mentioned, you do without 
delay remove, or cause to be removed, and how you shall execute 
this Our writ make known to Us in Our said Court immediately 
after the execution thereof, and have then there this writ. 
Witness, &c. 



213 



Chapter XV. 

RECOVERY OF FINES, PENALTIES, ETC. 

PAGE 

I. Fines on Indictments and Penalties on Affirmance of 

Conviction ------- 213 

Forms of Writs - - - - - - 214 

Execution of Writs 216 

Forms of Warrants 216 

Forms of Returns 217 

Fees 217 

II. Sessions and Assize Fines, Estreats, Sfc. - - - 218 
Execution ------- 221 

Form of Writ 222 

Forms of Warrants 222 

Fees 223 

III. Customs and Excise Penalties 223 



I. Fines on Indictments and Penalties on Affirmance of 

Conviction. 

With regard to indictments removed into the Queen's Bench Indictments 
Division, in the event of a fine being imposed and the defendant Q uee n's 
not being: committed to the Queen's prison or ordered to be 5? n p^ 

.Division 

further imprisoned until its payment, then (on the authority of 
R. v. Templan, 1 Salk. 56, and Duke's Case, 1 Salk. 400) a capias 
j)ro fine may, it seems, be issued for the enforcement of such fine, 
or (on the authority of 11. v. Woolf, 2 B. & Aid. 609) its re- 
covery may be enforced by a fieri facias, or writ of levari 
. facias (a) . (See Forms of Fi. Fa. for fine and Levari facias, 
Nos. 145 and 143, C. 0. E. 1886, pod, p. 214 ; as also, with 
regard to Levari facias, No. 142.) 

(<i) It will be observed that the -writ of levari facias was abolished by 
the Bankruptcy Act, 1883, s. 140 (2), in any civil proceedings. 



214 



RECOVERY OF FINES, PENALTIES, ETC. 



Indictments 
against in- 
habitants for 
non -repair of 
highway. 



Process on 
affirmance of 
conviction. 



A writ of distringas may be issued against inhabitants for 
conviction for not repairing a highway (see Form No. 146, 
C. 0. R. 1886, ante, p. 208), and they may, it seems, be con- 
tinuously distrained till its repair [b) ; or a writ of levari facias 
may be issued against inhabitants, &c, upon conviction and 
fine in respect of such disrepair. (See Form No. 143, 0. 0. R. 
1886, infra.) Moreover, a body corporate may, it seems, be 
similarly dealt with, when found guilty of an offence other 
than the non-repair of a highway. (See Short & Mellor's Crown 
Office Practice, at p. 237.) 

On affirmance of conviction of justices, the process to recover 
the penalty is by levari facias. (Forms Nos. 149 and 150, 
C. 0. R. 1886, post, pp. 215, 216.) 



Forms of Writs. 
1. Writ of Fieri Facias for a Fine (Form No. 145, C. 0. E, 1886). 

Victoria, by the grace of God, &c, to the Sheriff of , 

greeting : We command you that of the goods and chattels, lands 
and tenements of A. B., you cause to be levied pounds, im- 

posed upon him in the Queen's Bench Division of Our High Court 
of Justice before him for his fine, for certain whereof he is 

impeached [or indicted], and thereupon, by a certain jury of the 
country [or by his own default, or confession], he stands convicted, 
as in Our Court before Us it appears upon record. And that you 
have the said money before Us in Our said Court immediately after 
the execution thereof, to satisfy Us for the said fine. And that you 
then have there this writ. Witness, &c. 

2. Writ of Levari Facias against Inhabitants, S,'c, upon Conviction 
and Fine (Form No. 143, C. 0. R. 1886). 

Victoria, by the Grace of God, &c, 

To the Sheriff of , greeting : 

Whereas sometime, that is to say, on the day of 

18 , at [the assizes, &fc. Here recite the caption of the indictment] 
by the oath of twelve jurors, good and lawful men of the said 
county of then and there sworn and charged to inquire for 

Us and the body of the said county. 

It was presented as follows, that is to say : 
[Set out the indictment] 
Which said indictment wo afterwards, for certain reasons, caused 
to be brought before Us, to be determined, according to the law 
and custom of England, and such proceedings were thereupon had 
in Our Court before Us, upon the said indictment, that the 
inhabitants of the said parish of by a jury of the country, 



(b) Seo under title " Distringas" ante, p. 206. 



FINES OX INDICTMENTS, ETC. 215 

taken between Us and the said inhabitants, stand convicted of the 
trespasses and nuisances above specified, and charged upon them, 
in and by the said indictment in manner and form as in and 1 >y 
the said indictment is alleged against them ; and whereas it has 
thereupon been considered and adjudged in the Queen's Bench 
Division of Our High Court of Justice before Us, that the in- 
habitants of the said parish, for their offences aforesaid, should 
pay a fine of £ of lawful money of Great Britain, [according 

to the order of Court for fine\ and that such fine should be paid 
into the hands of of to be by him applied, pursuant to 

the directions of the statute, in sucb case made and provided, as in 
Our said Court, before Us, it appears upon record. We therefore 
command you that of the goods and chattels, lands and tenements 
of the said inhabitants of the said parish of you levy, and 

cause to be levied, the said sum of £ being the fine so 

imposed upon them, in Our said Court, before Us, for their said 
offences whereof they are indicted and convicted, as aforesaid, and 
that you pay the said fine, when levied, into the hands of the said 
, to be by him applied to the repair of the said several high- 
ways, so as aforesaid, in decay and out of repair, pursuant to the 
directions of the statute, in such case made and provided ; and how 
you shall have executed this Our writ, make known to Us in Our 
said last-mentioned Court immediately after the execution thereof. 
And have then there this writ. 

Witness, &c. 

This writ was issued by 



3. Writ of Levari Facias on conviction affirmed (Form No. 149, 
C. 0. E. 1886). 

Victoria, by the Grace of God, &c. 

To the Sheriff of , greeting : 

Whereas I. G. was heretofore, to wit, on the day of 

18 , at , on the complaint of , convicted by and 

before [here recite the conviction]. And whereas the said I. G. 
having appealed to the then next General Quarter Sessions of Our 
Peace, holden at in and for Our said county of , against 

the record of the said conviction, the same was by the Court of 
General Quarter Sessions aforesaid, rectified and confirmed. And 
whereas the said record of conviction, and the proceedings had 
thereon as aforesaid, were afterwards, by virtue of Our writ of 
Certiorari issued in that behalf brought before Us in the Queen's 
Bench Division of Our High Court of Justice that We might cause 
further to be done thereon what of right and according to the law 
and custom of England, We should see fit to be done, as appears to 
Us of record. And thereupon it was considered and adjudged by 
Our said Coui't before Us that the said record of conviction, and 
also the said order so made by the said Court of Quarter Sessions 
as aforesaid, should be affirmed, as in Our said Court before Us it 
also appears on record. We therefore command you, that of the 
goods and chattels, lands and tenements of the said I. G. in your 
bailiwick you cause to be Levied the sum of so adjudged to 

have been forfeited as aforesaid by the said I. G.. and that 3-ou 
have the said money before Us in Our said Court at the Koyal 



216 EECOVERY OF FINES, PENALTIES, ETC. 

Courts of Justice, London, immediately after the execution of this 
Our writ to go and be applied according to the directions of the 
statute in such case made and provided. And have then there this 
writ. 

Witness, &c. 

[To be indorsed by order of Court. ~\ 

4. Second Writ of Levari Facias on Conviction affirmed for residue 
where part Levied (Form No. 150, C. 0. E. 1886). 

Victoria, by the Grace of God, &c. 
To the sheriff of , greeting : 

Whereas [here write the conviction as in the first writ (No. 3), and 
the first writ and return]. As by the return of the [then'] sheriff 
to the said writ of levari facias in Our said Court before Us, it also 
appears upon record. We therefore command you that of the goods 
and chattels, lands and tenements of the said in your baili- 

wick, you cause to be levied the sum of residue of the said 

sum of so adjudged to have been forfeited as aforesaid, by the 

said , and that you have the said sum of , residue of the 

said sum of , before Us in Our said Court at the Royal Courts 

of Justice, London, immediately after the execution of this Our 
writ to go [Sfc, as in No. 3]. 



Execution of Writs. 
The writ of fieri facias for fine is executed similarly to an 
ordinary writ of fieri facias. See, therefore, under title " Writ 
of Fieri Facias" ante, p. 51. See also under that title for 
general guidance as to execution of writ of levari facias. 



Forms of Warrants. 

1. Warrant on Levari Facias ayainst Inhabitants, fyc, upon Convic- 
tion of Fine. 

— to wit : esquire, sheriff of the said county to my 

bailiff greeting. By virtue of a writ of our Sovereign Lady the 
Queen to me directed and delivered bearing date the day 

of in the year of our Lord one thousand eight hundred and 

ninety I command you that you cause to be levied of the 

goods and chattels, lands and tenements in my bailiwick of the 
inhabitants of the parish of the sum of £ being the fine 

so imposed upon them by virtue of [here set out particulars of the 
fine, Sfc. in question according to reference thereto given in the writ] 
so that I may pay the same into the hands of as therein 

commanded. And in what manner you shall have executed this 
warrant certify to me immediately after the execution thereof. 
Given under the seal of my office this day of 189 . 

By the sheriff, 

(Seal of Office.) 



FINES ON INDICTMENTS, ETC. 217 

2. Warrant on Levari Facias on Conviction affirmed. 

[Same as in preceding form to the ivord "bailiwick" and then 
continue thus : — ] of of the sum of £ therein 

adjudged to have been by him forfeited [here set out particulars 
respecting the forfeiture in question according to reference thereto given 
in the writ] so that I may have the said money as I am therein com- 
manded. And in what manner you shall have executed this 
warrant certify to me immediately after the execution thereof. 

Given under the seal of my office this day of 189 . 

By the Sheriff 

(Seal of Office.) 

3. Warrant on Second Writ of Levari Facias on Conviction affirmed 
for Residue where Part levied. 

[Adapt last preceding form of warrant.] 



Forms of Returns. 

1. Form of Return to Writ of Levari Facias against Inhabitants, Sfc. 

upon Conviction and Fine. 

By virtue of this writ to me directed I have caused to be levied 
of the goods and chattels, lands and tenements of the within named 
inhabitants of the parish of the sum of £ I further 

certify that I have paid the said fine so levied into the hands 
of of as I am within commanded. 

The answer of Esq. Sheriff. 

2. Form of Return to Writ of Levari Facias on Conviction affirmed. 
By virtue of this writ to me directed I have caused to be levied 

of the goods and chattels, lands and tenements of the within named 
of the sum of £ which sum I have ready at the 

place within mentioned as I am within commanded. 

The answer of Esq. Sheriff. 

[or] 

The within named of has no goods or chattels, lands 

or tenements in my bailiwick whereof I can cause to be made 
£ within mentioned or any part thereof as I am within com- 

manded. 

The answer of Esq. Sheriff. 

3. Form of Return to Second Writ of Levari Facias on Conviction 

affirmed for Residue where Part levied. 
[Adapt latter forms of return.] 



Fees. 
See under title "Sheriffs' Fees, &o.," post, p. 505. 



218 



RECOVERY OF FINES, PENALTIES, ETC. 



Recovery of 
sessions fines, 
&c. governed 
by 3 Geo. 4, 
c. 46, and 
4 Geo. 4, 
c. 37. 

Copy of roll 
of fines and 
writ to be 
sent to sheriff. 



Appeal upon 
giving 
security. 
Discharge of 
sheriff, &c. 



Return of 
writ and in- 
dorsement of 
roll. 



Sheriff's 
penalty for 
non-perform- 
ance or 
negligence. 



Sheriff to de- 
tain original 
writs. 



Issue of 
warrant by 
one sheriff to 
another. 



II. Sessions and Assize Fines, Estreats, &c. 

The recovery of quarter sessions fines, &c. is governed by 
3 Geo. 4, c. 46, " An Act for the more speedy return and 
levying of fines, penalties, and forfeitures, and recognizances 
estreated," and by the amending Act of 4 Greo. 4, c. 37. 

By 3 Geo. 4, c. 46, s. 2, statements of fines, &c. are to be 
certified to the clerk of the peace by the justice by whom such 
fine, &c. is imposed, and the clerk of the peace is to copy on a 
roll such fines, &c. at quarter sessions, and send a copy of such 
roll, with writ of distringas (e) and capias (d), or fieri facias (e) 
and capias (d) to the sheriff (/) within the time fixed by the 
Court and not exceeding twenty-one days after the adjournment 
of the Court. 

By sect. 5, persons may appeal to quarter sessions against 
fines, &c. upon giving security to the sheriff or his officers. 

By sect. 6, any order made under such appeal to discharge 
forfeited recognizances, &c. is to be a sufficient discharge to the 
sheriff or his officers on the passing of his accounts ; and see on 
this Hayncs v. Hat/ton, 7 B. & C. 293 ; Ex parte Fellow, M'Cle. 
Ill ; Rex v. Hankins, M'Cle. & Y. 27, as stated per curiam in 
R. v. West Riding J J., In re Dr. Thornton, 7 A. & E. 590. 

By sect. 8, the sheriff is to return the writ to quarter sessions, 
and indorse on the roll what has been done in the execution of 
the process, which return, &c. shall be forwarded by the clerk of 
the peace to the Treasury. 

By sect. 10, the clerk of the peace and other officers shall be 
entitled to their usual and legal fees on the discharge of any 
forfeited recognizance, and the sheriff is made liable to a penalty 
of 50/. recoverable as therein mentioned for non-performance or 
negligent performance of his above duties. 

By 4 Geo. 4, c. 37, the sheriff is to detain the original writs 
in his possession, which shall continue in force and be his autho- 
rity to act upon. 

By sect. 3, where a person, subject to fines, &c. resides in 
another county, or has removed, the sheriff may issue his 
warrant to the sheriff acting for the place where the defaulter 



206. 



(c) See under title " Writ of Distringas,'''' ante, \>. 
(il) See under title "Arrest," ante, p. 154. 
(<■) Sue under title "Writ of Fieri facias" ante, p. 51. 
(/) The form in the Schedule to 22 & 23 Vict. c. 21, is substituted 
for that in Schedule A. to above Act, see post, p. 222. 



SESSIONS AND ASSIZE FINES, ESTREATS, ETC. 219 

resides, or where Lis goods are found, requiring him to execute 
the writ. 

By sect. 5, clerks of the peace are to send to the Treasury Copy of rolls 
within twenty days from the opening of the quarter sessions a Treasury. 
copy of the rolls delivered by the sheriff ((/). 

The contents of the roll is continued quarterly at the quarter Warrants to 
sessions, and the sheriff re-issues his warrants to his officers for f or g neg &c _ 
the recovery of the fines, &c. which have not been duly levied not duly 

levied «5cc. 

or recovered or properly accounted for or have not been dis- 
charged on appeal, and until the Commissioners of the Treasury 
direct a discontinuance in default of goods whereon to levy or 
the lodging in gaol of the defaulter. 

The sheriff is not, with respect to the roll of fines sent to him Sheriff not to 
by the clerk of the peace pursuant to 3 Geo. 4, c. 46, merely already^paid. 
a ministerial officer — his duty is to levy only such of the fines 
as have not been paid. Accordingly, the sheriff is not to act 
on such roll and levy the amount thereof, if he has received the 
fine himself. Wildes v. Morris, 16 Jur. 1115; 22 L. J. M. C. 
4 ; and see Beg. v. The Justices of Ely, 25 L. J. M. C. 1 ; 5 
E. & B. 489. 

It may be mentioned that, in the case of the City of London, Secondary to 
the secondary must hand over the proceeds of estreats of fines, t^City™ 066 8 
&c. to the City solicitor as the City bailiff. solicitor. 

Assize process is regulated by 22 & 23 Yict. c. 21, "An Act to Recovery of 
regulate the office of Queen's Kemembrancer, and to amend the SJ^^med 
practice and procedure of the Revenue side of the Court of b 7 — & 23 
Exchequer," the provisions of which Act are, it will be ob- 
served, similar to the foregoing. By sect. 32 of 22 & 23 Vict, 
c. 21, clerks of assize are required to estreat " fines, issues, 
amerciaments, penalties, and recognizances set, lost, imposed, 
or forfeited " into the Exchequer, and shall copy on a roll such Copy of roll 
fines, &c, " together with the names and residences, trades, °^ s e , s / t fo' bc 
professions, or callings of the parties, and distinguish such as sent to sheriff , 
have been paid, and send a copy of such roll, with a writ, 
according to the form and effect in the schedule to this Act, to 
the sheriff, bailiff, or officer of the county, city, borough, or 
place having execution of process therein in which the parties 
liable to the payment of such fines, issues, amerciaments, 

(g) Sect. 1 of 4 Geo. 4, c. 37, from "and such sheriff, bailiff, or other 
officer La hereby authorized and required on quitting hia office" to "duly 
authorize to pass the same," and sect. 1, are repealed by the Sheriffs 

Act, 1887 (50 & 51 Vict. c. 55). 



220 EECOVERY OF FINES, PENALTIES, ETC. 

and to be penalties, and recognizances are stated to be resident, and such 
kvy or take C0 Py an d writ shall be the authority to such sheriff, bailiff, 
into custody. or officer f or proceeding to the immediate levying and recover- 
ing of such fines, issues, amerciaments, penalties, and recog- 
nizances on the goods and chattels of such parties, or for 
taking into custody their bodies in case sufficient goods and 
chattels be not found whereon distress can be made for recovery 
Persons taken thereof ; and every person so taken shall be lodged in the 
in common common gaol until payment be made or he be discharged by 
§' ao1 - the authority of the Commissioners of Her Majesty's Treasury, 

or otherwise in due course of law ; and it shall be competent 
for such commissioners to give authority under their hands for 
such discharge, either absolutely or on such terms and con- 
ditions as they may see fit : provided always, that where the 
residences of the parties in such roll liable as aforesaid are not all 
in one county, borough, city, or place, then a copy of so much 
only of such roll as relates to the fines, issues, amerciaments, 
penalties, and recognizances to be paid by the parties resident 
in each county, city, borough, or place shall be sent with such 
writ as aforesaid to the sheriff, bailiff, or officer having execu- 
tion of process therein." 

Sect. 33 provides for oath to be made by clerk of assize 
sending process. 
Return of J3y se ct. 34, the sheriff "is on such day as the Commissioners 

to Treasury, of Her Majesty's Treasury may from time to time, by warrant 
under their hands, direct, return such writ to such Commis- 
sioners, and shall state on the back of the said roll what has 
been done in the execution of such process." 
Sheriff to By sect. 35 (a), until the fines, &c. are paid, recovered, or dis- 

unUlfines charged, or it be ascertained to the Treasury's satisfaction, that 
&c. are levied, the party in default had not any goods or chattels in the county, 
city, borough, or place in which a levy can be made, and that 
such party cannot be found or that his body cannot be lodged 
in any of Her Majesty's gaols, the sheriff is to retain the writ 
and annexed roll, " delivering to the said Commissioners of Her 
Majesty's Treasury a copy of such roll on the day on which he 
is required to return such writ, and also a copy of any former 
roll or rolls in which the fines, issues, amerciaments, penalties, 
and recognizances have not been paid or discharged"; and 
which writ, &c. shall continue in force and be his authority to 
and to deliver ac t upon ; and (b) the sheriff, on quitting office, is to deliver 
successor all over to his successor all rolls and writs, particularizing any 



SESSIONS AND ASSIZE FINES, ESTREATS, ETC. 221 

unpaid or undischarged fines, &o., that such successor "may use rolls and 
every means in his power for recovering the sums unpaid and 
not charged to his predecessors on the passing of his accounts 
before any person duly authorized to pass the same." 

By sect. 3G, where the party incurring or subject to the pay- When sheriff 
ment of any fine, &c. resides or has fled or removed from or out warrant to 
of the sheriff's jurisdiction, the sheriff shall issue his wan-ant, f^"^ of 
together with a copy of the writ, directed " to the sheriff, bailiff, county. 
or other officer acting for the county, city, borough, or place in 
which such person then resides or is, or in which his goods or 
chattels may be found, requiring such sheriff, bailiff, or other 
officer to execute such writ, and every such last-mentioned 
sheriff, bailiff, or other officer is hereby authorized and required 
to act in all respects under such warrant in the same manner as 
if the original writ had been delivered to him, and the said 
sheriff, bailiff, or other officer is hereby required within thirty 
days after the receipt of such warrant to return to the sheriff, 
bailiff, or other officer from whom he received the same what he 
has done in the execution of such process, and in case a levy has 
been made, to pay over all moneys received in pursuance of the 
warrant to the sheriff, bailiff, or other officer from whom he 
received the same." 

By sect. 37, " every sheriff, bailiff, or other officer as aforesaid Penalty on 
neglecting to do or perform any duty by this Act required shall ne t? e ct. 01 
forfeit and pay such sum as in sect. 10 of the said Act, 3 Geo. 4, 
c. 46, is provided for such neglect as therein mentioned, and to 
be recovered in like manner." 

By 3 & 4 "Will. 4, c. 99, s. 32, process is to be issued by the Process issued 
Remembrancer of the Court of Exchequer every term or oftener Remem- Y 
to sheriffs to levy all other fines, penalties and forfeited recog:- 1,raucer . 

° of Court of 

nizances, estreated to the Crown. Exchequer. 

Fines imposed by a coroner and forfeited recognizances at a Recovery of 
coroner's court are imposed, estreated and recovered in like f nes im P osed 

1 D 7 coroner. 

manner as fines, &c, at quarter sessions. (50 & 51 Vict. c. 71, 
s. 19.) 



Execution. 

This process is, with due regard to the foregoing directions, 
executed in a more or less similar manner to " 7-7. fa." and 
"Arrest," and the forms of return in such proceedings may 
accordingly be generally adapted. 



222 RECOVERY OF FINES, PENALTIES, ETC. 

Form of Writ. 
(Form in Schedule to 22 Sf 23 Vict. c. 21.) 

Victoeia, by the Grace of God of the United Kingdom of Great 
Britain and Ireland Queen, Defender of the Faith : 

To the Sheriff or Bailiff or officer [as the case may be"] for the 
county of [or city, borough, or place, as the case may be] 

greeting. 

You are hereby required and commanded, as you regard yourself 
and all yours. That you omit not, by reason of any liberty in your 
county, [or city, borough, or place, as the case may be'], but that you 
enter the same, and of all the goods and chattels of all and singidar 
the persons in the roll to this writ annexed, you cause to be levied 
all and singular the debts and sums of money upon them in the 
same roll severally charged, so that the money may be ready for 
payment at the [time of the return of the wrif\, to be paid over in 
such manner as the Commissioners of Her Majesty's Treasury may 
direct ; and if any of the several debts cannot be levied, by reason 
of no goods or chattels being to be found belonging to the parties, 
then in all cases that you take the bodies of the parties refusing to 
pay the aforesaid debts, and lodge them in the gaol (of the county, 
city, &c), there to remain until they pay the same, or be dis- 
charged by the authority of the said commissioners or otherwise in 
due course of law. 

Dated the day of in the year of our reign. 

[Signature] 

Clerk of Assize or Clerk of the Crown 
[as the case may be]. 



Forms of Warrants. 
1. Warrant (Levy of Debts, Sfc). 

) Esquire, Sheriff of the said county to and 

to wit. j my bailiffs, greeting : By virtue of a writ of Our 

Sovereign Lady the Queen to me directed and delivered bearing 
date the day of in the year of Our Lord one thousand 

eight hundred and ninety I command you and each of you 

jointly and severally that of the goods and chattels of of 

in my bailiwick you cause to be levied the sum of £ 
specified in the roll annexed to the said writ so that I may have 
that money ready for payment over in such manner as the Com- 
missioners of Her Majesty's Treasury may direct, as within I am 
commanded. And in what manner you shall have executed this 
warrant certify to me immediately after the execution hereof. 
Given under the seal of my office this day of 189 . 

By the Sheriff 

(Seal of office.) 

2. Warrant (Arrest of Debtor). 

"k Esquire, Sheriff of the said county, to the keeper 

to wit. /of the gaol of the said county and also to and 



SESSIONS AND ASSIZE FINES, ESTREATS, ETC. 223 

my bailiffs greeting : By virtue of a writ of Our Sovereign Lady 
the Queen to me directed and delivered bearing date the day 

of in the year of Our Lord one thousand eight hundred and 

ninety I command you and every of you jointly and severally 

that you omit not, &c. but take of wheresoever he may 

be found in my bailiwick and him safely lodge and keep in the 
gaol of to satisfy the sum of £ specified in the roll 

annexed to the said writ, as within I am commanded. And in 
what manner you shall have executed this warrant certify to me 
immediately after the execution hereof. 

Given under the seal of my office this day of 189 . 

By the Sheriff 

{Seal of office.) 



Fees. 
See under title " Sheriffs' Fees, &c," post, p. 505. 



III. Customs and Excise Penalties. 

As to penalties (Customs), see 39 & 40 Yict. c. 36, ss. 247 — 
254, and 46 & 47 Vict. c. 55, s. 19; and for penalties (Excise), 
see 7 & 8 Geo. 4, c. 53, ss. 95 and 96 ; and generally, see under 
title "Arrest," ante, p. 154. 



224 



Chapter XVI. 

WRIT OF SCIRE FACIAS. 

PAGE 

Introductory --------- 224 

Execution of Writ 225 

Fees - 225 



Introductory. 

This is a judicial writ in aid of a record, or, in other words, for 
the enforcement of a judgment. It has, moreover, been held to 
be in many cases an action. Winter v. Kretchman, 2 T. R. 46. 
It formerly also lay for the repeal of letters patent. 

Whilst there have been actions of scire facias at common law 
since the Judicature Acts (Portal v. Emmens, 1 0. P. D. 201 ; 
and Kipling v. Todd, 3 C. P. D. 350), scire facias seems to be 
now a more or less obsolete, and certainly somewhat rare process. 
Moreover, its application for the repeal of letters patent is abo- 
lished by 46 & 47 Yict. c. 57, s. 26. It will also be observed that 
no allusion is made to scire facias in the Judicature Acts or the 
Rules of the Supreme Court, whilst by such rules " all actions 
previously .... commenced by writ .... shall 
be instituted in the High Court of Justice by a proceeding to be 
called an action " (Ord. I. r. 1), and " every action in the High 
Court shall be commenced by a writ of summons, which shall 
{inter alia) be indorsed with a statement of the nature of the 
claim made, or of the relief or remedy required in the action " 
(Ord. II. r. 1) ; and further, that a fresh procedure is provided 
by the Rules of the Supreme Court for the various cases men- 
tioned in the Common Law Procedure Act, 1852, s. 132, in 
relation to scire facias (a), save only the cases of "bail on a 

(a) Viz., against bail on a "recognizance ad audiendum errores;" 
against members of a joint-stock company or other body upon a judg- 
ment recorded against a public officer or other person, sued as repre- 
senting such company or body, or against such company or body itself ; 
by or against a husband to have execution of a judgment for or against a 
■wife ; for restitution after a reversal in error ; upon a suggestion of 
further breaches after j udgment for any penal sum pursuant to 8 & 9 
Win. .'3, c. 1 1 ; or for the recovery of land taken under an elegit. 



INTRODUCTORY. 225 

recognizance," " restitution after a reversal in error," and " upon 
a suggestion of further breaches after judgment for any penal 
sum pursuant to 8 & 9 Win. III. c. 11." 

Again, with regard to its application on the Crown side, by 
C. 0. R., 1886, r. 127, "no proceedings shall be taken in the 
Crown Office by scire facias upon recognizance." 

And as to .scire facias, see under titles " Writ of Extent," ante, 
p. 136, and " Execution against Companies," post, p. 243. 

For the above reasons it is deemed unnecessary to go more 
fully into this branch. Moreover, any further information 
desired on this subject will be found in Chit. Arch. Practice 
and Short & Mellor's Crown Office Practice. 



Execution of Writ. 

See under " Execution of Writs " generally. 

" The duty of the sheriff in a writ of scire facias is to indorse 
on it the day of the month on which it was left with him, and, 
if he knows the defendant can be served, to issue his warrant 
thereon to two or more bailiffs to warn the defendant ; the 
bailiffs make an indorsement on this warrant either that they 
have or have not served the process, and return it to the sheriff ; 
conformably thereto, the sheriff returns either 'nihil' or ' scire 
feci'" 2nd ed. Watson on Sheriffs, p. 453. 



Fees. 
See under title " Sheriffs' Fees, &c," post, p. 505. 



M. 



226 



Chapter XVII. 



OUTLAWRY. 



Introductory - 

Execution - 

Returns - 

Forms of Returns and Inquisition 

Fees 



PAGE 

- 226 

- 227 

- 229 

- 229 

- 231 



Abolished in 
civil pro- 
ceedings : 



Imt not in 
criminal pro- 
ceedings. 



Forms of 
outlawry 
process. 



Introductory. 

Outlawry is the process of putting a man outside the protection 
of the law for his contempt in wilfully avoiding the execution of 
the process of the Queen's Court, and is resorted to when the 
ordinary process of the law has failed to effect his apprehension. 
A person outlawed is civiliter mortuus. All his property is 
forfeited to the Crown and he is incapable of bringing any 
action for redress of injuries. However, by the Civil Procedure 
Acts Repeal Act, 1879 (42 & 43 Vict. c. 59), s. 3, "After the 
passing of this Act no person shall be outlawed or waived in or 
in consequence of any civil proceedings, and no proceedings to 
outlawry or waiver in consequence of any civil proceedings shall 
be taken at the instance of the Crown or otherwise." But in 
criminal cases, process of outlawry, although practically obsolete, 
has not, however, as yet been abolished (see Report of Criminal 
Code Commissioners, p. 36), and it lies upon all indictments for 
treason, felony or misdemeanour. It also lies upon criminal 
informations filed in the Queen's Bench Division. Rex v. Wilkes, 
4 Burr. 2555. 

For the Crown Office Rules relating to outlawry, see C. 0. R., 
1886, rr. 99—121, under title " General Practice," ante, p. 34, 
and see Forms of Outlawry Process, Forms Nos. 52, 66, 57, 58, 
60, 59, 61, 62, 63, 64, 144 and 65 in Appendix to Crown Office 
Rules, 1886, and in the above order. In view of the abolition 



EXECUTION. 227 

of outlawry proceedings in civil process and of their rarity of 
late years in criminal cases, it is deemed preferable to avoid 
unnecessarily lengthening this work by setting out these forms. 



Execution. 

Supplementing the information given by the Crown Office 
Rules relating to outlawry, as set out at p. 34, ante, and the 
above-mentioned forms of outlawry process, the following 
extract from Watson on Sheriffs, p. 222 et seq. as to the mode 
of execution of the writ of exigent will be of service : — " The Writ of 
mode in which the sheriff should execute the writ of exigent is 
by calling upon the defendant, at each county court after the 
receipt of the writ, to appear ; and the sheriff must not omit any 
county court, for if a county court intervene between any of 
the exactions without the defendant being demanded there, it 
is error. In criminal proceedings, where the defendant is not 
bailable, as in treason or felony, it is clear that the sheriff should 
keep the defendant in custody ; but before judgment, if the 
defendant appear upon the exigent, issued on an indictment for 
a misdemeanour it is apprehended that the sheriff might take a 
recognizance for his appearance ; but after judgment it is clear 
that he could not, but that he should keep him in safe custody. 
After being five times demanded, if proclamations have been 
duly made, the defendant is declared to be outlawed by the 
coroner of the coimty in the county court." A judgment of Outlawry, 
outlawry is not complete unless it has been entered on the rolls, piete! C< 
and it is not sufficient to state simply that the writ of exigent 
was duly returned by the sheriff. Att.-Gcn. v. Richards, 14 
L. J. Ch. 363. " Great particularity is required in the return 
to the exigent for, as the consequences of outlawry are considered 
so penal, any irregularity will be fatal." 

The following is a form of the sheriff's warrant to his bailiff "Warrant to 
on exigent, authorizing him to make proclamations according to exigent, 
the exigency of the writ : — 

Warrant to Bailiffs on Exigent. 

\ sheriff of the county aforesaid, to and 

to wit. J my bailiffs, greeting : By virtue of a writ of our Sovereign 
Lady the Queen to me directed, I command you that you or one of 
you demand from County Court to County Court, until, 

q2 



228 



OUTLAWRY. 



according to the law and custom of England, he be outlawed if he 
do not appear, and if he do appear, then that you take and safely 
keep him so that I may have his body before the Queen on 

the day of next, wheresoever &c, to answer in an 

action . And how you shall have executed this my warrant 

make known to me. 

Hereof fail not. Given under the seal of my office this 
day of in the year of our Lord one thousand eight hundred 

and 



Warrant to 
bailiff on 
capias utla- 
gattim. 



The following is a form of the sheriff's warrant directed to 
his bailiff on a capias utlagatum : — 

Warrant to Bailiff on Capias Utlagatum. 

County of B. ) esq., sheriff of the county aforesaid, to 

to wit. | and my bailiffs, greeting : By virtue of Her 

Majesty's writ of capias utlagatum to me directed and delivered, I 
do hereby command you and each of you jointly and severally that 
you take C. D. wheresoever he may be found in my bailiwick and 
him safely keep, so that I may have his body before our Lady the 
Queen [_or before the justices of our Lady the Queen] at on 

the day of a.d. 18 , as in the said writ I am commanded. 

And in what manner you shall have executed this warrant certify to 
me immediately after the execution thereof. Given under the seal 
of my office this day of a.d. 18 

Sheriff. 



In executing 
capias utla- 
gatum outer 
doors may 
be broken. 

Execution 

within 

liberty. 

Inquisition on 
special capias 
utlagatum. 



Charging and 

swearing 

jury. 



After demand and refusal, outer doors may be broken open 
by the officer in executing a capias utlagatum in order to take 
the defendant or his goods. Rex v. Bird, 2 Show. 87. As the 
writ is non-omittas the sheriff may execute it within a liberty 
without sending his mandate to the bailiff of the liberty. 
2nd ed. Watson, p. 228. 

If the defendant is not taken on a special capias utlagatum, the 
sheriff must impanel a jury whose duty it is to inquire of and 
value the goods and chattels, lands and tenements of the defen- 
dant, and it seems that the sheriff should still hold the inquisi- 
tion even though the outlaw dies after the teste of the special 
capias utlagatum. 

In connection with the writ of capias utlagatum special cum 
breve cle inquirendo, the jury are charged and sworn in the 
following forms : — 

Charge to Jury. 

Your charge is to inquire what goods and chattels, lands and 
tenements, C. D. of hath in my bailiwick, and also to inquire 

and say what is tho true value thereof. 



RETURNS. 229 



Juror's Oath. 



You shall well and truly try what goods and chattels, lands and 
tenements, C. D. of has and the value thereof, and a true 

verdict give according to the evidence. So help you God. 



Returns. 



To the writ of venire facias the sheriff will return cepi corpus Return to 
if he has taken the defendant, and either has him in custody or 
has released him on hail ; but if he cannot execute the writ, he 
will return either that he has summoned the defendant and he 
has not appeared, or that the defendant has no goods in his 
bailiwick whereby he can be summoned or distrained. If the 
sheriff return that the defendant has been summoned and has 
not appeared, the prosecutor may issue a distringas to answer, 
and if the sheriff return that the defendant has no goods whereby 
he can be summoned, a capias ad respondendum may be issued 
on the fourth day after the return. C. 0. R. 18S6, Eule 100. 

For the various returns to be made, the reader is referred to Returns 
the Crown Office Rules relating to outlawry, ante, p. 34, whilst s 
as to the writ of capias ad satisfaciendum, one or other of the 
applicable return forms under " Arrest," ante, p. 201, should be 
adopted ; and as to forms of return, see also the form of roll of 
proceedings in outlawry in Short & Mellor's Pract. of the C. 0., 
App. E., No. CCXLI. 

On a special capias utlagatum, if either the goods or the profits Return of 
of lands have been found by the inquisition, the sheriff should ^^JcMcapias 
return the inquisition ; but if the jury find that the defendant «*%«<«»». 
has no goods, &c, the inquisition should not be returned, but 
the sheriff should return that the defendant has no goods, &c, 
in his bailiwick. 



Forms of Returns and Inquisition. 

The following forms of returns and inquisition from Watson 
on Sheriffs will be of service : — 

1. Return to the Exigent, Quinto Exactus, and Outlawed. 

By virtue of this writ to me directed, at my county court at A., 
in and for the county of N., on , the day of , in 

the year of the reign of our Sovereign Lady Queen Victoria, 

the within-named O. I), was a first time demanded, and did not 
appear : And at my county court, held at A. aforesaid, in and for 



230 OUTLAWKY. 

the said county of N., on , the day of , in the year 

aforesaid, the said C. D. was a second time demanded, and did not 
appear : And at my county court held at A. aforesaid, in and for 
the said county of N., on the day of , in the year 

aforesaid, the said C. D. was a third time demanded, and did not 
appear : And at my county court, held at A. aforesaid, in and for 
the said county of N ., on the day of , in the year 

aforesaid, the said C. D. was a fourth time demanded, and did not 
appear : And at my county court held at A. aforesaid, in and for 
the said county of N., on the day of , in the year 

aforesaid, the said C. D. was a fifth time demanded, and did not 
appear. Therefore by the judgment of X. Y. coroner of our 
Sovereign Lady the Queen for the said county of the said 

C. D. according to the law and custom of England is outlawed [or, 
if a ivoman, " waived "]. 

The answer of A. B. esquire, sheriff. 

2. Return to Exigent, where there are not five County Courts. 

By virtue of this writ to me directed, at my county court, held at 
A., in and for the county of N., on the day of , in the 

year of the reign of our Sovereign Lady Queen Victoria, the 
within-named C. D. was a first time demanded. 

Answer A. B., esquire, sheriff. 

3. Where the Sheriff goes out of Office, and the neiv Sheriff exacts the 

Defendant. 

\_In addition to the last Precedent.] 

This writ, as above indorsed, was delivered to me, the under- 
named present sheriff, by the above-named late sheriff, at his going 
out of office. At my county court, held at A. \_as above']. 

4. Where the Defendant appears. 

By virtue of this writ to me directed, at my county court, held at 
A., in and for the said county of N., on the day of , in 

the year of the reign of our Sovereign Lady Queen Victoria, 

the within-named C. D. was a first time demanded, and then and 
there appeared, and then rendered himself into my custody ; whose 
body I have ready, before our Lady the Queen, at the day and place 
within- mentioned, as within I am commanded. 

The answer of A. B., esquire, sheriff. 

5. Return to the Writ of Proclamations. 

By virtue of this writ to me directed, I have caused the within- 
named C. I), to be proclaimed at my county court, held at A., within 
my bailiwick, the day of , in the year within mentioned : 

I also caused him to be proclaimed at the general quarter sessions 
of the peace, held at M., within my bailiwick, the day of , 

in the same year : And I likewise caused him to be proclaimed at 
the usual door of the parish church of H., within my bailiwick (in 
which said parish the said C. D. lived), on Sunday, the day 



FORMS OF RETURNS AM) INQUISITION. 

of , in the same year ; that he may render himself unto me 

[or, if a foreign proclamation, " to the sheriff of , so that 

they,"] so that I may have his body before Her Majesty's justices 
at Westminster, at the time within mentioned, to answer the within- 
named J. W., of the plea within mentioned. 

The answer of A. B., esquire, sheriff. 

6. Return to special Capias Utlayatum. 

The execution of this writ appears in a certain schedule hereunto 
annexed. 

The answer of A. B., esquire, sheriff. 

7. Inquisition («). 

N. {to wit.) An inquisition indented, taken at A., in the county 
of N., the day of , in the year of the reign of Our 

Sovereign Lady Queen Victoria, before me, A.B., esq., sheriff of the 
said county of N., by virtue of Her said Majesty's writ to me directed 
in this behalf, and to this inquisition annexed, by the oath of \_here 
name the jurors who were upon the inquest] twelve honest and lawful 
men of the county aforesaid, who say iq)on their oath, that CD. 
named in the writ hereunto annexed, on the day of last 

past (on which day he was outlawed, as in the said writ is men- 
tioned.), was possessed of the goods and chattels following : that is 
to say, \here describe the goods] of the value of £ , of his own 

proper goods and chattels ; [or, if he had no yoods say "had no goods 
nor chattels in my bailiwick to the knowledge of the said jurors"] : 
and the jurors aforesaid, upon their oath aforesaid, do further say, 
that the said CD., on last past (on which day he was out- 

lawed as aforesaid) was seized in his demesne as of fee of and 
in , with the appurtenances, now in the tenure and occupa- 

tion of P.M., the same being of the yearly value of £ , in all 

issues beyond reprize ; all and singular which said goods and 
chattels, lands and tenements, I the said sheriff, by virtue of the 
said writ, on the day of the taking of this inquisition, have taken and 
caused to be seized into the hands of our said Lady the Queen as by 
the said writ I am commanded. And the jurors aforesaid, upon 
their oath aforesaid, do further say, that the said CD., on 
last past (on which day he was outlawed as aforesaid), or at any 
time afterwards, had not, nor hath he any other or more [goods or 
chattels, lands or tenements] in my bailiwick, to the knowledge of 
the said jurors. In witness whereof, as well as I the said sheriff, 
as the jurors aforesaid, have set our respective seals. 

{Seal of office.) { Twelve seals.) 



2.'U 



Fees. 
See under title " Sheriffs' Fees, &c," post, p. 505. 

(a) In connection with special capiat utlagatum. 



232 



Chapter XVIII. 

WRIT OF RESTITUTION. 

PAGE 

Introductory --------- 232 

Form of Writ 232 

Execution of Writ - 233 

Fees 233 



Introductory. 

This writ lies on reversal or setting aside of judgment for 
restoration to a party of the property he has lost by the judg- 
ment, and where such is impracticable in the ordinary course of 
law. It may also be awarded on indictments for forcible 
entries into and detainer of premises (a). 



Form of Writ. 
Writ of Restitution (Form No. 148, C. 0. E. 1886). 

Victoria, by the Grace of God, &c, to the Sheriff of 
greeting : Whereas some time ago, that is to say, on \_coj>y the caption 
of the indictment and the indictment] which said indictment We did 
afterwards, for certain reasons, cause to be brought before Us in 
the Queen's Bench Division of Our High Court of Justice, to be 
determined according to the law and custom of England. And 
whereas such proceedings were afterwards had in Our said Court 
before Us upon the said indictment, that the said by a jury 

of the county taken between Us and the said stands convicted 

of the premises in the indictment above specified and charged upon 
him, in manner and form as in and by the said indictment is within 
alleged against him, as in Our said Court before Us it appears upon 



(a) For further information hereon, see 14th ed. Chit. Arch., pp. 834, 
993, and 1229, and Short & Mellor's Practice of the Crown Office, pp. 447— 
449. See also under title "Scire Facias," ante, p. 224, in relation to 
restitution after a reversal in error. 



FORM OF WRIT. 233 

record We therefore, being willing that due and speedy justice 
should he done in the premises, do command you that you cause to 
he rcseised and restored to the said the aforesaid messuage, 

with the appurtenances situate in the parish of , in the said 

indictment specified. And that you do without delay cause the 
said to he put into full possession thereof. And how you 

shall have executed this Our writ make known to Us in Our said 
Court immediately after the execution thereof. And have then 
there this writ. 
"Witness, &c. 



Execution of Writ. 



The particular form of this writ and the foregoing definition 
of the object and application of this process generally indicate 
the mode of its execution. See also in this respect the some- 
what similar process of Writ of Possession, the forms in which 
latter process may accordingly be adapted with the necessary 
alterations. 



Fees. 
See under title "Sheriffs' Fees," &c, post, p. 505. 



234 



Chapter XIX. 



EXECUTION AGAINST COMPANIES. 

PAGE 

Preliminary --------- 234 

Effect of Registration of Companies ----- 235 

What may be Sequestered and Taken in Execution - - 235 

Statutory Provisions for Protection of Creditors - - - 237 

Adverse Claims -------- 237 

Stay of Proceedings under Winding-up of Companies - - 238 

Execution against Shareholders ------ 242 



Acts relating 
to companies. 



Railway and 

similar 

companies. 



Preliminary. 

The Acts relating to companies are the Companies Act, 1862 
(25 & 26 Vict. c. 89), the Companies Act, 1867 (30 & 31 Vict. 
c. 131), the Companies Act, 1870 (33 & 34 Vict. c. 104), the 
Companies Act, 1877 (40 & 41 Vict. c. 26), the Companies Act, 
1879 (42 & 43 Vict. c. 76), the Companies Act, 1880 (43 Vict. 
c. 19), the Companies (Memorandum of Association) Act, 1890 
(53 & 54 Vict. c. 62), the Companies Winding-up Act, 1890 
(53 & 54 Vict. c. 63), and the Directors' Liability Act, 1890 
(53 & 54 Vict. c. 64). See also the Companies Clauses Consoli- 
dation Acts, 1845, 1888, and 1889 (8 & 9 Vict. c. 16; 51 & 52 
Vict. c. 48, and 52 & 53 Vict. c. 37), and the Rules and Orders 
for the time being in force under all these above Acts. 

Railway and similar companies are chiefly governed by the 
Companies Clauses Consolidation Acts, 1845, 1888, and 1889, 
and the Companies Clauses Act, 1863 (26 & 27 Vict. c. 118) ; 
and see as to railway companies, the Railway Companies Act, 
1867 (30 & 31 Vict. c. 127), the Railway and Canal Traffic Act, 
1888 (51 & 52 Vict. c. 25), the Railway and Canal Traffic 
(Provisional Orders) Amendment Act, 1891 (54 Vict. c. 12) ; 
and see also the Rules and Orders for the time being in force 
under all these Acts. 



PRELIMINARY. 235 

As to banking and other companies entitled to sue and be Banking and 
sued by a public officer, see 7 Geo. 4, c. 46, as partially repealed n i e s entitled" 
by the Statute Law Revision Act, 1890 ; 1 & 2 Vict, c. 96, as to JJJ and b ? 
partially repealed by the Statute Law Revision Act, 1874 (No. officer. 
2), and Statute Law Revision Act (No. 2), 1890; 7 & 8 Vict. 
c. 32 ; 7 & 8 Vict. c. 113, s. 47 ; and 27 & 28 Vict. c. 32 ; as 
also Rules of Supreme Court, 1883, Ord. XLII. r. 23. 

As to companies established by letters patent, see 7 "Will. 4 Companies 
& 1 Vict. c. 73, as partially repealed by the Statute Law Revision letters patent 
Act, 1874, the Statute Law Revision Act (No. 2), 1888, and 
the Statute Law Revision Act (No. 2), 1890. 



Effect of Registration of Companies. 

Registration under the Companies Act, 1862 (Part VII.), does Not to affect 
not affect obligations incurred previously to registration. Com- ? ^^^ na 
panies Act, 1862, s. 194. And by sect. 195 of that Act, pro- previously, 
vision is made for the continuation of all such actions, suits, and Continuation 
other legal proceedings as may at the time of the registration of actions. 
any company registered in pursuance of such part (Part VII.) 
of the 1862 Act, have been commenced by or against such 
company, or the public officer or any member thereof, " in the 
same manner as if such registration had not taken place ; never- Execution 
theless, execution shall not issue against the effects of any indi- aeainsteffecta 
vidual member of such company upon any judgment, decree, or " f individual 
order obtained in any action, suit, or proceeding so commenced 
as aforesaid ; but in the event of the property and effects of the 
company being insufficient to satisfy such judgment, decree, or 
order, an order may be obtained for winding up the oompany." 



What may be Sequestered and Taken in Execution. 

The property of a company may be sequestered for contempt Property may 
or disobedience to a judgment or order, and the directors and and'directors 1 
other officers may be attached and their property sequestered attached. 
(Ord. XLII. r. 31) ; but the company cannot be attached for 
contempt. 



236 



EXECUTION AGAINST COMPANIES. 



Assets and 
effects may- 
be taken in 
execution. 



Exception as 
to railway- 
rolling - stock 
and plant. 



Appointment 
of receiver. 



Execution is issued against companies under the Companies 
Acts, 1862 to 1890, and their assets and effects are taken in the 
usual way, but the uncalled-up capital can only he reached by- 
means of a winding-up. 

"With regard, however, to railway companies, the following 
provision is made for the protection from execution of railway 
rolling stock and plant by the Eailway Companies Act, 1867 
(30 & 31 Vict. c. 127), s. 4, viz. : "The engines, tenders, car- 
riages, trucks, machinery, tools, fittings, materials, and effects, 
constituting the rolling stock and plant used or provided by a 
company for the purpose of the traffic on their railway, or of 
their stations or workshops, shall not, after their railway or any 
part thereof is open for public traffic, be liable to be taken in 
execution at law or in equity at any time after the passing of 
this Act, and before the 1st day of September, 1868, where the 
judgment on which execution issues is recovered in an action on 
a contract entered into after the passing of this Act, or in an 
action not on a contract commenced after the passing of this 
Act." The judgment creditor may, however, obtain the ap- 
pointment of a receiver in manner therein mentioned. lb. 
And by sect. 3, " The term ' company ' means a railway com- 
pany ; that is to say, a company constituted by Act of Parlia- 
ment, or by certificate under Act of Parliament, for the purpose 
of constructing, maintaining, or working a railway (either alone 
or in conjunction with any other purpose)." Provision is, 
moreover, made by sect. 5 of the same Act for the determination 
of questions respecting executions against a railway company's 
property. By Midland Waggon Co. v. Potteries, Shrewsbury and 
North Wales Bail. Co., 6 Q. B. D. 36 ; 50 L. J. Q. B. 6, such 
statutory protection from seizure under execution of a railway 
company's rolling stock and plant was held to extend to that of 
a company whose railway is closed for traffic and may never be 
re-opened. And see Great Northern Rail. Co. v. Tahourdin, 13 
U. B. D. 320 ; 53 L. J. Q. B. 69 ; In re Manchester and Milford 
Rail. Co., 14 Ch. D. 645 ; 49 L. J. Ch. 365 ; and In re Bir- 
mingham and Litchfield Rail. Co., 18 Ch. D. 155 ; 50 L. J. Ch. 
594 ; and as to plant for formation of railway, see Beeston v. 
Marriott, 4 Giff. 436 ; 9 Jur. N. S. 960 ; 8 L. T. 690. 



STATUTORY PROVISIONS FOR PROTECTION OF CREDITORS. 237 

Statutory Provisions for Protection of Creditors. 

There are certain statutory provisions for protection of 
creditors in the case of limited companies under the Companies 
Act, 1862, Part III., sects. 39 to 61 inclusive, and Part II., 
sects. 25, 26, 27, 32 and 33, of which provisions that of sect. 43 
relating to the register of mortgages and charges specifically 
affecting the property of limited companies is essentially applic- 
able to a work of this description. By that section (43), " Every Limited corn- 
limited company under this Act shall keep a register of all pa ^ y j£ k f ep 
mortgages and charges specifically affecting the property of the mortgages 
company, and shall enter in such register in respect of each an ° drges 
mortgage or charge, a short description of the property mort- 
gaged or charged, the amount of charge created, and the names 
of the mortgagees or persons entitled to such charge ; if any Penalty for 
property of the company is mortgaged or charged without such not ,f^ t ^ rmg 
entry as aforesaid being made, every director, manager, or other &c. 
officer of the company, who knowingly and wilfully authorizes 
or permits the omission of such entry, shall incur a penalty not 
exceeding fifty pounds ; the register of mortgages required by Register may 
this section shall be open to inspection by any creditor or v e ms P? cted 
member of the company at all reasonable times ; and if such &c. 
inspection is refused, any officer of the company refusing the Penalt 7 on 

i t i i c,i , refusing 

same, and every director and manager of the company autho- inspection. 
rizing or knowingly and wilfully permitting such refusal, shall 
incur a penalty not exceeding five pounds, and a further penalty 
not exceeding two pounds for every day during which such 
refusal continues; and in addition to the above penalty, as 
respects companies registered in England and Ireland, any 
judge sitting in chambers, or the Vice- Warden of the Stannaries 
in the case of companies subject to its jurisdiction, may by order 
compel an immediate inspection of the register." As to the 
operation of this section, see Re General Horticultural Co., Ltd.. 
Whitehotise's Claim {No. 2), 53 L. T. 699 ; Wright v. Horton, 12 
App. Cas. 371 ; 56 L. J. Ch. 873 ; and In re Underbank Milk 
Cotton Spinning and Manufacturing Co., 31 Ch. D. 226; 55 
L. J. Ch. 255. 



Adverse Claims. 

"With regard to adverse claims, see under incident titles ; in 
particular as to debentures under title " Bills of Sale (Deben- 
tures)," post, p. 314. 



238 



EXECUTION AGAINST COMPANIES. 



Winding-up 
of companies. 



When Court 
may restrain 
further pro- 
ceedings in 
any action, 
&c. 



Actions, &c. 
to be stayed 
after order for 
•winding up. 



Court may 
stay pro- 
ceedings for 
winding up 
after order. 



Certain at- 



Stay of Proceedings under Winding-up of Companies. 

With regard to the winding up of companies, such is regu- 
lated by the Companies Act, 1862, Part IV., sects. 74 to 173 
inclusive (as partially repealed by the Companies Winding-up 
Act, 1890, infra), and Part YIIL, sects. 199 to 204 inclusive, 
the Companies Act (1862) Amendment Act (30 & 31 Yict. 
c. 131), sects. 40 to 46 inclusive (as partially repealed by the 
Companies Winding-up Act, 1890), the Joint Stock Companies 
Arrangement Act, 1870 (33 & 34 Yict. c. 104), the Companies 
Winding-up Acts, 1890 and 1893 (53 & 54 Yict, c. 63, and 56 
& 57 Yict. c. 58), and as to Railway Companies, the Railway 
Companies Act, 1867 (30 & 31 Yict. c. 127), sects. 6 to 22 in- 
clusive (arrangements with creditors), and sects. 31 to 35 inclu- 
sive (abandonment), and by the rules and orders for the time 
being in force under these various Acts. 

" The Court may (inter alia) at any time after the presentation 
of a petition for winding up a company under this Act, and 
before making an order for winding up the company, upon the 
application of the company, or of any creditor or contributory 
of the company, restrain further proceedings in any action, suit, 
or proceeding against the company, upon such terms as the 
Court thinks fit." Companies Act, 1862, s. 85. 

" When an order has been made for winding up a company 
under this (1862) Act, no suit, action, or other proceeding shall 
be proceeded with or commenced against the company except 
with the leave of the Court, and subject to such terms as the 
Court may impose." lb. s. 87. 

" The Court may at any time after an order has been made 
for winding up a company, upon the application by motion of 
any creditor or contributory of the company, and upon proof to 
the satisfaction of the Court that all proceedings in relation to 
such winding-up ought to be stayed, make an order staying the 
same, either altogether or for a limited time, on such terms and 
subject to such conditions as it deems fit." lb. s. 89. 

Like provision is made by sections 197 and 198 in the case 
of the winding up of companies registered in pursuance of 
Part VII. of the above (1862) Act, and by sections 201 and 
202 in the case of the winding up of unregistered companies. 
And as to staying proceedings, see Judicature Act, 1875, s. 24, 
sub-s. 5. 

To continue, by section 163 of the Companies Act, 1862, 



STAY OF PROCEEDINGS UNDER WINDING UP OF COMPANIES. 239 

" Where any company is being wound up by the Court or tachments, 
subject to the supervision of the Court, any attachment, seques- tionsaad 
tration, distress, or execution put in force against the estate or executions to 
effects of the company after the commencement of the winding 
up shall be void to all intents." And see Ex parte Fourdrinier, 
In re Artistic Colour Printing Co., 21 Ch. D. 510 ; In re The 
Opera, 62 L. T. 859 ; 38 W. E. 637. This 163rd section is, 
however, qualified by sect. 87. In re Bank of Hindustan, China 
and Japan, Ex parte Lerick, L. E. 5 Eq. 69 ; In re London and 
Devon Biscuit Co., L. E. 12 Eq. 190; 40 L. J. Ch. 574; In re 
London Cotton Co., L. R 2 Eq. 53 ; Smith, Fleming fy Co.'s Case, 
L. E. 1 Ch. 538 ; and In re Vron Colliery Co., 20 Ch. D. 442 ; 
51 L. J. Ch. 389. Moreover, the words " put in force " in such 
section mean when execution is actually levied, not when the 
writ is put into the hands of the sheriff, but when the sheriff by 
virtue of the writ enters into possession. Accordingly, if an 
execution be so put in force after the commencement of the com- 
pany's winding-up, it is void, subject only to the exercise of the 
Court's discretionary power in the execution creditor's favour, and 
which power will, it seems, only be exercised under exceptional 
circumstances. In re London and Devon Biscuit Co., supra ; and 
In re Artistic Colour Printing Co., Ex parte Fourdrinier, supra. 
See, moreover, Ex parte Parry, In re Great Ship Co., 10 Jur. 
N. S. 3 ; 33 L. J. Ch. 245 ; In re London Cotton Co., L. E. 2 Eq. 
53 ; and In re Thurso Gas Co., 42 Ch. D. 486 ; 61 L. T. 351. 

13 ut the presentation of a petition to wind up a company is Sheriff not 
no ground for restraining a sale by the sheriff of property of ^^Trr 1 „ 
the company then already seized under an execution. Ex parte property af- 
Millucood Colliery Co., 24 W. E. 898. See also In re Great Ship ready 8eized » 
Co., supra. Such a sale is, nevertheless, a proceeding within unless Court 
the 87th section of the Act, and will be restrained, if the Court JSJXSm- 
has reason to doubt the bona fides of the transaction. In re action. 
Perkins' Beach Lead Co., 7 Ch. D. 371 (a). See also In re Hill 
Pottery Co., L. E. 1 Eq. 649 {b) ; In re Plas-yn-Mhowys Coal 
Co., L. E. 4 Eq. 689 (b) ; In re Silrcr Hill Mining Co., 27 Sol. 
Jour. 615; In re Bank of Hindustan, China and Japan, Ex parte 
Levick, supra ; and In re Bastow 8f Co., L. E. 4 Eq. 681 (c). See 

((/) Disapproved, however, in Li re Artistic <\,lnur Print inn Co., 21 Ch. 
]). 510. 

(b) Not however followed in Ex parte Milwood Colliery Co., 24 W. E. 
B98. 

(c) But questioned in In re Th Vron Colliery Co., 20 Ch. D. 44i'. 



240 



EXECUTION AGAINST COMPANIES. 



also as to sections 85 and 163, In re Vron Collier// Co., ante ; 
and as to staying proceedings under sect. 87, California Redwood 
Co. v. Walker, 13 C. of S. Ca. 4th Series, 810 ; Graham v. Edge, 
20 U. B. D. 683 ; 57 L. J. Q. B. 406 ; In re Pontypridd and 
Rhonda Valley Tramways Co., 58 L. J. Ch. 536 ; 37 W. E. 570 ; 
and In re North Carolina Estate Co., W. N. (1889) 53 ; 5 T. L. 
R. 328. According to Chadwick Healy on Company Law, 
when the sheriff is not in possession at the commencement of 
the winding up, the Court will interfere much more readily ; 
and the cases show that it will prevent execution from being 
levied, unless some good reason to the contrary can be shown. 
On the other hand, Sir R. Malins, V.-C, in the course of his 
judgment in Re Dimson's Estate Fire Clay Co., L. R. 19 Eq. 202, 
says : — " The object of the Companies Acts is that there shall 
be an equal distribution of the assets amongst all the creditors 
of a company, but in any case where there has been an attempt 
unjustly to wind up a company for the purpose of defeating 
creditors, then the Court has said that any particular creditor 
who has been unjustly treated shall be at liberty to pursue the 
remedy in his hands notwithstanding the order for winding-up" ; 
and in this connection see In re Imperial Steam and Household 
Coal Co., 18 L. T. 390 ; 16 W. R. 689 ; 37 L. J. Ch. 517; and 
In re Universal Disinfector Co., L. R. 20 Eq. 162. 
Part IV. of It was held by the Court of Appeal in Rudow v. Great Britain 

Act 1862 8 Mutual Life Assurance Society, 17 Ch. D. 600, that (whilst in 
withexcep- that case the Court ought not for certain special reasons to 
to -winding up exercise its discretionary power in the company's favour) where 
tered reglS -" proceedings are pending for winding up an unregistered com- 
pany, pany all the provisions of Part IV. of the Companies Act, 1862, 
other than those expressly excepted, are applicable (d), and that 
under sect. 85, the Court had jurisdiction to make the order 
asked for, the direction in sect. 204 of the Act that " an un- 
registered company shall not, except in the event of its being 
wound up, be deemed to be a company under this Act " not 
being intended to confine the application of the Act to a com- 
pany which has been actually ordered to be wound up. Jessel, 
M. R., said: "Now, under the Companies Act, 1862, s. 85, it 



(d) Such, reference to Part IV. of the Companies Act, 1862, -will now 
be read with due regard to the qualification of such Part IV. by the 
Companies Winding-up Act, 1890 ; but which it will be ohserved does 
not affect the particular sections of the 18G2 Act under consideration. 



STAY OF PROCEEDINGS UNDER WINDING UP OF COMPANIES. 241 

clearly is not obligatory on the Court to make the order, 
but the Court has a discretion which has been repeatedly 
exercised." 

Under a voluntary winding-up the Court has jurisdiction to Court's juris- 
stay actions by creditors against the company. Re Keynsham voluntary 
Co., 33 Beav. 123; and see Re Life Association of England, 34 winding-up to 

' ' ' stay actions, 

L. J. Ch. 64. Moreover, where the goods of a company have & c . 
been taken in execution after the passing of the resolution for 
voluntary winding-up, the Court has jurisdiction to stay further 
proceedings on the execution. Westbury v. Twigg 8f Co., [1892] 
1 Q. B. 77 ; 61 L. J. Q. B. 32. Moreover, under sects. 89 and 
138 of the Companies Act, 1862, the Court has jurisdiction, on 
the petition of the liquidator in a voluntary liquidation, to stay 
all proceedings in the winding-up, with a view to the reconstruc- 
tion of the company, where it is satisfied as to the assent of the 
creditors. In re Steamship Titian Co., 58 L. T. 178; 36 W. R. 
347. 

It was held on appeal in Re WUhernsea Brickworks, 16 Ch. D. Sect. 87 of 
337 ; 50 L. J. Ch. 185, that sect. 87 of the Bankruptcy Act, 1869, ^ct^ffnot 
which deprives execution creditors of the fruits of the execution to . apply t0 . 

i i • m i • i • winding-up of 

where the sheriff has notice of a bankruptcy within fourteen companies. 
days after sale, is not made applicable to the winding up of 
companies by the Judicature Act, 1875, s. 10 {In re Printing 
and Numerical Registering Co., 8 Ch. D. 535, overruled) ; and 
it is conceived that the principle of this decision will be equally 
applicable to sect. 46, sub-sect. 2, of the Bankruptcy Act, 1883. 

By 30 & 31 Yict. c. 127, ss. 7, 9, provision is made for the stay of 
stay of actions and executions, &c, in the case of arrangements case°of'ar-' m 
by railway companies with their creditors. And see as to stay- rangements. 
ing proceedings, In re Richards 8f Co., 11 Ch. D. 676 ; Devas v. 
East and West India Dock Co., 58 L. J. Ch. 522 ; 61 L. T. 217 ; 
and Stevens v. Mid Hants Rait. Co., London Financial Association 
v. Stevens, L. E. 8 Ch. 1064; 42 L. J. Ch. 694. 

As to commencement of winding-up by the Court, " a wind- Commence- 
ing up of a company by the Court shall be deemed to commence w indino--up— 
at the time of the presentation of the petition for the winding- by Court ; 
up." The Companies Act, 1862, s. 84 ; and see Kent v. Freehold 
Land and BrickmaMng Co., L. E. 3 Ch. 493, 494; In re United Ser- 
vice Co.,~L. E. 7Eq. 76; and In re Taurine Co., 25 Ch. D. 118. As 
to commencement of the winding-up in the case of life assurance of life assur- 
companies, see 35 & 36 Vict, c. 41, s. 4. As to commencement of n ° e c g e . compa " 
winding-up under supervision, see In re Smith, Knight fy Co., under super- 

M. r vision; 



242 EXECUTION AGAINST COMPANIES. 

Weston's Case, L. E. 4 Ch. 20 ; Hodgkinson v. Kelly, L. R. 6 Eq. 
496, 499; In re Colonial Trusts Corporation, Ex parte Bradshau; 
15 Ch. D. 465 ; In re Emperor Life Assurance Society, 31 Ch. D. 
78 ; 55 L. J. Ch. 3 ; In re Imperial Land Co. of Marseilles, Ex 
parte Colbome and Straivbridge, L. R. 11 Eq. 478 ; In re Manchester 
Economic Building Society, 24 Ch. D. 488 ; and In re Taurine Co., 
voluntary. supra. As to commencement of voluntary winding-up, " a volun- 
tary winding-up shall be deemed to commence at the time of the 
passing of the resolution authorizing such winding-up." The 
Companies Act, 1862, s. 130 ; and see hereon Thomas v. Patent 
Lionite Manufacturing Co., 17 Ch. D. 250 ; 50 L. J. Ch. 544 ; 
44 L. T. 392 ; In re Emperor Life Assurance Society, ante ; In re 
West Cumberland Iron and Steel Co., 40 Ch. D. 361 ; 58 L. J. 
Ch. 373 [In re Colonial Trusts Corporation, supra, not followed) ; 
and In re Dry Docks Corporation of London, Limited, 58 L. J. 
Ch. (App.) 33. 



Execution against Shareholders. 

The Act of 1862 does not give creditors any direct right 
against the members by scire facias or otherwise. 

With regard to the statutory provision (per Common Law 
Procedure Act, 1854, sect. 132) for writs of scire facias against, 
inter alia, members of a joint stock company or other body, upon 
a judgment recorded against a public officer or other person 
sued as representing such company or body, or against such 
company or body itself, a new mode of procedure is expressly 
provided by the present rules. 
Leave to issue By R. of S. C. 1883, Ord. XLII. r. 23 {inter alia) : Where a 
a^ainstshare- P ar ty i s entitled to execution against any of the shareholders of 
holders. a joint-stock company upon a judgment recorded against such 

company, or against a public officer or other person representing 
such company, the party alleging himself to be entitled to exe- 
cution may apply to the Court or a judge for leave to issue execu- 
tion accordingly. And such Court or judge may, if satisfied that 
the party so applying is entitled to issue execution, make an 
order to that effect, or may order that any issue or question 
necessary to determine the rights of the parties shall be tried in 
any of the ways in which any question in an action may be tried. 
And in either case such Court or judge may impose such terms 
as to costs or otherwise as shall be just. And according to tho 



EXECUTION AGAINST SHAREHOLDERS. 243 

Annual Practice, 1894, p. 802, a party entitled to execution 
against shareholders of a joint-stock company on a judgment 
against a company may, where the company has no goods which 
may be taken, apply, under r. 23 of Ord. XLIL, for leave to 
issue execution against individual shareholders. And see Att.- 
Gen. v. Birmingham Drainage Board, 17 Ch. D. G85. See also, 
in relation to execution against shareholders, the 1862 Act, 
sect. 195. As to execution against shareholders of railway and 
similar companies, see the Companies Clauses Consolidation Act, 
1845, sects. 8, 9, and 36. 

As to execution against shareholders in banking and other Shareholders 
companies entitled to sue and be sued by a public officer, see rompanie.^ 
7 Geo. 4, c. 46, ss. 12 and 13, and Ord. XLIL r. 23, supra. &°. "•^jjj* 
A scire facias (e) (or now a summons under Ord. XLIL r. 23, sued by pub- 
supra) is the proper mode of proceeding against shareholders "° officer - 
under the Banking Companies Act, 7 Geo. 4, c. 46. Hansford v. 
Bosanquet, 2 Q. B. 972; Bosanquet v. Ban-ford, 11 A. & E. 520; 
Cross v. Law, 6 M. & W. 217 ; and Wittenbury v. Law, 6 Bing. 
N. C. 345 ; see also 5th ed. Lind. 286 ; and Hat wood v. Law, 
7 M. & W. 203. 

And as to execution against shareholders in companies Shareholders 
established by letters patent, see 7 Will. 4 & 1 Vict. c. 73, s. 24. ^tabnThed by 

A judgment against a company, the shareholders of which letters patent. 
are liable to execution on the judgment, may be executed against 
them although the creditor has issued an elegit against the com- 
pany and has obtained partial satisfaction by an extent under 
the writ. 5th ed. Lind. 296 ; and see Rigby v. Dublin Trunk 
Railway Co., L. P. 2 C. P. 586 ; Llfracombe Railway Co. v. Lord 
Bollimore, L. P. 3 C. P. 288 ; Shrimpton v. Sidmouth Railway 
Co., L. P. 3 C. P. 80 ; Lee v. Bade and Torrington Junction 
Railway Co., L. E. 6 C. P. 578 ; Bortal v. Emmens, 1 C. P. D. 
664 ; Kipling v. Todd, Kipling v. Allan, 3 C. P. D. 350 (Bortal 
v. Emmens, distinguished); and Jlammattv. Brett, 54 L. T. 165 
(Kipling v. Todd, aide, followed). 

As to debentures, see under title " Bills of Sale (What con- Debentures, 
stitutes a Bill of Sale)," 7^, p. 314. 



(e) See under title "Writ of Scire Facias," ante, p. 224. 



r2 



244 



Chapter XX. 



HUSBANDRY PROVISIONS I THEIR EFFECT UPON EXECUTION. 



No sheriff, 
&c. to sell, &c 
any straw, &c. 
in any case, 
nor any hay, 
&c, contrary 
to the cove- 
nant. 



Tenant to 
give notice to 
sheriff of 
existence of 
covenant ; 



and sheriff to 
give notice to 
owner or 
landlord. 



By sect. 1 of 56 Geo. 3, c. 50, An Act to regulate the Sale of 
Farming Stock taken in Execution, " No sheriff or other officer 
in England or Wales shall, by virtue of any process of any 
court of law, carry off or sell or dispose of for the purpose of 
being carried off from any lands let to farm any straw threshed 
or unthreshed, or any straw of crops growing, or any chaff, 
colder or any turnips, or any manure, compost, ashes or seaweed, 
in any case whatsoever ; nor any hay, grass or grasses, whether 
natural or artificial, nor any tares or vetches, nor any roots or 
vegetables, being produce of such lands, in any case where, 
according to any covenant or written agreement, entered into 
and made for the benefit of the owner or landlord of any farm, 
such hay, grass or grasses, tares and vetches, roots or vegetables, 
ought not to be taken off or withholden from such lands, or 
which by the tenor or effect of such covenants or agreements, 
ought to be used or expended thereon, and of which covenants 
or agreements, such sheriff or other officer shall have received a 
written notice before he shall have proceeded to sale." 

By sects. 2 and 3, " The tenant or occupier of any lands let 
to farm, against whose goods any process of law shall issue, 
whereby such goods may be taken and sold, shall, on having 
knowledge of such process, give a written notice to the sheriff or 
other officer executing the same, of such covenants or agreements, 
whereof he or she shall have knowledge, and which may relate 
to and regulate, or are intended to regulate the use and expendi- 
ture of the crops or produce grown or growing thereon, and also 
of the name and residence of the owner or landlord of such lands ; 
and such sheriff or other officer shall forthwith, on executing 
such process, and before any sale shall have been proceeded in, 
send a notice by the general post to the owner or landlord of 
such lands, in all cases where such owner or landlord shall be 



HUSBANDRY PROVISIONS '. THEIR EFFECT UPON EXECUTION. 



215 



resident in any part of this United Kingdom, and shall have 
been made known to and ascertained by such sheriff or other 
officer, and also to the known steward or agent of such landlord 
or owner, in respect of such lands, stating to such owner, land- 
lord and agent, the fact of possession having been taken of any 
crops or produce hereinbefore mentioned ; and such sheriff or 
other officer shall, in all cases of the absence or silence of such 
landlord or owner, or his or her agent, postpone and delay the 
sale of such crops or produce until the latest day he lawfully can 

or may appoint for such sale ; provided always that such sheriff Sheriff may 

z, . r> dispose of 

or other officer executing such process may dispose ot any crops produce sub- 

or produce hereinbefore mentioned to any person or persons who J ect to an , , 

* . agreement to 

shall agree in writing with such sheriff or other officer, in cases expend it on 

where no covenant or written agreement shall be shown, to use 

and expend the same on such lands, in such manner as shall 

accord with the custom of the county ; and in cases where any 

covenant or written agreement shall be shown, then according to 

such covenants or written agreement ; and after such sale or 

disposal so qualified, it shall be lawful for such person or persons 

to use all such necessary barns, stables, buildings, outhouses, 

yards and fields, for the purpose of consuming such crops or 

produce, as such sheriff or other officer shall allot or assign to 

them for that purpose, and which such tenant or occupier would 

have been entitled to and ought to have used for the like purpose 

on such lands." 

By sect. 4, " Such sheriff or other officer shall, on the request Sheriff to 
of any landlord or owner who shall be aggrieved by any breach ^^ r o^er 
of such agreement, permit such landlord or owner to bring any to bring 
action or actions in the name of such sheriff or other officer, for na me. 
the recovery of damages in respect of such breach, such landlord 
or owner having nevertheless fully indemnified such sheriff or 
other officer against all costs whatsoever, and all loss and damage, 
before any such action shall be commenced." 

By sect. 5, " Such sheriff or other officer shall, before any sale Sheriff to 
of any crops or produce of any lands let to farm shall be pro- "!,, 1 , 1 1 l 1 u ! ln |[ 
ceeded in, make, by all ways and means, due inquiry within the residence of 
parish where such lands shall be situate as to the name and 
residence of the landlord or owner of such lands." 

Landlords, by sect. 6, are not to distrain for rent on pur- Landlord not 
chasers of crops severed from the soil, or other things sold f ° r TeDi 



on 



subject to agreement. purchasers. 



246 



HUSBANDRY PROVISIONS : THEIR EFFECT UPON EXECUTION. 



Sheriff not to 
sell clover, 
&c, growing 
with corn. 



Proviso for 
contracts. 



Sheriff not 
liable for 
damages, 
unless for 
wilful omis- 



Indemnity to 
sheriff, &c, 
acting under 
provisions 
of Act. 



56 Geo. 3, 
c. 50, does 
not bind 
Crown. 

Sheriff must 
sell goods, 
&c, seized 
under pre- 
rogative 
process, un- 
conditionally. 

Corn, &c, 
raised by 
manual 
labour may 
be taken in 
execution ; 



By sects. 7 and 8, " No sheriff or other officer shall, by virtue 
of any process whatsoever, sell or dispose of any clover, ryegrass 
or any artificial grass or grasses whatsoever, which shall be 
newly sown and be growing under any crop of standing corn, 
provided always that this Act shall not extend to any straw, 
turnips or other articles, which the tenant may remove from the 
farm consistently with some contract in writing." 

By sect. 9, " In every case where any action shall be brought 
against such sheriff or other officer, for any breach of or omission 
of compliance with the provisions of this Act, no plaintiff shall 
be entitled to recover any damages against such sheriff or other 
officer, unless it shall be proved on the trial of such action that 
such breach or omission was wilful on the part of such sheriff or 
other officer." 

By sect. 10, " No sheriff or under-sheriff, nor any or either of 
their deputies, agents, bailiffs or servants, nor any person or 
persons who shall purchase any hay, straw, chaff, turnips, grass 
or grasses, or other produce hereinbefore mentioned, under the 
provisions of this Act, nor his, her or their servant or servants, 
shall be deemed or taken to be a trespasser by reason of his, her 
or their coming upon or remaining in possession of any barns or 
other buildings, yards or fields, for the purpose of threshing out 
or consuming any straw, hay, turnips or other produce herein- 
before mentioned, under the provisions of this Act, or for doing 
any matter or thing whatsoever, fit and necessary to be done 
for the purpose of executing the same, and carrying into effect 
all stipulations contained in any agreement made under such 
provisions, though such acts shall have been done by such 
sheriff or other officer, and by such person or persons, his, her or 
their servants, after the return of the process under which such 
sheriff or other officer shall have acted." 

This statute (56 Geo. 3, c. 50), although passed for the pur- 
pose of general good and public benefit in promoting good 
husbandry, does not extend to bind the Crown ; therefore sales 
of goods seized under prerogative process are not within it, and 
the sheriff must sell unconditionally, nor can the sheriff sell 
crops as subject to tithes ; he must sell without any qualification. 
Rex v. Osbourne, 6 Price, 94. 

Corn, &c. raised by manual labour may be taken, and this 
may be effected by plucking an ear of corn. On the other hand 
things yielding no annual profit or which are produced irrespec- 



HUSBANDRY PEOVISIONS : THEIR EFFECT UPON EXECUTION. 217 

tive of manual labour cannot be taken. 2 Grilb. Ex. 19. Cut but not cut 
grass cannot be taken as against a prior purchaser thereof from priorpur- 
the execution debtor. Tompkimon v. Russell, 9 Price, 287. CQ aser; 
Growing grass does not come within the description of goods nor growing 
and chattels, and cannot be seized as such under a fi. fa. ; it grass * 
goes to the heir and not to the executor ; but growing potatoes Growing 
come within the description of emblements, and are deemed be Taken may 
chattels by reason of their being raised by labour and manurance. 
They go to the executor of the tenant in fee simple, although they 
are fixed to the freehold and may be taken in execution under 
afi.fa. Nor can growing fruit be seized thereunder, the same but not grow - 
belonging to the freehold and going to the heir. Per Bay ley, J., ms rm ' 
in Evans v. Roberts, 5 B. & C. 832, 835. 

" In case all or any part of the growing crops of the tenant Growing 
of any farm or lands shall be seized or sold by any sheriff or anTsoM 26 
other officer by virtue of any writ of fieri facias or other writ of under exe- 
execution, such crops, so long as the same shall remain on the liable for 
farm or lands, shall, in default of sufficient distress of the goods accrum o rent - 
and chattels of the tenant, be liable to the rent which may 
accrue and become due to the landlord after any such seizure 
and sale, and to the remedies by distress for recovery of such 
rent, and that notwithstanding any bargain and sale or assign- 
ment which may have been made or executed of such growing 
crops by such sheriff or other officer." 14 & 15 Yict. c. 25, 
s. 2. 

The law regulating emblements is that a tenant is entitled to Rigbts as to 
a crop of that species only which ordinarily repays the labour 
by which it is produced within the year in which that labour is 
bestowed, though the crop may in extraordinary seasons be 
delayed beyond that period. Hops, so far as relates to their 
annual product, fall within the above rule. But there is no 
authority to show that things which take more than a year to 
arrive at maturity are capable of being emblements, except the 
case of Kingsbury v. Collins, 4 Bing. 202, where "teazles" were 
held to be so. Per Denman, C. J., in Graves v. Weld, 5 B. & 
Ad. 105 ; 2 L. J. (N. S.) K. B. 176. But now, " where the lease altered by 
or tenancy of any farm or lands held by a tenant at rack-rent * 4 ^ ^ y ict ' 
shall determine by the death or cesser of the estate of any 
landlord entitled for his life, or for any other uncertain interest, 
instead of claims to emblements, the tenant shall continue to Tenant 
hold and occupy such farm or lands until the expiration of the occupy until 



248 



HUSBANDRY PROVISIONS : THEIR EFFECT UPON EXECUTION. 



expiration of 
current year. 



Rights as to 
away- going 
crops on ex- 
piration of 
tenancy. 



then current year of his tenancy." 14 & 15 Yict. c. 25, s. 1. 
This Act applies to all tenancies in respect of which there might 
be a claim to emblements. 

As to rights in relation to away-going crops and to straw and 
hay on the land at the expiration of the tenancy, the reader is 
referred for any necessary information thereon to Addison on 
Contracts and Chitty on Contracts. 



249 



Chapter XXI. 

FIXTURES AND EXECUTION THEREON. 

PAGE 

Introductory 249 

Fixtures between Landlord and Tenant ... - 254 
Fixtures between Mortgagor and Mortgagee- ... 260 
Fixtures between Heir and Executor, Tenant for Life and 
Remainderman, and Tenant in Tail and Reversioner - - 266 



Introductory. 

The term " fixtures " in its general sense means any annexation Fixtures 
or addition which has been affixed to or planted in the soil, 
quicquid plantatur solo, cedit so/o. But it has now acquired the 
peculiar meaning of personal chattels which have been annexed 
to the freehold, but which are removable at the will of the 
person who has annexed them. Per Parke, B., in Hallen v. 
Runder, 1 C. M. & E. 274. 

The question as to what constitutes annexation is one of some What 
difficulty and depends very largely upon the circumstances of annexation 
the case. Mere juxtaposition is not sufficient, even though the 
thing placed on the ground be of great size and weight. Nor 
svill a slight fastening necessarily imply that a thing is a 
fixture. From the quotations from judgments below and the 
cases cited under the different headings of this chapter, it may 
be gathered that annexation sufficient to render an article a 
fixture demands in each case the consideration of the two 
questions of degree and object to enable a satisfactory con- 
clusion to be arrived at. 

The law is thus briefly explained by Parke, B., in Hell a well 
v. Eastwood, 6 Ex. 312 : " The only question, therefore, is 
whether the machines when fixed were parcel of the freehold, 
and this is a question of fact, depending on the circumstances of 
each case, and principally on two considerations ; first, the mode 



250 FIXTURES, AND EXECUTION THEREON. 

of annexation to the soil or fabric of the house, and the extent 
to which it is united to them, whether it can easily he removed, 
integre, sake, et commode, or not, without injury to itself or the 
fabric of the building ; secondly, on the object and purpose of 
the annexation, whether it was for the permanent and substantial 
improvement of the dwelling, in the language of the Civil Law, 
perpetui usus causa, or in that of the Year Book, pour an profit 
del inheritance [20 Hen. 7, 13], or merely for a temporary 
purpose, or the more complete enjoyment and use of it as a 
chattel." 

In the case of Holland v. Hodgson, L. E. 7 C. P. 328, 
Blackburn, J., thus expresses himself : " Perhaps the true rule 
is, that articles not otherwise attached to the land than by their 
own weight are not to be considered as part of the land, unless 
the circumstances are such as to show that they were intended 
to be part of the land, the onus of showing that they were so 
intended lying on those who assert that they have ceased to be 
chattels, and that, on the contrary, an article which is affixed to 
the land even slightly is to be considered as part of the land, 
unless the circumstances are such as to show that it was intended 
all along to continue a chattel, the onus lying on those who 
contend that it is a chattel. This last proposition seems to be 
in effect the basis of the judgment of the Court of Common 
Pleas delivered by Maule, J., in Wilde v. Waters [16 C. B. 637; 
24 L. J. C. P. 193]. This, however, only removes the difficulty 
one step, for it still remains a question in each case whether the 
circumstances are sufficient to satisfy the onus. In some cases, 
such as the anchor of the ship or the ordinary instance given of 
a carpet nailed to the floor of a room, the nature of the thing 
sufficiently shows it is only fastened as a chattel temporarily, 
and not affixed permanently as part of the land. But ordinary 
trade or tenant fixtures, which are put up with the intention 
that they should be removed by the tenant (and so are put up 
for a purpose in one sense only temporary, and certainly not for 
the purpose of improving the reversionary interest of the land- 
lord), have always been considered as part of the land, though 
severable by the tenant. In most, if not all, of such cases, the 
reason why the articles are considered fixtures is probably that 
indicated by Wood, Y. C.,in Boyd v. Shorrock [L. R. 5 Eq. 78], 
that the tenant indicates by the mode in which he puts them up 
that he regards them as attached to the property during his 
interest in the property." 



INTRODUCTORY. 251 

In Wansbrough v. Mat on, 4 Ad. & E. 884, it was held that a 
tenant was entitled, at the end of his term, to remove a wooden 
barn erected by him on a brick and stone foundation, let into 
the ground, the barn however resting thereon merely by weight. 
Per Coleridge, J., at p. 889 : " In the absence of exception by 
custom, or in favour of trade, the rule is clear. The tenant has 
no right to remove the whole or any part of what is fixed to the 
freehold. The question therefore is, what is fixed ? That is, 
in the present case, what does the barn consist of ? Does it 
include the stone caps, or merely the woodwork ? I apprehend 
that the woodwork is the whole barn. That wooden barn is 
supported by mere pressure. And this meets the argument 
suggested, as to the criterion being whether one part of the 
building be erected with a view to the other." 

The reader is also referred to the judgment in the case of 
Elliott v. Bishop, quoted below under the head of " Fixtures 
between Landlord and Tenant." 

The right of severance and removal differs according to the Right of re- 
relative position in which the owner of the freehold and the ™ cordmo- tcf 
person who has annexed may stand. As between heir and exe- relative posi- 
cutor, as between the tenant for life or in tail and the remainder- f freehold 
man or reversioner, and as between mortgagor and mortgagee, and P! rson 

00 & © > annexing. 

the old rule that whatever is attached to the soil becomes part 
thereof, quicquid plantatur solo, cedit solo, is still applied (Holland 
v. Hodgson, L. R. 7 C. P. 328 ; Cthnie v. Wood, L. R. 3 Ex. 257; 
Lonrjhottom v. Berry, L. R. 5 Q,. B. 123, 137 ; Mather v. Fraser, 
2 K. & J. 536 ; 25 L. J. Ch. 361 ; and Fisher v. Dixon, 12 C. & 
F. 312), whilst as between landlord and tenant such rule has, in 
the absence of contract or any contrary custom, and under 
certain conditions, been relaxed in the tenant's favour in respect 
of trade and domestic or ornamental fixtures. Helhuccll v. 
Eastwood, 6 Ex. 295; 20 L. J. Ex. 154; Elliott v. Bishop, 10 
Ex. 496 ; Holland v. Hodgson, supra ; Winn v. Ingilby, 5 B. & 
Aid. 625 ; and Place v. Fagg, 4 M. & R. 277. But until the 
Agricultural Holdings Acts, infra, no such indulgence extended 
to agricultural fixtures. The law is thus stated by Lord 
Elleuborough in the leading case of Fliers v. Maw, 3 East, 38, 51 : 
" Questions respecting the right to what are ordinarily called 
fixtures principally arise between three classes of persons. 
First, between different descriptions of representatives of the 
same owner of the inheritance, viz., between his heir and exe- 
cutor. In this first case, i.e., as between heir and executor, the 



252 FIXTURES, AND EXECUTION THEREON. 

rule obtains with the most rigour in favour of the inheritance, 
and against the right to disannex therefrom, and to consider as 
a personal chattel, anything which has been affixed thereto. 
Secondly, between the executors of the tenant for life or in tail 
and the remainderman or reversioner ; in which case the right to 
fixtures is considered more favourably for executors than in the 
preceding case between heir and executor. The third case, and 
that in which the greatest latitude and indulgence has always been 
allowed in favour of the claim to having any particular articles 
considered as personal chattels as against the claim in respect 
of freehold or inheritance, is the case between landlord and 
tenant. But the general rule on this subject is that which 
obtains in the first mentioned case, i.e., between heir and execu- 
tor ; and that rule is, that where a lessee, having annexed any- 
thing to the freehold during his term, afterwards takes it away, 
it is waste. But this rule at a very early period had several 
exceptions attempted to be engrafted upon it, and which were at 
last effectually engrafted upon it, in favour of trade and of those 
vessels and utensils which are immediately subservient to the 
purposes of trade." 
In what cases The sheriff under a writ of fieri facias or other similar process 
seize fixtures cannot take in an execution against the owner of the freehold 
m execution, things affixed to the freehold and which would go to the heir 
and not to the executor. Winn v. Ingilby, 5 B. & Aid. 625 ; 1 
D. & E. 247 ; Mather v. Fraser, 2 K. & J. at p. 550 ; Scorell v. 
Boxall, 1 Y. & J. per Hullock, B., at p. 398. The question 
whether he can take things in execution against a life tenant 
which the executor of the life tenant is entitled to as against 
remaindermen or reversioners does not seem to have been 
directly judicially considered, but the tendency of the decisions 
seems to point to the conclusion that the sheriff can take such 
things in execution. In the case of a tenant, the sheriff may 
seize any fixtures which the tenant may remove as against his 
landlord, and he may also seize any interest that the tenant may 
have in any fixtures which are the subject of the demise for his 
term. But it must be borne in mind that in the absence of any 
contract such right is limited to the duration of the tenancy or 
to such further period of possession by the tenant as he may 
hold the premises under a right to still consider himself tenant. 
Wee ton v. Woodeoelc, 7 M. & W. 14 ; and see In re Lavies, Ex 
parte Stephens # Co., 7 Ch. D. 127; 47 L. J. Bk. 22; im&Pugh 
v. Art on, L. R. 8 Eq. 628. This right of seizure on the part of 



INTRODUCTORY. 253 

the sheriff was first recognized in relation to trade fixtures 
(Poole's Case, 1 Salk. 368) ; and some doubt was subsequently 
expressed as to whether other species of fixtures were equally 
liable. But now it is clear that all fixtures of whatever 
nature, over which the person proceeded against has a right, 
may be taken (Place v. Fagg, 4 M. & E. 277; Minshallv. Lloyd, 
2 M. & W. per Parke, B. at p. 459), with the exception, per- 
haps, of fixtures of considerable magnitude, such as a windmill, 
resting on but not annexed to the ground. Steward v. Lombe, 
1 Brod. & B. 506, 512. 

But as the right of a sheriff to sever and remove fixtures is only Right of 

ill- i sheriff to 

equal to that of the person on whom he levies an execution, he seve r only 
cannot seize as chattels things which a tenant has precluded him- ^^ to th& } 
self from removing. Dumerguev. Rumsey, 2 H. & C. 777; 33 L.J. debtor. 
Ex. 88 ; R. v. Topping, M'Cle. & Y. 544 ; Richardson v. Ardley, 
38 L. J. Ch. 508; Duke of Beaufort v. Bates, 3 De Gr. F. & J. 
381 ; 6 L. T. 82 ; 8 Jur. N. S. 270. Such fixtures, however, if 
expressly the subject of a demise may be seized together with 
the premises for the lessee's interest in them, though not as 
divided chattels separate from the freehold. Ryall v. Rolle, 1 
Atk. 165 ; Gordon v. Harper, 7 T. R. 11, 12. 

The sheriff must separate and sell fixtures over which he has When sheriff 
a right of severance, apart from the leasehold, if he cannot sell fixtures 
them together. Barnard v. Leigh, 1 Stark. 43. separately. 

The sheriff cannot seize articles which have been fixtures and Sheriff cannot 
which the tenant has unlawfully severed ; so in Far rant v. Thomp- unlawfully*"* 
son, 5 B. & Aid. 826, where a mill with mill machinery was severed by 

• li tenant. 

demised for a term and the tenant without leave severed the 
machinery, it was held that the property in the machinery 
reverted to the landlord and could not be taken under a f. fa. 
See also Richardson v. Ardley, 38 L. J. Ch. 508. 

Section 146 of the Bankruptcy Act, 1883 (46 & 47 Yict. Sheriff, in 
c. 52), provides that a sheriff shall not under a writ of elegit writof«%tf 
deliver the goods of a debtor nor shall a writ of elegit extend to " iav ddiver 
goods. As fixtures until severance remain part of the land, so 
it seems that a sheriff in executing a writ of elegit may deliver 
fixtures, which are not goods within the meaning of the Act, 
goods being defined in section 168 as " all personal chattels." 



254 FIXTURES, AND EXECUTION THEREON. 



Fixtures between Landlord and Tenant. 

As has already been pointed out, greater indulgence is shown 
to the tenant in the matter of severing and removing fixtures 
than to any other kind of occupier. For reasons of public policy 
and convenience, and for the furtherance of trade this greater 
latitude has arisen, and now a tenant is entitled during the con- 
tinuance of his term and such period after as agreement with his 
landlord permits, to sever and remove certain classes of fixtures, 
viz., trade fixtures, and fixtures put up for ornament or domestic 
use. But this right of severance and removal may be modified 
by the terms of the lease, or the tenant may have entirely pre- 
cluded himself from exercising the rights which his position as 
such entitles him to. The reader is referred to the notes on the 
case of Elwes v. Maw, 9th ed. Sm. L. 0. Vol. II. p. 182, to "Wood- 
fall's Landlord and Tenant, and to Amos and Ferard on Fixtures 
(especially Appendix B) , for a detailed account of the relations 
of landlord and tenant with regard to fixtures, as it is beyond 
the scope of this work to deal with such a subject at length. 
Removal of The history of the right to remove trade fixtures is traced in 

by tenant. Elwcs v. Maw, and the cases on the subject are numerous. The 
modern view of the law is thus laid down by Martin, B., in the 
case of Elliott v. Bishop, 10 Ex. 496. " As society progressed, 
and tenants for lives or for terms of years of houses, for the more 
convenient or luxurious occupation of them, or for the purposes 
of trade, affixed valuable and expensive articles to the freehold, 
the injustice of denying the tenant the right to remove them 
at his pleasure, and of deeming such things practically forfeited 
to the owner of the fee simple by the mere act of annexation, 
became apparent to all ; and there long ago sprang up a right, 
sanctioned and supported both by the Courts of law and equity, in 
a temporary owner or occupier of real property or his representa- 
tive, to disannex and remove certain articles, although annexed 
by him to the freehold, and these articles have been denominated 
' fixtures ' ; and the best definition with which I am acquainted 
is that given in the judgment of this Court in If a lien v. Bunder 
[1 C. M. & R. 266], viz., that they are articles which were ori- 
ginally personal chattels, and which, although they have been 
annexed to the freehold by a temporary occupier, are nevertheless 
removeable, and of course saleable, at the will of the person who 
has annexed them. The term, however, does not include every- 
thing which is fixed, and so rendered immovable. The object 



FIXTURES BETWEEN LANDLORD AND TENANT. 255 

and purpose of the annexation in fixing must be looked at ; and 
if a chattel be fixed to the building merely for the more complete 
enjoyment and user of it as a chattel, it is not a fixture at all in 
the technical legal meaning of the word, but still remains a 
chattel. Upon this principle, it was decided, in the case of 
Hellawett v. Eastwood [6 Ex. 295], that cotton-spinning machines, 
screwed into and fixed firmly to the floor, were chattels and dis- 
train able for rent, From the above explanation of the term 
' fixtures,' it is obvious that the expression ' landlord's fixtures ' 
is a most inaccurate one. All the materials of a house are, before 
they are fixed, chattels. The bricks, the mortar, the timber, the 
iron, and all the other materials of a house were originally mere 
personal chattels ; and there can be no doubt, that, if the land- 
lord builds a house, and puts in for the purpose of completing 
the house, for instance, chimney-pieces, grates, stoves, bells, &c., 
which are in the house when let to the tenant, they all remain 
the property of the landlord, and are part of the house, and are 
only to be enjoyed by the tenant during the term, and are not 
removable by him at all, any more than the walls or roofing or 
flooring. It seems, therefore, inaccurate to apply the term fix- 
tures to anything which belongs to the landlord ; but probably 
what is meant by the term ' landlord's fixtures ' are such articles 
as, when once annexed by the tenant, cannot be disannexed or 
removed by him ; and it is in this sense I understand the term 
to have been used by the learned counsel for the plaintiff. There 
is no doubt, as was stated by him in his argument, that where 
there is a covenant in the lease in regard to the fixtures, the 
right of the parties in respect of them must be regulated by the 
covenant ; and his contention was, that, upon the true construc- 
tion of the covenants in the present ease, the tenant would be 
entitled to remove every fixture, which, by the general rule of 
law as between landlord and tenant, independent of all contract 
or covenant, he would have a right to remove. . . . Where 
a tenant covenants to deliver up ' marble and other chimney- 
pieces, and all other fixtures and articles in the nature of fixtures, 
which shall at any time during the term be fixed or fastened to 
the premises,' he must leave all fixtures which are annexed for 
the occupation and enjoyment as a house ; for instance, grates 
or stoves built in the usual way, bells, the wires of which are 
inserted in the walls, presses fixed for the more convenient use 
of the individuals inhabiting the house, whoever they may be — 
in short, all fixtures which render the house more convenient 



256 FIXTURES, AND EXECUTION THEREON. 

and habitable as a house ; and, assuming that the articles de- 
nominated tenant's fixtures in this case are of this character 
(which I have no doubt they are), in my opinion the tenant 
under the lease would have no title to or right to sell or remove 
them, but that they would belong to the landlord, and the tenant 
removing them would be liable to an action at the suit of the 
Marquis of Camden ; and that, therefore, as to the value of these 
articles, the defendant is entitled to our judgment. As to the 
other description of fixtures, I think the plaintiff is entitled to 
recover their value. I assume them to be fixtures put up ex- 
clusively for the carrying on of the trade, or for ornamenting 
and beautifying the house as a public-house. In my opinion 
such fixtures are entirely out of the covenants, and the rights of 
the parties in respect of them are regulated by the general law. 
In the absence of contract, trade fixtures are clearly removable 
by the tenant, and he by sale may give a good title to the pur- 
chaser." See also the judgment of Piatt, B. And see per Wood, 
Y.-C, in Mather v. Fraser, ante, and especially his quotation of 
Lord Chancellor Cranworth's judgment in Ex parte Barclay, 
5 Be G. M. & G. 403. 

In Whitehead v. Bennett, 27 L. J. Ch. 474 — 476, on a ques- 
tion between landlord and tenant as to trade fixtures, it was 
held, that the tenant could not remove buildings built of brick, 
with brick foundations let into the soil, although erected for the 
sole purpose of trade, although machinery, engines, vats, and 
utensils, with their accessories, might be removed. Kindersley, 
Y.-C, in the course of his judgment, said : " Among the many 
cases upon this subject there is not one which has determined 
that, even in the most favourable circumstance of landlord and 
tenant, a tenant has a right to remove any building which he 
has erected, merely because it is used only for the purpose of 
trade ; and if the argument used in this case is allowed to pre- 
vail, it can only do so in such a manner as may be followed up 
to its legitimate consequences, and it would be laying down 
a rule that whatever a tradesman erected, however substantial, 
and however firmly let into the freehold, yet if the identity is 
preserved, the tenant might remove it. Such a rule is esta- 
blished nowhere. Not only is there no such decision, but there 

is not even a dictum that can bear any such construction 

No doubt great favour has been shown, and should always be 
shown, towards trade, and the modern cases have relaxed the 
rigour of the old authorities in this respect, but some limit must 



FIXTURES BETWEEN LANDLORD AND TENANT. 257 

be put to this indulgence, and the cases seem to me to have 
gone quite as far as they ought to go. The question, then, 
turns upon the nature of these particular buildings. With 
respect to that which is erected upon the walls forming a pas- 
sage, it is incapable of being removed in an integral condition, 
and the same observation applies to the engine-house, although 
it may in some sense be called an accessory to the engine. But 
it is not a mere shed, on the contrary, it is a brick building let 
into the soil. Take the common case of those gigantic buildings 
which are raised storey after storey, fitted with spinning- jennies, 
drums, wheels, &c, which can only be used in such a building. 
It is clear, ex concerns, that you might remove the machinery, 
or the engine, however large, which is usually in the lower 
portion, and which works the whole machinery ; but if the 
argument as to accessories were carried out, you might allow 
the entire building to be removed, and it is impossible to see 
where such a doctrine would stop. The present case is precisely 
the same on a smaller scale ; and with respect to all and each of 
these buildings, my opinion is, that they cannot be brought 
within the proper legal definition of trade fixtures, removable 
by the tenant." And see Wake v. Hall, 8 App. Ca. 195 ; 48 
L. T. 834. See, also, in relation to the right to take in execu- 
tion rails laid down by a mining lessee, Antrim {Earl) v. Dobbs, 
30 L. E. Ir. 424. 

Fixtures for the purpose of ornament or convenience may be Removal of 
removed by the tenant at the expiration of his lease unless they omamentor 
are of such a nature as to be considered a permanent improve- convenience 

by tenant. 

ment, and their removal would materially damage the house or 
land to which they are affixed. On this subject, Dallas, C. J., 
in his judgment in the case of Buckland v. Butterfield, 2 Brod. 
& B. p. 58, says : "It is clear that many things of an orna- 
mental nature may be in a degree fixed, and yet during the 
term may be removed ; and it is equally clear that there may 
be that sort of fixing or annexation, which, though the building 
or thing annexed may have been merely for ornament, will yet 
make the removal of it waste. The general rule is, that where 
a lessee, having annexed a personal chattel to the freehold 
during his term, afterwards takes it away, it is waste. In the 
progress of time this rule has been relaxed, and many exceptions 
have been grafted upon it. One has been in favour of matters 
of ornament, as ornamental chimney pieces, pier glasses, hang- 
ings, wainscot, fixed only by screws and the like." In the 

M. S 



258 



FIXTURES, AND EXECUTION THEEEON. 



Removal of 
agricultural 

fixtures by 
tenant. 

Tenant may 
remove build- 
ings, &c, 
erected on 
farms, unless 
landlord elect 
to take same. 



Removal of 
fixtures by 
tenant under 
Agricultural 
Holdings Act, 
1383. 



Provisoes. 

Payment of 
rent. 



1 i i moval to 
be careful. 



above case, it was held that a conservatory erected on a brick 
foundation and attached to a dwelling-house, and communi- 
cating with it by windows opening into the conservatory, and 
a flue passing into the parlour chimney, becomes part of the 
freehold and cannot be removed by the tenant. See also 
Gri/mes v. Boweron, 6 Bing. 437. 

Referring to agricultural fixtures, by sect. 3 of 14 & 15 Yict. 
c. 25 (an Act to improve the law of landlord and tenant in 
relation to, inter alia, tenants' fixtures), the tenant may remove 
farm or other buildings, engines or machinery (however affixed 
to the freehold, and notwithstanding they may consist of sepa- 
rate buildings) erected by him, either for agricultural purposes 
or for the purposes of trade and agriculture, at his own cost, 
with his landlord's previous written consent (and not under any 
obligation in that behalf), subject to any consequential injury 
to the landlord's land or buildings, or to the tenant otherwise 
putting such land or buildings into their original condition, and 
to his giving his landlord one calendar month's previous notice 
in writing of such intention, and to the latter's right of option 
to purchase such fixtures at a value to be ascertained by arbi- 
tration. 

By sect. 34 of the Agricultural Holdings (England) Act, 
1883 (46 & 47 Vict. c. 61), which section repealed and sub- 
stantially reproduced a similar section in the Act of 1875 (38 & 
39 Yict. c. 92), s. 53, "where after the commencement of this 
[1st January, 1884] Act a tenant affixes to his holding any 
engine, machinery, fencing, or other fixture (a), or erects any 
building for which he is not under this Act or otherwise entitled 
to compensation, and which is not so affixed or erected in pur- 
suance of some obligation in that behalf or instead of some 
fixture or building belonging to the landlord, then such fixture 
or building shall be the property of and be removable by the 
tenant before or within a reasonable period after the termination 
of the tenancy, provided as follows : — 

" (1) Before the removal of any fixture or building the tenant 
shall pay all rent owing by him, and shall perform or 
satisfy all other his obligations to the landlord in 
respect of the holding : 

" (2) In the removal of any fixture or building the tenant shall 



(>i) According to Woodfall on Landlord and Tenant, p. 672, ornamental 
but not trade fixtures are included in the expression ' ' other fixtures." 



FIXTURES BETWEEN LANDLORD AND TENANT. ^59 

not do any avoidable damage to any building or other 

part of the holding : 
" (3) Immediately after the removal of any fixture or building Tenant to 

the tenant shall make good all damage occasioned to any j^a j^°° 

building or other part of the holding by the removal : 
" (4) The tenant shall not remove any fixture or building Notice of 

• i-i j • • ,1 » • i- ',• removal to 

without giving one month s previous notice m writing i an aiord. 
to the landlord of the intention of the tenant to 
remove it : 
" (5) At any time before the expiration of the notice of Option of 
removal the landlord, by notice in writing given by purc hase on 
him to the tenant, may elect to purchase any fixture c lvm s notice, 
or building comprised in the notice of removal, and 
any fixture or building thus elected to be purchased 
shall be left by the tenant, and shall become the pro- 
perty of the landlord, who shall pay the tenant the 
fair value thereof to an incoming tenant of the hold- 
ing ; and any difference as to the value shall be 
settled by a reference under this Act as in case of 
compensation (but without appeal)." 
By sect. 54, " Nothing in this Act shall apply to a holding Nature of 
that is not either wholly agricultural or wholly pastoral, or in wn ich Act 
part agricultural, and as to the residue pastoral, or in whole or applies. 
in part cultivated as a market garden, or to any holding let to 
the tenant during his continuance in any office, appointment, 
or employment held under the landlord." 

By sect. 60, " Except as in this Act expressed, nothing in General 
this Act shall take away, abridge, or prejudicially affect any ^^f. 
power, right, or remedy of a landlord, tenant, or other person 
vested in or exerciseable by him by virtue of any other Act or 
law, or under any custom of the country, or otherwise, in respect 
of a contract of tenancy or other contract, or of any improve- 
ments, waste emblements, tillages, away-going crops, fixtures, 
tax, rate, tithe rent-charge, rent, or other thing." 

The restrictions on a tenant's right of removal in these Acts 
must be carefully borne in mind, especially the necessity in 
every case of a month's notice to the landlord being given. 
Wherever the Acts do not apply, the old common law rule laid 
down in Elwes v. Maw, 3 East, 38, still holds good and in such 
case the tenant has no right to remove fixtures erected by him 
for merely agricultural purposes. 

s2 



260 



FIXTURES, AND EXECUTION THEREON. 



Articles fixed 
to freehold by 
nails, kc. pass 
to mortgagee. 



Machinery, 
&c. fixed to 
freehold pass 
to mortgagee. 



Trade fixtures 
annexed to 
freehold pass 
to mortgagee. 



Fixtures between Mortgagor and Mortgagee. 

Supplementing the above general rule as between mortgagor 
and mortgagee, it may be generally taken that articles fixed to 
the freehold by nails, screws, solder, or any other permanent or 
quasi-permanent means, though merely for the more convenient 
user or for steadiment, pass with the freehold or leasehold and 
belong to the legal or equitable mortgagee of the property, even 
though such articles can be actually removed without any 
appreciable damage to the freehold. See Ex parte Astbury, Re 
Richards, L. E. 4 Ch. 630 ; Climie v. Wood, L. E. 3 Ex. 257 ; 
Longbottom v. Berry, L. E. 5 Q. B. 123 ; Holland v. Hodgson, 
L. E. 7 C. P. 328 ; Mather v. Fraser, 2 K. & J. 536 ; 25 L. J. 
Ch. 361 ; and Meux v. Jacob, L. E. 7 H. L. 481 ; 44 L. J. Ch. 
481. See also Cross v. Barnes, 46 L. J. Q. B. 479 ; 36 L. T. 
693. It will be borne in mind that in considering these cases 
the principle of the cases relating to landlord and tenant, in 
which the strict law has been relaxed for the furtherance of 
trade, must be discarded. 

In Mather v. Fraser, supra, manufacturers mortgaged the 
land, mills, or factories at which the business was carried on, 
and of which they were the absolute owners, together with the 
steam engine, steam boilers, mill, gear, millwright works and 
machinery then or thereafter to be fixed to the said land, 
hereditaments and premises, together with all out-offices, edifices, 
fixtures, &c. It was held, inter alia, that the mortgagees were 
entitled as against the assignees to all machinery fixed to the 
freehold. 

In Climie v. Wood, supra, Kelly, C. B., said : " The question, 
therefore is whether, as between mortgagor and mortgagee, 
trade fixtures are removable by the mortgagor .... There 
have been several cases where the Courts have decided that, 
upon the true construction of the mortgage deeds, trade fixtures 
were removable by the mortgagor, but not one to show that such 
right exists without a special provision. A mortgage is a security 
or pledge for a debt, and it is not unreasonable if a fixture be 
annexed to land at the time of a mortgage, or if the mortgagor 
in possession afterwards annexes a fixture to it, that the fixtures 
shall be deemed an additional security for the debt, whether it 
be a trade fixture or a fixture of any other kind. It has already 
been observed that no authority has been cited to show that trade 
fixtures may be removed by the mortgagor, but there are several 



FIXTURES BETWEEN MORTGAGOR AND MORTGAGEE. 



261 



to the contrary ; and unless we are prepared to overrule them, 
our judgment must be adverse to the plaintiff. It is unnecessary 
to refer to cases earlier than Ex parte Cotton [2 M. D. & De Gr. 
720]. The case was deoided in the Court of Eeview in Bank- 
ruptcy. A brewery had been mortgaged, and afterwards new 
and additional trade fixtures had been erected by the mortgagor. 
He became bankrupt, and the mortgagee was held entitled to 
the new fixtures against the assignee ; and Sir John Cross, in 
delivering judgment, said : ' By the general rule of law, fixtures 
belong to the premises to which they are affixed, as between 
mortgagor and mortgagee, without any such distinction as that 
of tenant's fixtures.' .... The case of Cullmck v. Swindell 
[L. R. 3 Eq. 24!)], was decided in 1866 by Lord Romilly. He 
stated that he would follow Ex parte Cotton [2 M. D. & De Gr. 
720], and hold that fixtures, although trade fixtures, and put up 
for the purpose of carrying on the business, and although put up 
since the date of the mortgage, so far as they are affixed to the 
freehold, go with it to the mortgagee. This is a stronger case 
than the present, for here the trade fixtures were upon the free- 
hold at the time of the mortgage, and all the authorities seem to 
show that they pass with the land. The result is that the old 
maxim of Quicquid plantatur solo, so/o ccdit, applies in all its 
integrity to the relation of mortgagor and mortgagee, and that 
trade fixtures constitute no exception. It follows from this 
that the findings of the jury, that the steam engine and boiler 
were fixed by the mortgagor for their better use, and not to 
improve the inheritance, and that they could be removed without 
any appreciable damage to the freehold, become immaterial, for 
the right of the mortgagee attaching by reason of the annexation 
to the land, the intention of the mortgagor in respect of them 
cannot prevail against the legal effect of the deed." 

Moreover, everything which is a necessary or essential part of Necessary or 
a trade fixture passes with the fixture. Ex parte Astbury, In re o^ti-adr fix- 
Richards, L. R. 4 Ch. 630. In this case, an iron manufacturer tore pass witii 

fixture. 

made an equitable mortgage of his rolling mills, of which 
he held a lease, and shortly afterwards became bankrupt. 
Besides the fixed machinery, the mills contained the follow- 
ing chattels used in the manufactiu'e : — (1) A large number 
of duplicate iron rolls of various sizes, made to be fitted 
into the machine, and used for different sizes of iron ; some 
of these were fitted to the machine, and had ]^c\\ used, 
and others had not yet been fitted. (2) Straightening 
plates, which were broad iron plates, embedded in the floor 



262 FIXTURES, AND EXECUTION THEEEON. 

for straightening the iron when taken out of the fur- 
nace. (3) Weighing machines, which were deposited in 
holes dug in the earth and lined with brickwork, so that the 
weighing plate was level with the surface of the ground, but 
which were not fixed to the brickwork. It was here held on a 
case stated in the bankruptcy between the mortgagees and 
the assignees, first : that such of the rolls as had been fitted to 
the machine were fixtures, and passed to the mortgagees, but 
that such of the rolls as had not been fitted to it were not fixtures, 
and belonged to the assignees ; secondly, that the straightening 
plates were fixtures, and passed to the mortgagees ; and thirdly, 
that the weighing machines were not fixtures, and belonged to 
the assignees. Metropolitan Counties Society v. Brown, 26 Beav. 
454, distinguished. Sir Gr. W. Giffard, L. J., thus stated the 
principle : " With respect to the law, it is admitted that where 
there is a mortgage of a manufactory, and part of the machinery 
used in it is a fixture, that part passes. We have, therefore, to 
determine what, according to the law, are, in a proper sense, 
fixtures. There are two dicta which will be sufficient to guide 
us for the present purpose. In Mather v. Fraser [2 K. & J. 
536], it was decided that the article must be an essential part of 
the machine. I think that was all that was necessary to lay 
down in that case. The dictum of Lord Cottenham in Fisher v. 
Dixon [12 C. & F. 312] was that all ' belonging to the machine ' 
would pass, and I should say in this case the proper test to lay 
down would be that the chattel must be ' something which 
belongs to the machine as part of it.' ' He held also that the 
fact of the mortgagor being a leaseholder made no difference on 
this point. This decision was followed in Longbottom v. Berry, 
L. E. 5 Q. B. 123 ; and Holland v. Hodgson, L. R. 7 C. P. 328. 
In absence of Moreover, in the absence of an intention to the contrary being 
tention, a expressed in the mortgage deed, a mortgage whether of lease- 
mortgage will k } j or f re£i [ es t a te will pass all fixtures to the mortgagee, 
pass fixtures m *■ ° ° 

to mortgagee, notwithstanding that only some of the fixtures have been 

specified in the mortgage deed. When, however, the mortgage 
is by demise, the right to sever the fixtures remains in the 
mortgagor at the end of the mortgage term, but the mortgagee 
has the right to use them during that terra. The Southport and 
West Lancashire Banking Co. v. Thompson^ 37 Ch. D. 64; 57 
L. J. Ch. 114 (the observations of Lord Blackburn (then 
Blackburn, J.) in Uawtrij v. Butlin, L. R. 8 Q. B. 290 ; 42 L. J. 
Q,. B. 163, explained) ; and see the judgment of "Cotton, L. J., 
in this case. So in the case of a mortgage of a dwelling-house 



FIXTURES BETWEEN MORTGAGOR AND MORTGAGEE. 203 

and premises and all fixtures therein, the intention of the 
parties, one in mortgaging, and the other in taking the security 
for the amount advanced, must be considered ; and whatever is 
substantially part of the house, so that it cannot be taken away 
without depriving the house of what was intended to be used 
with the building, should be considered as fixtures. Smith v. 
Mackre, TV. N. (1884), p. 14. Pearson, J., in that case said he 
considered that the cornices and poles were fixtures, but not the 
hangings and valances which were apart from the cornices ; the 
pier glasses in frames were fixtures, and all the gas fittings and 
gaselieis, including the reading lamp, which was screwed to one 
particular pipe ; but that the mantel boards which were not 
fixed would not be included as fixtures. 

Necessary parts of mortgaged machinery, like leather driving Necessary 
belts, though readily removable, when such machinery is out of mor^a^ed 
gear, pass to the mortgagee. Sheffield and South Yorkshire machinery 
Permanent Benefit Building Society v. Harrison, 15 Q. B. D. mortgagee. 
358 ; 54 L. J. Q. B. 15 ; 51 L. T. 649. 

A tenant (under a mortgagor) of mortgaged premises, who Tenant of 
has brought trade fixtures thereon, can remove the same as p rem isel may 
against both mortgagee and mortgagor, on the ground that, remove fix- 
although between a mortgagor and mortgagee the latter is 
entitled to all fixtures upon the mortgaged premises at the time 
of the mortgage and which may be subsequently brought there 
by the mortgagor, such tenant is a stranger to the mortgage. 
Sanders v. Davis, 15 Q. B. D. 218 ; 54 L. J. Q. B. 576 ; but 
see Watkins v. Land Securities Company, TV. N. (1885), 211 
(C. A). 

An attornment clause being merely an additional security, Fixtures 

fixtures added by a mortgagor after the date of a mortgage da j. e f mort 

containing an attornment clause have been held to pass to the s a = e > with 
-n -r. t tt' • -i n ru V ne\r attornment 

mortgagee. Ex parte Punnett, In re Kitclnn, lb Oh. 1). 22b. clause. 

Fixtures were expressly mentioned in the Bills of Sale Act, 
1854 (17 & 18 Vict. c. 36), sect. 7, as included in the expression 
"personal chattels." Under this Act, however, it was held that Fixtures 
if the fixtures were included in the operative part of a convey- ^^free- ° 
ance, or an assignment of land, and no separate disposition for holds, &c. do 
them apart from the land was provided for, no registration registration, 
was necessary. Mather v. Fraser, 2 K. & J. 536 ; 25 L. J. Ch. 
361; Holland v. Hodgson, L. R. 7 0. P. 328; Longbottom V. 
,y, L. R. 5 Q. B. 123, 137. And it is now enacted by the 
Bills of Sale Act, 1878 (41 & 42 Viet. c. 31), sect. 4, that for 



264 



FIXTURES, AND EXECUTION THEREON. 



but if assigned 
separately, 
registration 
necessary. 



Definition 
of ' ' trade 
machinery." 



Machinery 
excluded from 

the Act. 



Definition of 
' ' factory or 
workshop." 



Assignment 

of machinery 
excluded docs 



the purposes of the Act "the expression 'personal chattels' shall 
not include [inter alia] fixtures (except trade machinery as here- 
inafter defined) Avhen assigned together with a freehold or lease- 
hold interest in any land or building to which they are affixed." 
But under the Bills of Sale Act, 1854, it was held that if the 
fixtures were assigned separately, or the deed comprised a power 
to dispose of them separately from the land, registration was 
required. Waterfall v. Penistone, 6 El. & Bl. 876 ; Havtnj v. 
Butlin, L. R. 8 Q. B. 290; 42 L. J. Q. B. 163; In rjJEslick, 
Ex parte Alexander, 4 Ch. D. 503; 46 L. J. Bank. 30; 25 
W. R 260. And now by the Bills of Sale Act, 1878, sect. 4, 
for the purposes of the Act, fixtures, when separately assigned or 
charged, are included in the expression " personal chattels," and 
therefore registration is necessary. 

By sect. 5 of the Bills of Sale Act, 1878, "For the purposes 
of this Act, trade machinery means the machinery used in or 
attached to any factory or workshop ; 

1st. Exclusive of the fixed motive powers, such as the water- 
wheels and steam engines, and the steam boilers, 
donkey engines, and other fixed appurtenances of the 
said motive power ; and, 
Exclusive of the fixed power machinery, such as the 
shafts, wheels, drums, and their fixed appurtenances, 
which transmit the action of the motive powers to the 
other machinery, fixed and loose ; and 
Exclusive of the pipes for steam, gas and water, in the 
factory or workshop. 
The machinery or effects excluded by this section from the 
definition of trade machinery shall not be deemed to 
be "personal chattels" within the meaning of this 
Act. 
"Factory or workshop" means any premises on which any 
manual labour is exercised by way of trade, or for 
purposes of gain, in or incidental to the following 
purposes or any of them ; that is to say, 

(a) In or incidental to the making any article or part of 

an article ; or 

(b) In or incidental to the altering, repairing, ornament- 

ing, finishing, of any article ; or 

(c) In or incidental to the adapting for sale any article. 
The effect of sect. 5 of the Bills of Sale Act, 1878, is that the 

articles which are thereby excluded from the definition of trade 



2nd. 



3rd. 



FIXTURES BETWEEN MORTGAGOR AND MORTGAGEE. 265 

machinery therein contained are not " personal chattels " within not require 
the meaning of the Act for any purpose whatever, and conse- 
quently any assignment of such articles does not require regis- 
tration under the Act ; and this applies to such articles though 
they are not actually affixed to the land with which they are 
assigned, but (by virtue of an easement) to other land belonging 
to a stranger. Tqpham v. Greenside Glazed Fire Brick Co., 37 
Ch. D. 281 ; 57 L. J. Ch. 583. 

By sect. 7 of the above (1878) Bills of Sale Act " no fixtures Fixtures not 
(inter alia) shall be deemed, under this Act, to be separately se parately 
assigned or charged by reason only that they are assigned by assigned 
separate words, or that power is given to sever them from the passes by 
land or building to which they are affixed, without otherwise sam< l mstru_ 
taking possession of or dealing with such land or building, if by 
the same instrument any freehold or leasehold interest in the land 
or building to which such fixtures are affixed is also conveyed or 
assigned to the same person or persons. The same rule of con- 
struction shall be applied to all deeds or instruments, including 
(inter alia) fixtures, executed before the commencement of this 
Act, and then subsisting and in force, in all questions arising 
{inter alia) in execution of any process of any Court, which shall 
be issued after the commencement of this Act." It has been 
held in In re Armytage, Ex parte Moore, 14 Ch. D. 379 ; 49 L. J. 
Bank. GO, that sect. 7 of the above (1878) Act is retrospective 
to the extent of giving a fixed legislative construction to the 
term " separately assigned or charged " as regards all deeds, 
whether executed since or before the commencement of that 
Act, but is not so for the purpose of extending to deeds exe- 
cuted before the commencement of the Act the wider meaning 
given to the term " chattels " by sects. 4 and 5. 

An assignment of personal chattels within the application of Assignment 
the Bills of Sale Acts, together with fixtures not within their S£i£||? m 
application, to secure one sum of money, may be valid as to the although void 

£LS to cll'lttt'ls 

fixtures, notwithstanding that it is void as to the chattels. In 
re BurdeH, Ex parte Byrne, 07 L. J., Q. B. 263. 

By the Bills of Sale Act (1878) Amendment Act, 1882 (45 & Bills of sale 
46 Vict. c. 43), s. 6, "Nothing: contained in the fore^oine; sections ° f ' lxtu, "y* not 

>] ' & ^ . to be void in 

of this Act [viz., sects. 4 and 5 of the 1 882 Act mentioned below] certain cases, 
shall render a bill of sale void in respect of any of the following 
things ; that is to say, (inter alia) any fixtures separately assigned 
or charged, and any plant, or trade machinery, where such fix- 
tures, plant, or trade machinery are used in, attached to, or 



266 FIXTURES, AND EXECUTION THEREON. 

brought upon any land, farm, factory, workshop, shop, house, 
warehouse, or other place in substitution for any of the like fix- 
tures, plant, or trade machinery specifically described in the 
schedule to such bill of sale. By sects. 4 and 5 of the above Act 
every bill of sale shall be void except as against the grantor, in 
respect of any property not specifically described in the schedule 
attached thereto, and in respect of any property therein specifi- 
cally described of which the grantor was not the true owner at 
the time of the execution of the bill of sale. 

See also In re Yates, Batcheldor v. Yates, 38 Ch. D. 112 ; 57 
L. J., Ch. 697 ; and see as to assignments of leaseholds with 
machinery In re Lusty, Ex parte Lusty, 60 L. T. 160 ; 37 W. R. 
304 ; and in relation to a contract for the erection of trade 
machinery to be paid for by instalments, Cumberland Union 
Banking Co. v. Maryport Hematite Iron and Steel Co., [1892] 
1 Ch. 415 ; 61 L. J. Ch. 227 ; 66 L. T. 108 ; 40 W. R. 280. 
See also under title " Bills of Sale," post, p. 291. 



Fixtures between Heir and Executor, Tenant for Life and 
Remainderman, and Tenant in Tail and Reversioner. 

As between In the case of Fisher v. Dixon (12 C. & F. 312), the absolute 

executor fix- owner °f land, for the purpose of better using that land, had 
tures pass to erected upon and affixed to the freehold certain machinery, and 
it was held, that in the absence of any disposition by him of 
this machinery, it would go to the heir as part of the real 
estate ; that if the corpus of such machinery belonged to the 
heir, all that belonged to that machinery, although more or less 
capable of being detached from it, and more or less capable of 
being used in such detached state, must also be considered as 
belonging to the heir ; and that no distinction arose in the 
application of this rule, from the circumstance that the land did 
not descend to, but was purchased by, the owner. Lord Cot- 
tenham, in the course of his judgment, said: " Then the case 
being simply this, the absolute owner of the land, for the pur- 
pose of better using that land, having erected upon and affixed 
to the freehold, and used, for the purpose of the beneficial 
enjoyment of the real property, certain machinery, the question 
is, is there any authority for saying that, under these circum- 
stances, the personal representative has a right to step in and 



FIXTUEES BETWEEN HEIR AND EXECUTOR, ETC. 267 

lay bare tho land, and to take away all the machinery necessary 
for the enjoyment of the land ? Let us consider for a moment, 
if that is the principle, to what extent is it to go ? It is put by 
Lord Cockburn (and a very strong illustration it is), if the 
owner of the land should dig a well, and erect machinery for 
the purpose of using that well, is it competent to the personal 
representative to come and take away that machinery, and leave 
the well useless? He thinks it is not. Where is the distinction 
between the two cases ? Such machinery is capable of being 
taken away with very little, if any, damage to the land. 
Although, therefore, machinery is, in its nature, generally 
personal property, yet, with regard to machinery, or a manu- 
factory erected upon the freehold for the enjoyment of the free- 
hold, nobody can suppose that that can be the rule of law ; and 
so with respect to other erections upon land. It is not necessary 
to go beyond the present case, wdiich is a case of machinery 
erected for the better enjoyment of the land itself. The principle 
probably would go a great deal further, but it is more advisable 
to confine the observations I have to make to the particular 
circumstances of this case. There is no case whatever which 
has been cited in which that doctrine has been recognized, 
except the one which has been referred to {The Cider Mill Case), 
as to which we really know nothing, except that at the "Wor- 
cester assizes, a good many years ago, a cider mill was held to 
belong to the personal estate. Why it was so held, under what 
circumstances, and whether it was a cider mill fixed to the free- 
hold or not, we do not know. We know nothing except that 
this machine, called a cider mill, was decided to go to the per- 
sonal representative. It is impossible to extract a rule of law 
from a case of which we know so little as that. And, with that 
exception, there is a uniform course of decisions, wherever the 
matter has been discussed, in favour of the right of the heir to 
machinery erected under the circumstances in the present case ; 
and if the corpus of the machinery is to be held to belong to the 
heir, it is hardly necessary to say that we must hold that all 
belongs to that machinery, although more or less capable of 
being used in a detached state from it ; still, if it belongs to the 
machinery, and belongs to the corpus, the article, whatever it 
may be, must necessarily follow the same principle, and remain 
attached to the freehold." Per Lord Brougham: "If a cider 
mill be fixed to the soil, though it is a manufactory, it is per- 
fectly immaterial whether it is for the purpose of a manufac- 



268 



FIXTURES, AND EXECUTION THEREON. 



Same rule 
applies to 
tenants for 
life or in tail 
and remain- 
derman or 
reversioner, 

except that 
life tenant 
may remove 
trade fixtures 
and fixtures 
for mixed 
purpose. 



tor j, or a granary, or a barn or anything else. It is a fixture 
on the soil, and it becomes part of the soil. But although it is 
a manufactory, nobody says it belongs to the executor. It 
would go unquestionably to the heir." 

Wood, Y.-C, in the case of Mather v. Fraser, 2 K. & J. 536 ; 
25 L. J. Ch. 361, said, "With respect to fixtures the old rules 
of law were very strict : Whatever had been once fixed to the 
freehold by screws or soldered, passed as between the heir and 
the executor with that to which it was so attached ; the reason 
being that the owner by having so attached the article to the 
soil is considered to have expressed his intention that it should 
no longer continue a moveable chattel. ... In Winn v. 
Ingilby [5 B. & Aid. G25], the question was whether the sheriff 
could under a fi. fa. seize fixtures where the house in which they 
were situated was the freehold of the person against whom the 
execution issued. Now it struck me as a very common practice 
for the sheriff under a fi. fa. to seize locks, bolts, bars, and other 
ordinary house fixtures, and that was so in Place v. Fagg [4 M. 
& E. 277.] In both these cases it was held that the sheriff 
could not take fixtures in a house whereof the freehold was in 
the debtor, the principle being that where the owner of the 
freehold fixes articles to the freehold they belong to the free- 
hold, the case not being one as between landlord and tenant, but 
between the heir and executor." From these cases it is evident 
that if at any time a relaxation of the strict rule " quicquid solo 
plantatur, solo cedit," as between heir and executor, was ever 
contemplated, at the present time it is applied in full force in 
favour of the inheritance. 

The above cases that have arisen between the heir and 
executor apply as well to the cases of a life tenant or tenant in 
tail and remainderman or reversioner, with the following im- 
portant modification, viz., from the few cases that have arisen 
between tenants for life or their representatives and remainder- 
men, it appears that the life tenant or his representative is 
entitled to sever and remove trade fixtures and fixtures for a 
mixed purpose (i.e., when trade and the profits of land are 
combined). Lawton v. Lawton, 3 Atk. 13 ; Lord Dudley v. Lord 
Warde, Amb. 113; Lain v. Brand, 1 App. Ca. at p. 776. In 
Ward v. Countess of Dudley, 57 L. T. 20, a tenant for life of 
real estate, who was entitled to hold and enjoy the working 
stock and plant of certain iron mines and collieries situate on 
the estate, and carry on such iron mines and collieries, erected 



FIXTURES BETWEEN HEIR AND EXECUTOR, ETC. 269 

on the estate, machinery, &c, blast furnaces, and a railway of 
considerable length connecting the mines and collieries. On 
his death the question arose whether, in an account between his 
executors and the remainderman, the former should be credited 
with the value of the machinery, &c, or whether the same 
passed to the remainderman as things annexed to the soil. It 
was held, that the machinery annexed to the soil for the purpose 
of rendering the minerals merchantable, if such machinery was 
capable of being removed therefrom by disturbing the soil 
without destroying the land, was machinery which could not 
be said to be so attached to the land as to become part of it and 
belong to the owner of the land, but was to be deemed to be 
trade fixtures which passed to the executor as personalty on the 
authority of Wake v. Hall, 8 App. Ca. 195 ; 48 L. T. 834. 

Whether a tenant for life or his representative is debarred Removal of 
from removing ornamental or domestic fixtures seems to be domestlc^x- 1 " 
open to some doubt. D'Eyncourt v. Gregory, L. R. 3 Eq. 382. tures by life 

tenant, 

doubtful. 



270 



CHAPTER XXII. 



EXECUTION IN EELATION TO MAERIED WOMEN. 

Property at Common Law _____ 
Property under Married Women's Property Acts 
Settlements -------- 



PAGE 

- 270 

- 276 

- 284 



Protection of 
property of 
wife by- 
trustees. 



Property at Common Law. 

Apart from the Married "Women's Property Acts, the following 
may be taken as a summary of the law of Husband and Wife 
in relation to Execution : " By the common law the wife can 
have no property during the coverture, but all her estate is 
vested in the husband. But Courts of Equity have for ages 
past thought the rules of the common law too hard, and have 
thought it right to protect the property of the wife from the 
extravagance of the husband, in cases clear of fraud. This is 
done by the intervention of trustees ; and thus far the wife is, 
to all intents and purposes, a single woman ; and wherever that 
trust can be supported in equity, this Court will consider the 
trustee entitled at law." Per Lord Mansfield, in Haselinton v. 
Gill, 3 T. R. 620. Equity, moreover, protects property to 
which a married woman is entitled for her separate use, even 
without the intervention of trustees. As to what words of dis- 
position are sufficient to secure property to a married woman as 
her separate estate, see 8th ed. Lewin on Trusts, pp. 755 et seq. 
A trust to pay income to a woman for her separate use exists 
only during coverture, but in the case of a widow who re- 
marries, it comes into force again during the second or any 
succeeding coverture, unless the trust is expressly limited to one 
specific marriage. Tullett v. Armstrong, 1 Beav. 1 ; Moore v. 
Morris, 3 Jur. N. S. 552. In the words of Kay, L. J., " A 
trust for the separate use of a woman is completely inoperative 
while she is discovert, but it becomes effective the moment she 
marries, and continues so during any coverture or any number 



PROPERTY AT COMMON LAW. 271 

of successive covertures." Petton Brothers v. Harrison, [1891] 
2 Q. B. at p. 426. 

A married woman's earnings in any trade or business which Married 
her husband may permit her to carry on, although without any earnings i a 
express agreement in that behalf, are her separate property. trade ner 
So, also, by the custom of the city of London, the earnings of a property, 
married woman, solely trading there on her own account without 
her husband's intermeddling, are her separate estate. Again, Separate pro- 
the property of a married woman who has obtained an order of J^der ofpro- 
protection under 20 & 21 Vict. c. 85, s. 21, or an order of tectionor 
judicial separation under 21 & 22 Yict. c. 108, s. 8, or a magis- separation; 
trate's separation order under 41 Yict. c. 19, is her separate 
estate. In this connection, see Hill v. Cooper, [1893] 2 Q. B. 
85 ; 62 L. J. Q. B. 423. The Court also protects the earnings or where 
of a married woman whose husband has deserted her, or is con- a^,^, a9 
victed of felony. 

Though the property of a married woman, not settled to her "Wife's equity 
separate use, vested in the husband under the common law, yet, ^en^ 
if the husband brought a suit in equity to enforce his claims, 
the practice of the Court was to refuse him assistance except 
upon the terms that he made a suitable settlement upon his 
wife and her children ; this doctrine is called the wife's equity 
to a settlement. Equity, moreover, allowed a married woman 
to deal with her separate estate by assignment or charge, or 
otherwise as she thought fit, unless the instrument under which 
she took the property expressly forbad her to assign it. This Clause in 
was and is done by a proviso known as a clause in restraint of re ^ raint of 
anticipation, which is still effective in preventing her dealing 
with the capital or future income of her separate estate. The 
effect of a clause in restraint of anticipation is expressly pre- 
served by the Married Women's Property Acts, but the Court 
can in certain cases, and with her consent, bind her property 
subject to such a restraint (see the Conveyancing Act, 1881 ; 
In re Little, 40 Ch. D. 418 ; In re Milner's Settlement, [1891] 3 
Ch. 547); and under the Married "Women's Property Act, Costs may be 
1893 (6H & 57 Vict. c. 63), s. 2, she may be ordered to pay j2?SStSf b0 
costs out of such a fund. See post, p. 281. A restraint on P">P 
anticipation is of no avail unless the property is given to the restraint, 
separate use of a woman ; a gift to separate use will not be 
implied from the mere existence of a restraint on anticipation. 
Stogdon v. Lee, [1891] 1 Q. B. 661. 

As to the husband's interest in his wife's property, he is Husband 



272 



EXECUTION IN RELATION TO MARRIED WOMEN. 



entitled to 
income of 
"wife's free- 
hold and 
copyhold pro- 
perty during' 
coverture ; 



and of free- 
hold property 
during life, 
if he survive, 
&c. ; 



hut there 
must be 
special custom 
in case of 
copyhold 
property. 

Leasehold 
property 
belongs to 
husband 
during 
coverture ; 



and abso- 



entitled during the coverture to the income of all freehold and 
copyhold property of which the wife is or may be seized at and 
subsequent to the marriage. But under the provisions of 3 & 4 
"Will. 4, c. 74, a married woman can with her husband's con- 
currence and by duly acknowledged deed dispose of her lands 
and money subject to be invested in the purchase of lands and 
any estate therein, and also release and extinguish powers as a 
feme sole. Such Act is not, however, to extend to copyhold lands 
" of or to which a married woman, or she and her husband in 
her right, may be seized or entitled for an estate at law in any 
case in which any of the objects to be effected by this clause 
could before the passing of this Act have been effected by her 
in concurrence with her husband by surrender into the hands of 
the lord of the manor of which the lands may be parcel" (sect. 77) ; 
whilst a married woman must be separately examined on the 
surrender of an equitable estate in copyholds as if such estate 
were legal (sect. 90). Moreover, a married woman can dispose 
of her land independently of her husband, and by unacknow- 
ledged deed, in exercise of a power of appointment. The 
husband is also entitled to a life interest in such freehold pro- 
perty of his wife (except as to gavelkind lands) as she was solely 
seized in actual possession for an estate of inheritance during the 
marriage in the event of his surviving her and of their having 
had issue born alive capable of inheriting the property, he being 
said to be tenant by the curtesy in respect of this interest. 
" And it is now settled that where a married woman has an 
equitable estate of inheritance to her separate use and does not 
dispose of it by deed or will, her husband is entitled to curtesy." 
Per Jessel, M. E., in Cooper v. Macdonald, 7 Ch. D. 288. The 
Married Women's Property Acts do not affect tenancy by the 
curtesy. See Hope v. Hope, [1892] 2 Ch. 336. But it seems a 
special custom is necessary to entitle a husband to be tenant by 
the curtesy of his wife's copyhold property. 

A wife's leasehold property belongs to and can be absolutely 
disposed of during the coverture by the husband, subject, in the 
case of reversionary terms, to such falling in during the cover- 
ture, and, in the case of her interest being only equitable, to her 
concurring in and acknowledging the deed of disposition for the 
purpose of barring her equity to a settlement. He cannot, 
however, dispose by will of her leasehold property, and it accrues 
to the wife in the event of the husband predeceasing her without 
his having so disposed thereof during his lifetime. If, on the 



PROPERTY AT COMMON LAW. 



273 



other hand, the husband survive the wife, her leasehold property Lately, if ho 

belongs to him absolutely. It is, moreover, liable for his debts 

and subject to forfeiture to the Crown on his outlawry. 

At common law a married woman's personal chattels belong Personal 

absolutely to the husband, and can be disposed of by him as his belong abso- 

absolute property, whilst they are also subject to his debts. To lately to 
i • ii, -o , -, i. p l- husband; 

this general rule the wife s paraphernalia forms an exception. ex t a _ 

By "paraphernalia" is meant such apparel and ornaments as phemalia. 
are suitable to her rank and degree. The husband may dispose 
of his wife's paraphernalia during his life, but not by will ; 
it is also subject to his debts where there is a deficiency of 
assets. Black. Com. ; Campion v. Cotton, 17 Yes. 263. Old 
family jewels are not included in the term. Jervoisev. Jervoise, 
17 Beav. 570. See also Laing v. Walker, 61 L. T. 527. And 
see as to paraphernalia and wedding presents, Williams v. Merrier, 
9 Q. B. D. 337; 10 App. Cas. 1 ; and In re Jamieson, Ex parte 
Pannell, 60 L. T. 159 ; 37 W. K. 464. 

As to the wife's choses in action, the husband is only entitled Choses in 
thereto if he has reduced them into possession during the cover- to nus band 2 
ture, so that the wife is entitled to such choses in action in the ]ie has re- 
event of no such reduction into possession and of her surviving during 
the husband. " The rule of law is that a married woman can coverture - 
make no contract, but that choses in action may be given to her 
either before or after the marriage, and that if there be a chose 
in action given to the wife even after marriage, then the husband 
may sue for that either in his own name or that of his wife, but 
if he does not do anything to reduce the chose in action into 
possession, if the wife survives, it becomes her property." Per 
Lord Justice Hellish in Lloyd v. Pughe, L. R. 8 Ch. 88 ; 28 
L. T. 250. If, on the other hand, the husband survive the wife, If he survive, 
he is entitled to her choses in action not so reduced in possession ac ti n not 
(/ait administrator to her effects, her administrator being, how- reduced be- 

... pi long to hun. 

ever, entitled to such choses in action, in the event of the 
husband's death without his having administered. 

As to the wife's reversionary choses in action, a married Winn wife 
woman may, with her husband's concurrence and by duly reversionary 
acknowledged deed, dispose of all reversionary interests in per- dl0 . se8 lu 
sonalty to which she or her husband in her right is entitled 
under any instrument (other than her marriage settlement) 
made after the 31st December, 1857, and which she is not 
restrained from alienating. 20 & 21 Yict. c. ">7. 

M . T 



274 EXECUTION IN RELATION TO MARRIED WOMEN. 

Husband's The right of the husband to the reversionary property of his 

reversionary w ^ e depends upon whether it falls into possession during or 
property of after coverture. See this subject discussed in Lush on Law of 
Husband and Wife, p. 50. The husband has, of course, no 
interest in property held by the wife in autre droit. 
Widow's As to a wife's interest in her husband's property, a widow 

-when married whose marriage took place on or before the 1st of January, 1834, 
^ efor ® -?^y er is entitled to dower [i. e., a life interest in a third] out of any 
estate of inheritance of which the husband was solely seised and 
of which any issue of the wife might have been heir ; and this 
right having once attached to lands adhered to them notwith- 
standing alienation by the husband, and was independent of his 
debts. It extended to incorporeal hereditaments but not to 
equitable estates. 2 Black. Com. ; Co. Litt. 31 ; 1 Stephen's 
Com. A widow's dower in gavelkind lands consists of a moiety 
but continues only during widowhood and chastity. Co. Litt. 
when married 31 a. As to women married since the 1st January, 1834, by 
Act 1833. the Dower Act, 1833 (3 & 4 Will. 4, c. 105), widows are to be 
entitled to dower out of equitable estates (sect. 2) ; seisin is not 
necessary to give title to dower, when a husband shall have been 
entitled to a right of entry or action in any land and his widow 
would be entitled to dower thereout if he had recovered posses- 
sion thereof, provided such dower be sued for and obtained within 
the period during which such right of entry or action might be 
enforced (sect. 3) ; but no widow shall be entitled to dower out 
of any land absolutely disposed of by her husband in his lifetime 
or by his will (sect. 4) ; and all partial estates and interests, and 
all charges created by any disposition or will of a husband, and 
all debts, incumbrances, contracts and engagements, to which 
his land shall be subject or liable, shall be effectual as against 
his widow's right to dower (sect. 5) ; whilst dower may be barred 
by a declaration to that effect in a deed (sect. 6), or in the hus- 
band's will (sect. 7), and in the absence of a contrary intention 
in his will, by a husband's devise to his widow of any real estate 
wherein she would otherwise be entitled to dower (sect. 9). In 
the absence, however, of a like contrary intention his bequest of 
personal estate to her shall not bar her dower (sect. 10). More- 
over, a widow's right to dower shall be subject to any restrictions 
contained in her husband's will. (Sect. 8.) But an agreement 
Right of not to bar dower may be enforced. (Sect. 11.) A wife has also 

in copyhold an interest, termed her freebench, in her husband's copyhold 
lands. lands, where, as is usually the case, a special custom exists in 



PROPERTY AT COMMON LAW. 275 

that behalf. Freebench usually consists of a life interest in a 
divided third part, or sometimes in the whole of his copyhold 
lands. Freebench is, moreover, unaffected by the husband's 
debts, but it does not usually attach until his death and may be 
therefore barred by his devise of the lands. The Dower Act 
does not extend to copyhold property or freebench. 

For particulars of the wife's interest in her husband's Wife's in- 
personal property on intestacy, see the Statutes of Distri- personal 

bution, 22 & 23 Car. 2, c. 10 ; 29 Car. 2, c. 3, s. 24 ; and 1 Jac. 2, property, if 

husband dies 

c. 17, s. 7, as qualified by the Intestates Estates Act, 1800 (53 intestate. 

& 54 Vict, c. 29). 

As to husband and wife's disposition of their property from Disposition of 
one to the other during marriage, and as to property in the ^ U gbandand 
mixed possession of both parties, see Lush's Law of Husband wife to one 
and Wife, pp. 207 to 212, and subsequent applicable decisions. \ n g marriage. 

In the case of persons married prior to the Married Women's Husband 
Property Act, 1870, the husband was liable for his wife's ante- ^eWte- 
nuptial debts absolutely, whilst for her debts incurred during nuptial 

,i tit i-n i t l when married 

coverture he was liable on a presumption ot agency at least so before is?o ; 
far as regards necessaries and household matters where the and during 
husband and wife lived together ; but this presumption may be necessaries- 
rebutted by evidence that the wife was not authorized to pledge 
her husband's credit. See Jolly v. Bees, 15 C. B. N. S. 628 ; 33 
L. J. C. P. 177; Debenham v. Mellon, 6 App. Ca. 24; 50 L. J. 
Q. 13. 155 ; 43 L. T. 673 ; and the latest case on the subject, 
Jenhinson v. Bullock, 8 T. L. P. 61. In the event of separation, and during 
a case of necessity may arise which would make the husband ^^ \'. n J,^ 
prima facie liable, as where he deserts his wife, or has by his 
conduct compelled her to live apart from him without properly 
providing for her. See the judgment of Selborne, L. C, in 
Debenham v. Mellon, 6 App. Ca. 31. Where the wife has com- 
mitted adultery, without the connivance of her husband and he 
has not condoned it, he is not liable for her support. Culley v. 
Charman, 7 Q. B. D. 8!) ; Wilson v. Glossop, 20 Q. B. D. 354. 
But "ever since the doctrine of separate use has been established, But since 
a married woman has been considered in respect of her separate estaMshed 6 
estate as a feme sole, and capable of making herself liable upon wit ' r liable in 
all contracts entered into by her with reference to it." Per 
Cotton, L. J., in Butler v. Butler, 16 Q. B. D. 379. If the 
creditor, in fact, gives credit to the wife, the husband cannot be 
made liable and the contract will bind the separate estate under 

t2 



276 



EXECUTION IN RELATION TO MARRIED WOMEN. 



Husband 
cannot re- 
cover ante- 
nuptial loans ; 
but may re- 
cover post- 
nuptial. 



the provisions of the Married Women's Property Act, 1893, s. 1, 
extending the corresponding section of the Act of 1882. See 
post, p. 280. 

As to advances made by a husband to his wife, he cannot 
maintain an action against her to recover out of her separate 
estate ante-nuptial loans and advances. But he can recover 
from her money which after their marriage he has advanced to 
her on a contract by her, either express or implied, to repay it 
out of her separate estate, and such right has not been affected 
by the Married Women's Property Act, 1882. Butler v. Butler, 
14 Q. B. D. 831 ; 16 Q. B. D. 374. 



Modification 

of common 

law by 

Married 

Women's 

Property 

Acts. 



Property under Married Women's Property Acts. 

The common law is now modified by the Married Women's 
Property Acts of 1870, 1874, 1882, and 1893 (33 & 34 Vict. 
c. 93 ; 37 & 38 Vict. c. 50 ; 45 & 46 Vict. c. 75 ; and 56 & 57 
Vict. c. 63). The two earlier Acts have been repealed by the 
Act of 1882, but owing to the saving clause they are still of 
some practical importance. By the operation of these Acts 
there are now four classes of married women, viz. : — 

(1) Those women married prior to the passing of the Married 

Women's Property Act, 1870 (9th August, 1870). 

(2) Those married after the passing of the Married Women's 

Property Act, 1870, and before the passing of the 
Married Women's Property Act, 1874 (30th July, 
1874). 

(3) Those married after the passing of the Married Women's 

Property Act, 1874, and before the passing of the 
Married Women's Property Act, 1882 (1st January, 
1883). 

(4) Those married since the passing of the Married Women's 

Property Act, 1882. 
The subject will be dealt with generally under the heading of 
the first class, showing in what respects the common law has 
been affected by the Married Women's Property Acts and sub- 
sequently the distinctions between the different classes will be 
pointed out. 



PROPERTY UNDER MARRIED WOMEN'S PROPERTY ACTS. 277 

(1) Women married prior to the passing of the Married Women's 
Property Act, 1870 (9th August, 1870). 

By the Married Women's Property Acts the common law 
has been amended in the following respects: — 

(a) Wages and earnings of a married woman acquired by her (a) Earnings 
after the 9th August, 1870, in any employment, occupation, or mentTther'eof 
trade, which she carried on separately from her husband, and to be separate 
all investments of such wages, earnings, or money so acquired 

are her separate property. Married Women's Property Act, 
1870, s. 1, re-enacted by the Married Women's Property Act, 
1882, s. 5. The law on this point, apart from the Acts, will be 
found in the judgment of Malins, V.-C, in AaJticort/t v. Outram, 
5 Ch. D. 923 ; 4G L. J. Ch. 687. As to what is sufficient to 
constitute a separate business, see Ashworth v. Outram, supra ; 
Love/I v. Newton, 4C.P.D.7; 39 L. T. 609 ; In re Beamier, 
James v. Dearmer, 53 L. T. 905 ; W. N. (1885) 212 ; Laporte 
v. Oostick, 31 L. T. 434; 23 W. E. 131. It is, however, a 
question to be determined on the evidence. 

(b) Deposits in a savings bank, annuities granted by the com- (b) Deposits 
missioners for the reduction of the National Debt (Married banks and 
Women's Property Act, 1870, s. 2), and, under certain condi- property in 
tions, money in the funds, not being less than 20/. (sect. 3), deemed 
fully paid-up shares, debentures, debenture stock, or stock in or property 

of an incorporated or joint stock company (sect. 4), shares, 
benefits, debentures, &o. in a friendly, benefit building, or loan 
society (sect. 5) are her separate property. These provisions Extension by 
have been amended and extended by sect. 6 of the Married 
Women's Property Act, 1882, which enacts that all deposits in 
savings banks, or any other bank, all annuities granted by the 
above-named commissioners or by any other persons, all sums 
forming part of the public stocks or funds or of any other stock 
or funds transferable in the books of the Bank of England, or 
of any other bank, which, on the 1st of January, 1883, were 
standing in the sole name of a married woman, and all shares, 
stock, debentures, debenture stock, or other interests of or in any 
corporation, company, or public body, municipal, commercial, or 
otherwise, or of or in any industrial, provident, friendly, benefit, 
building, or loan society which on the last named day stood in 
her name, are to be deemed, until the contrary be shown, to be 
her separate property; and the fact that any such deposit, 
annuity, sum forming part of the public stocks or funds, or of 



278 



EXECUTION IN RELATION TO MARRIED WOMEN. 



(c) Real and 
personal pro- 
perty, if title 
accrued after 
18S2 Act, to 
be separate 
property ; 

but not sepa- 
rate property 
if title ac- 
quired before 

Act. 



(d) Married 
woman to be 
capable of 
holding and 
disposing of 
property as a 
ft me sole. 



Sect. 1, 
Bub-s. 1, held 
not to apply 
to property 
ac [ui red 
before 1S82 
Act. 



any other stocks or funds transferable in the books of the Bank 
of England, or of any other bank, share, stock, debenture, de- 
benture stock, or other interest as aforesaid, is standing in the 
sole name of a married woman shall be sufficient prima facie 
evidence that she is beneficially entitled thereto for her separate 
use. Sect. 7 extends this to such stock, &c. as is after the com- 
mencement of the Act transferred, &c. into her name, and sect. 8 
to stock standing in her name jointly with that of some other 
person, not being her husband. 

(c) All real and personal property, her title to which, whether 
vested or contingent, and whether in possession, reversion, or 
remainder should accrue after the 1st of January, 1883, is her 
separate property. Married Women's Property Act, 1882, s. 5. 

In Reid v. Eeid, 31 Ch. D. 402 ; 54 L. T. 100 ; 55 L. J. Ch. 
294, it was held that if a woman, married before the commence- 
ment of the Act, had, before that date, acquired a title, whether 
vested or contingent, and whether in reversion or remainder, to 
any property, such property is not made her separate estate 
though it falls into possession after the Act. See also In re 
Adame's Trusts, 54 L. J. Ch. 878 ; 53 L. T. 198. But in In re 
Parsons, Stockley v. Parsons, 45 Ch. D. 51 ; 59 L. J. Ch. 666 ; 
62 L. T. 929, it was held that a mere spes succcssionis is not a 
title in English law, and that a woman who had a prospect of 
succeeding as one of a class of possible next of kin, had not a 
contingent title within the above section. 

(d) By sect. 1, sub-sect. 1 of the Married Women's Property 
Act, 1882, a married woman is, in accordance with the provisions 
of that Act, capable of acquiring, holding, and disposing by will 
or otherwise, of any real or personal property as her separate 
property, in the same manner as if she were a feme sole, without 
the intervention of any trustee. The generality of this section 
is cut down by the words " in accordance with the provisions of 
this Act " and it has been held in In re Cuno, Mansfield v. 
Mansfield, 43 Ch. D. 12; 62 L. T. 15, that this section must, 
in the case of a woman married before the Act, be read in con- 
nection with sect. 5 (ante), and that it does not give such a 
woman power to dispose of property not falling within the scope 
of this latter section. In In re Harris' Settled Estates, 28 Ch. 
D. 171, it was held that in the case of such women the section 
applied to property acquired after the commencement of the Act 
only, and therefore in proceedings under the Settled Estates Act, 
1877, relating to property acquired previously to that date she 



PROPERTY UNDER MAKRIKD WOMEN'S PROPERTY ACTS. 279 

must still be separately examined. In the ease of women married 
since the Act, and in eases where the title to the property accrued 
after the Act though the woman married before the Act, the 
acknowledgment by the wife or concurrence of the husband 
required by sect. 40 of the Fines and Recoveries Act does not 
appear to be necessary, lie Drummond and Dade's Contract, 
[1891] 1 Ch. 524; 60 L. J. Ch. 258; 64 L. T. 246. 

Restraints on anticipation are still preserved, and settlements Restraints on 
are protected, as to which, see post, p. 280. and settle- 11 

The power given to a married woman to dispose by will of m ents pre- 

served. 

property extends only to property of which she is seised or p ower ' to 
possessed while she is under coverture ; consequently her will, dispose by- 
made during coverture, is not, unless she re-execute it after she extends to 

is discovert, effectual to dispose of property which she acquires property in 

•*■ x *- , ± possession 

after the coverture has ceased. In re Price, Stafford v. Stafford, during 

28 Ch. D. 709 ; 54 L. J. Ch. 509 ; 52 L. T. 430 ; In re Young, co ™ rture - 

Tnje v. SaUkan, 28 Ch. D. 705 ; 52 L. T. 754. A will made 

before the Act by a woman having at the time capacity to make 

a will is effectual to pass separate property subsequently acquired 

under the provisions of the Act without re-execution. In re 

Bourn, James v. James, [1892] 2 Ch. 291 ; 61 L. J. Ch. 432. 

It appears that this general enactment does not repeal a section 

in a prior Act expressly disabling a married woman from doing 

certain acts, as e.g., from giving by will land and chattels 

towards the erection of churches. In re Smith's Estate, 

Clements v. Ward, 35 Ch. D. 589; 56 L. J. Ch. 726; 56 L. T. 

850. As to the proper form of probate, see In bonis Price, 12 

P. D. 137 ; 50 L. J. P. 72 ; 57 L. T. 497. 

(e) By sect. 1, sub-sect. 2, of the Harried Women's Property (e) Married 

Act, 1882, "A married woman shall be capable of entering into ^p™^ *f 

and rendering herself liable in respect of, and to the extent of, contracting as 
i , . ii-iP' ii- a f eme s °i c > 

ner separate property on any contract, and ot suing and being 

sued, either in contract or in tort, or otherwise, in all respects as 

if she were a feme sole, and her husband need not be joined 

with her as plaintiff or defendant, or be made a party to any 

action or other legal proceeding brought by or taken against 

her ; and any damages or costs recovered by her in any such 

action or proceeding shall be her separate property, and any 

damages or costs recovered against her in any such action or 

proceeding shall be payable out of her separate property and not 

otherwise." This sub-section does not render a married woman 

personally liable. Draycott v. Harrison, 17 Q. B. I). 147; Scott 



280 



EXECUTION IN RELATION TO MARRIED WOMEN. 



but cannot 
contract 
except in 
respect of 
separate 
property. 



Effect of 1893 
Act (amend- 
ing 1882 Act) 
on contracts 
by married 



Judgment 
against 
married 
woman. 

No restriction 
on anticipa- 
tion in settle- 
ment made by 
married 
woman valid 
against ante- 
nuptial debts. 

Settlement, 
&c, by mar- 
ried woman 
not to have 
greater 
validity 
against 
creditors than 
by a man. 



v. Morley, 20 Q. B. D. 120 ; 57 L. J. Q. B. 43. She cannot 
contract, except in respect of her separate property, and it was 
held that under the Married Women's Property Act, 1882, 
a plaintiff's action would fail if he could not prove that she had 
separate property at the time when the contract was entered 
into. Palliser v. Gurney, 19 Q. B. D. 519; 56 L. J. Q. B. 
546; In re Shakespeare, Deakin v. Lakin, 30 Ch. D. 169; 55 
L. J. Ch. 44 ; 53 L. T. 145 ; Leak v. Driffield, 24 Q. B. D. 98 ; 
59 L. J. Q. B. 89 ; Sforjdon v. Lee, [1891] 1 Q. B. 661 ; 60 
L. J. Q. B. 669 ; Braunstein v. Lewis, 65 L. T. 449 ; Pelton 
Brother* v. Harrison, [1891] 2 Q. B. 422. But now sect. 1 of 
the Act of 1893 (repealing sect. 1, sub-sects. 2 and 4 of the Act 
of 1882) provides that every contract hereafter entered into by 
a married woman, otherwise than as agent, (a) shall be deemed 
to be a contract entered into by her with respect to and to bind 
her separate property whether she is or is not in fact possessed 
of or entitled to auy separate property at the time when she 
enters into such contract ; (b) shall bind all separate property 
which she may at th t time or thereafter be possessed of or 
entitled to ; and (c) shall also be enforceable by process of law 
against all property which she may thereafter while discovert 
be possessed of or entitled to ; Provided that nothing in this 
section contained shall render available to satisfy any liability 
or obligation arising out of such contract any separate property 
which at that time or thereafter she is restrained from antici- 
pating. 

For the form of judgment against a married woman under 
the Act of 1882, see Scott v. Morley, 20 Q. B. D. 120, at 
p. 132. 

Sect, 19 of the Married Women's Property Act, 1882, after 
providing for the protection of existing and future settlements 
and restrictions on anticipation, enacts that no restriction on 
anticipation, contained in any settlement or agreement for a 
settlement of a woman's own property to be made or entered 
into by herself, shall have any validity against debts contracted 
by her before marriage, and no settlement or agreement for a 
settlement shall have any greater force or validity against the 
creditors of such woman than a like settlement or agreement 
for a settlement made or entered into by a man would have 
against his creditors. This section, so far as it affects the validity 
of a settlement or an agreement for a settlement as against the 
creditors of a married woman, is not retrospective. Therefore 



PROPERTY UNDER MARRIED WOMEN'S PROPERTY ACTS. 281 

execution cannot issue against property settled before the com- 
mencement of the Act, to the separate use of a married woman 
without power of anticipation. Smith v. Whitlock, 55 L. J. Q. B. 
286 ; 34 TV. 11. 414. Where property is settled to the separate 
use of the wife, hut without any restraint on anticipation, this 
section does not protect it from the trustee in her bankruptcy. 
In re Armstrong, E.r parte Boyd, 21 Q. B. J). 264 ; 57 L. J. Q. B. 
553. See also on this section Beckett v. Tasker, 19 Q. B. D. 7, 
and Hemingway v. Braithwaite, 61 L. T. 224. Where a married 
woman who had separate property subject to a restraint on 
anticipation incurred a liability and was sued after the death of 
her husband, it was held that the removal of the restraint by the 
death of the husband did not make the property liable. Pe/ton 
Bros, v. Harrison, [1891] 2 Q. B. 422 ; 60 L. J. Q. B. 742 ; 65 
L. T. 514 ; 39 W. R. 689. 

The protection given by restraint on anticipation has been Costs may be 
removed in one instance by section 2 of the Act of 1893, which ^"^tot* 
provides that in any action or proceeding instituted by a married property, 

SUDlOCt to 

woman the Court may order payment of the costs of the opposite restraint on 

party out of property which is subject to a restraint on anticipa- anticipation. 
tion and may enforce such payment by the appointment of a 
receiver, and the sale of the property or otherwise. 

Section 13 of the Married Women's Property Act, 1882, pro- Married 

vides that the wife shall continue liable in respect and to the f or ante- 

extent of her separate estate for her ante-nuptial debts. In the nu ptial debts, 

case of marriages before the 9th August, 1870, the husband is ^^jj 50 

also liable for these debts. Section 14 of the Married Women's married 

Property Act, 1882, contains a provision that nothing in that Act Act. 
shall operate to increase or diminish the liability of any husband 
married before the Act in respect of such debts and liabilities. 

(f) The Married Women's Property Act, 1882, also contains (f) Other 

provisions relating to the remedies of married women for the iss^Ac?* 5 ° 

protection of their property (sect. 12), to the bankruptcy of relating to 

married women who carry on separate trades (sect. 1 (5)), to bankruptcy, 

loans by the wife to the husband (sect. 3), to the effect of execu- &0 " of mamed 

J ... women, 

tion of general powers (sect. 4), to investments in the joint names 

of married women and others (sect. 9), to fraudulent investments 
with the moneys of the husband (sect. 10), to policies of insur- 
ance (sect. 11), to criminal proceedings for acts done by the 
wife with respect to any property of the husband (sect. 16), to 
the summary determination of questions between the husband and 
wife as to property (sect. 17), to powers to act either as executrix 



282 



EXECUTION IN RELATION TO MARRIED WOMEN. 



or trustee (sect. 18), to the maintenance of pauper husband and 
children (sects. 20 and 21), and to the representation of the wife's 
estate after her death (sect. 23). These matters are, however, 
beyond the scope of this work, and the reader is referred to the 
Acts of 1870 and 1882, Lush on Husband and Wife, and 
Addison on the Law of Contracts, 9th ed. 



Additional 
separate 
property of 
woman 
married after 
1870 Act. 



(2) Women married on and after the 9th of August, 1870, and 
before the 30M of Jut//, 1874. 

A woman married between these dates has in addition to the 
property enumerated in the last class the following properties 
as separate estate, viz. : — (a) Any personal property coming to 
her as next-of-kin of an intestate. Married Women's Property 
Act, 1870, s. 7. (b) Any sum of money, not exceeding 200/., 
coming to her under a deed or will. lb. (c) Where any free- 
hold, copyhold, or customaryhold property descends upon any 
woman as heiress, the rents and profits belong to her for her 
separate use. Married Women's Property Act, 1870, s. 8. In 
each case such property shall become her separate property 
without prejudice to the trusts of any settlement. She cannot 
pass the fee-simple in such real estate by an unacknowledged 
deed. Johnson v. Johnson, 35 Ch. D. 315 ; 56 L. T. 163 ; 56 
L. J. Ch. 326. In those cases where such property as above 
mentioned comes to or descends upon the wife on or after the 
1st January, 1883, the Act of 1882, as we have already seen, 
applies. 

Husbands who have married between the 9th August, 1870, 
(inclusive) and the 30th July, 1874, are not liable for their 
wives' ante-nuptial debts. Married Women's Property Act, 
1870, s. 12. 

(3) Women married on and after the ?>0th of Jul//, 1874, and 

before the 1st of January, 1883. 

These women are in every respect, except one, subject to the 
Husband same laws as govern the second class. The one exception is 
wife's ante- ^ na ^ ^ ne husband is liable for his wife's ante-nuptial debts to 
nuptial debts the amount of any assets he may have received from her. The 
assets received assets in respect of and to the extent of which the husband is 
from her. liable are given in detail in sect. 5 of the Act of 1874, but are 
not of sufficient practical importance to be set out here. 



Husbands 
married 
between 1870 
and 1874 Acts 
not liable for 
wife's ante- 
nuptial debts. 



PROPERTY UNDER MARRIED WOMEN'S PROPERTY ACTS. 283 

(4) Women married on or offer the 1st of January, 1883. 

Sect. 2 of the Married "Women's Property Act, 1882, enables Property of 
every woman who marries on or after the above-mentioned date wom ? n 

J married alter 

to have and to hold as her separate property and to dispose of 1882 Act to 
all real and personal property which shall belong to her at the a s afeme^sou! 
time of marriage, or shall be acquired by or devolve upon her 
after marriage, including any wages, earnings, money and pro- 
perty gained or acquired by her in any employment, trade, or 
occupation in which she is engaged, or which she carries on 
separately from her husband, or by the exercise of any literary, 
artistic, or scientific skill. This must be read in conjunction Protection of 

with sect. 19, which protects settlements and restraints on set t lem <; nt . s 

7 *- and restraints 

anticipation. But apart from settlements and agreements for onanticipa- 
settlements, the husband, who has married since the commence- " 

„. . . . Husband 

ment ot the Act, takes no interest m his wife s property takes no in- 
during her life ; but there is nothing which deprives him of an ^j^t* Hf"^ 
estate by the curtesy in his wife's undisposed-of real estate, but not de- 
Hope v. Hope, [1892] 2 Ch. 336 ; 61 L. J. Ch. 441 ; 6Q L. T. P rived of 
522; 40 W. R. 522. curtesy " 

By sect. 14 of the Married "Women's Property Act, 1882, a Husband 
husband is liable for his wife's ante-nuptial debts and liabilities ^fe'Vanfce- 
to the extent of all property which he acquires or becomes nuptial debts 
entitled to from or through his wife, after deducting therefrom propertTre - 
any payments made by him, and any sums for which judgment ceivedfrom 
may have been bona fide recovered against him in any proceed- 
ing at law, in respect of any such debts, contracts or wrongs for 
or in respect of which his wife was liable before her marriage ; 
but he shall not be liable for the same further or otherwise. 
Power is given to any Court in which a husband may be sued 
to direct an inquiry to ascertain the nature and amount of such 
property. Sect. 15 contains provisions for suing a husband and 
wife jointly in respect of such debts and liabilities. A judg- 
ment recovered against the wife is no bar to an action against 
the husband. Beck v. Pierce, 23 Q. B. D. 316 ; 58 L. J. Q. B. 
516; 61 L. T. 448. The Statute of Limitations runs in the 
husband's favour from the date of the debt, and not from the 
date of the marriage. lb. 



284 EXECUTION IN EELATION TO MAEEIED WOMEN. 



Settlements. 

It not being within the scope of this work to deal with mar- 
riage settlements, the reader is referred for information thereon 
to the standard works on the subject. As to avoidance of 
settlements in bankruptcy, see under title " Bankruptcy — 
Voluntary Dispositions of Property," post, p. 371. 



285 



Chapter XXIII. 



landlord's claim for rent. 



The landlord lias the right to distrain upon his tenant's goods Right of 
for rent due, that is, he may, without the assistance of any process ^^0 for 
of law, seize and sell the tenant's goods and so pay himself for rent due » 
rent due. This right is limited and regulated by the Agricul- 
tural Holdings Act, 1883, the Law of Distress Act Amendment 
Act, 1888, and numerous other Acts and decisions which will 
he found discussed at length in TVoodfall's Landlord and Tenant. 
It is, moreover, subject to one qualification, of great practical unless goods 
importance to sheriffs and their officers, which is, that a landlord of^tne law.° * 
cannot distrain upon goods in the custody of the law, and there- 
fore seizure by the sheriff under a writ of execution suspends 
this security for the payment of rent, so far as the goods so 
seized are concerned, for so long a time as the goods remain in 
the actual and complete possession of the sheriff. Blades v. 
Arundale, 1 M. & S. 711. 

But when this possession has ceased, the right to distrain again When pos- 
arises, as where, after the making of an interpleader order, the cc^t!". right 
sheriff, with the consent of the execution creditor and the to distrain 
claimant, temporarily withdrew from possession, it was held 
that the landlord was entitled to distrain on the goods, even 
though he knew of the interpleader proceedings, for the goods 
were no longer in the custody of the law. Cropper v. Warner, 
1 0. & E. 152; and see Cooper v. Asprey, 3 B. & S. 932; 32 
L. J. Q. B. 209. So also goods are distrainable which are left 
on the premises after a fraudulent bill of sale made under an 
execution. Smith v. Russell, 3 Taunt. 400 ; see Heed v. Thoyts, 
6 M. & W. 410 ; 8 D. P. C. 410. So also if the sheriff sell and 
the purchaser leaves the goods on the premises for an unreason- 
able time. Ex parte Pollen, Re Davis, 55 L. J. Q. B. 217 ; 54 
L. T. 304 ; 34 TV. R. 442 ; following the earlier cases, Blades 
v. Arundale, 1 M. & S. 711 ; Peacock v. Purvis, 2 Brod. & B. 
302; White v. Bin-stead, 13 C. B. 304; 22 L. J. C. P. 115. 



again arises. 



286 



landlord's claim for rent. 



In what cases 
no goods, &c. 
to be taken in 
execution, 



unless execu- 
tion creditor 
pays rent due 
not exceeding- 
one year's 
arrears. 



Sheriff, &c. 
empowered to 
pay rent so 
paid to execu- 
tion creditor. 



Sheriff liable 
if goods are 
removed 
before rent 
due secured. 



Nor does this exemption apply to fraudulent or irregular exe- 
cution. Blades v. Arundale, supra ; Smith v. Russell, supra ; 
St. Johns College v. Murcott, 7 T. E. 259. 

Landlords being thus liable to be deprived of their remedy by 
the action of other creditors, the statute 8 Anne, c. 14 (a) was 
passed for their protection, sect. 1 of which enacts " No goods or 
chattels whatsoever, 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 whatever, unless the party at 
whose suit the said execution is sued out, shall, before the removal 
of such goods from olf the said premises, by virtue of such exe- 
cution 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 such goods 
or chattels by virtue of such execution ; provided the said arrears 
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 land- 
lord 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." Under this statute, 
the sheriff is not bound to inquire whether rent is or is not owing 
to the landlord, but should the latter give him notice that it is 
due he will be liable in an action for damages should he permit 
the goods seized to be removed from the premises without first 
securing the payment of the rent due to an extent not exceeding 
one year's arrears. Andreas v. Dixon, 3 B. & A. 645. " Con- 
struing the Act as it has been hitherto construed, it means that 
the sheriff is not to remove the goods, unless the rent has been 
first paid by somebody ; if he does, he is liable to an action by 
the landlord." Per Parke, B., in Riseley v. Ryle, 11 M. & W. 
16, 20, cited by Lord Denman, C. J., in Cocker v. Musgrove, 15 
L. J. Q. B. 368. As to the sufficiency of the notice see Colijer 
v. Speer, 2 Brod. & B. 67. Seville, the mere knowledge of the 
sheriff that rent is due is sufficient ; at all events, the sheriff 
would not be wise in neglecting to make inquiry if he had such 
knowledge. But see Thomas v. Mirehouse, 19 Q. B. D. 563, 



{a.) 8 Anno, c. 18, Statutes of the Bealm. 



landlord's claim for rent. 287 

where the Court of Appeal appears to have thought notice neces- 
sary. Upon receiving such notice the sheriff should inquire as 
to the truth, and, if possible, inspect the lease. Augustien v. 
Chattis, 1 Ex. 279. He should also give the execution creditor Sheriff should 
notice that the rent is in arrear and that he must pay the amount locution 
to the landlord. A form for this notice is given in the 15th edit, creditor that 
Woodfall, App. D., No. 14. That form, which is reprinted by arrear. 

permission, is as follows : — Form of 

notice. 

Form of Notice by the Sheriff to the Execution Creditor that rent 

is owing. 

In the High Court of Justice, 
Division. 

Between A. B., Plaintiff 

and 
CD., - - - - - Defendant. 

Take notice, that the sum of £ is due and owing from the 

above-named defendant to his landlord I. Iv., of Esq. for [one 

year's or one half-year's rent or one quarter's] rent, due on the 
day of last, for and in respect of the [house or farm, land 

and] premises situate at , in the county of , now in the 

occupation of the said defendant, and upon which certain goods 
and chattels have been seized by the sheriff of under the writ 

of fieri facias issued in this action [and the said sheriff has had 
notice of such arrears of rent (b) ] : Now I do hereby, as the agent 
of the said sheriff and on his behalf, give you notice that unless 
the above-named plaintiff do forthwith pay the arrears of rent 
due to the said landlord, either to him or to his bailiff, pursuant 
to the statute in such case made and provided, the said sheriff will 
withdraw from possession of the said goods and chattels under the 
said writ. 



Dated this 


day of 


) 


18 . 






Yours, 


&c. 


) 






L. 


M. 


of 
Agent of the sheriff of 


To the 


above 


-named plaintiff, 


and to ) 


Mr. 


» 


his sohcitor or agent. j 



If the execution creditor does not comply with this notice by if execution 
paying the rent due (not exceeding one year's arrears), the safer credi,or d , oes 

• o i i •<* i not comply, 

course is for the sheriff to withdraw at once and make a return sheriff should 
of nulla bona unless he can find other goods of the debtor within wlthdTav 5 



(b) Omit this if inaccurate. Express notice to the sheriff appears to bo 
unnecessary ; it is sufficient if ho knows of the arrearsof rent. He should 
inspect the lease, and obtain legal proof of the arrears due. 



283 



landlord's claim for rent. 



but he may 
execute and, 
after paying 
rent, pay 
surplus to 
execution 
creditor. 



Statute ap- 
plies only to 
rent accrued 
due, 



and only to 

existing 

tenancies. 



Statute does 
not apply 
unless goods 
actually 
removed, 



his bailiwick but not on the landlord's premises. Lord Denman, 
C. J., delivering the judgment of the Court in Cocker v. Mus- 
grove, 9 Q. B. 235 ; 15 L. J. Q. B. 368, said : " The sheriff is 
not called upon by law to advance money to pay the rent ; it is 
plain that such advance must be made by the execution creditor ; 
and if he neglects to make it, after notice of the rent being due, 
at all events (and it is not necessary now to say whether notice 
be requisite) the sheriff cannot be called upon to sell the goods, 
let their value be what it will. Until the rent be paid, there 
are no goods out of which the sheriff is bound to levy, that is, 
which he is bound to sell." The sheriff may, however, if he 
prefers to do so, proceed with the execution, sell the goods, and 
out of the proceeds pay the landlord, paying the surplus after 
payment of rent in satisfaction of the execution ; by so doing 
he secures his poundage, fees, &c, but incurs considerable risk, 
as to which, see Woodfall, 15th ed., 528. 

The statute applies to rent accrued due, and not therefore to 
rent accruing thereafter and during the sheriff's possession. 
HosMis v. Knight, 1 M. & S. 245. Eent stipulated by a lease 
to be paid in advance has, however, accrued due. Harrison v. 
Barry, 7 Price, G90. And under 14 & 15 Yict. c. 25, s. 2, 
growing crops seized and sold by the sheriff are liable to the ac- 
cruing rent notwithstanding such seizure and sale for so long as 
they remain on the premises. The sheriff is not bound to allow 
the landlord a year's rent where, under the circumstances, it 
must be taken to have ceased at the time of the execution. 
Hodgson v. Gascoigne, 5 B. & A. 88. The statute does not 
apply to other than existing tenancies at a rent certain (Riseley 
v. Ryle, 10 M. & W. 101), and the sheriff is not liable for re- 
moving goods taken in execution without first paying to the 
landlord a year's rent, where the tenancy has determined before 
the seizure, though within the six months during which the 
right of distress is preserved by sects. 6 and 7 of the Act. Cox 
v. Leigh, L. E. 9 Q. B. 333; 43 L. J. Q. B. 123. Moreover, 
where there are two executions the landlord is not entitled to 
have a year's rent on each. Bod v. Saxby, 2 Stra. 1024. 

The statute does not apply unless the goods be actually re- 
moved from the premises. White v. Binstead, 22 L. J. C. P. 
115. The mere execution of a bill of sale by the sheriff to a 
purchaser does not amount to a removal (Smallman v. Pollard, 
1 D. & L. 90 1), but where he receives the proceeds of such a 
bill of sale he will be ordered to pay the rent out of them. 



landlord's claim for rent. 289 

West v. Hedges, Barnes, 211 ; Hinchett v. Kimpson, 2 Wils. 140. 
It has "been already stated that a sale by the sheriff, if the goods 
are left on the premises, does not deprive the landlord, of his 
remedy by distress. The statute does not apply to an execution nor to an 
by the landlord. Taylor v. Lanyofl, 13ing. 536. In Thur- ia, n ajjjrd- y 
good v. Richardson, 7 Bing. 428 ; 4 C. & P. 481, it was held to butd 
be applicable to a case of sub-tenancy, but see also Bennet's case, tenancy " 
2 Stra. 787, and words of the statute " the landlord of the said 
premises." 

The words " all goods or chattels whatsoever lying or being Goods of 
in or upon the premises " include the goods of third parties 0I i pr^jagg 
(Forster v. Coolson, 1 Q,. B. 419 ; see, however, the Lodgers' 
Protection Act, 34 & 35 Yict. c. 79), and also, semble, goods 
which are not liable to distress. See per Parke, B., in Riseley v. 
Ryle, 11 II. & \V. 10. 

The removal of the goods being the act of the sheriff, he and Sheriff liable 
not the execution creditor is liable in an action by the landlord. a nV~not° Va ' 
Riseley v. Ryle, 11 AT. & W. 16; Palgrave v. Windham, 1 Stra. execution 
21 "J. If, there being no distress by the landlord, the goods are 
sold by the sheriff under an execution after bankruptcy, he will 
not, if he has notice of the act of bankruptcy, be justified in pay- 
ing the landlord out of the proceeds (see Pobson on Bankruptcy, 
6th ed. 283), though, semble, he may still be liable to the land- 
lord. Buck v. Braddyll, M'Clel. 217 ; 13 Price, 455 ; Lee v. 
Lopes, 15 East, 230. This is one of the causes which render it 
unsafe for the sheriff to proceed after notice that rent is in 
arrear. 

Though the sheriff is entitled to poundage, he cannot deduct Sheriff cannot 
it from the rent paid to the landlord. Davies v. Edmonds, 12 31. ageW^" 
& \V. 31 ; Gore v. Go/ton, 1 Stra. 643. Nor can anything be rent ; 
deducted in respect of remissions usually granted to the tenant. nor remissions 

A . granted to 

Tmdal, C. J ., says : " The landlord is not bound to make an tenant, 
abatement to the tenant's creditors because he has chosen to 
make an abatement to the tenant." Williams v. Lewsey, 8 
Bing. 28. 

After notice that rent is due to the landlord, if the sheriff Remedy of 
does not pay over the rent due under this statute (not exceeding ^h^sLriff 
a year's arrears), but proceeds to levy execution and remove the r 
goods of the tenant, the landlord's remedy is by summary tog rent. " 
application to the Court or a judge at chambers that he may be 
paid what is due to him out of the money levied {Hinchett v. 
Kimpson, 2 "Wils. 140), or he may bring a special action on the 

M. U 



290 landlord's claim foe rent. 

case against the sheriff (Riseley v. JRi/le, 11 M. & W. 16) ; but 
the landlord cannot maintain an action for money had and 
received. Green v. Austin, 3 Camp. 260. In an action against 
the sheriff for removing goods taken in execution without paving 
the landlord a year's rent, the measure of damages is prima facie 
the amount of rent due, but the sheriff may reduce them to the 
real value of the goods, but not to the sum which they fetch at 
a forced sale. Thomas v. Mirchouse, 19 Q. B. D. 563 ; 56 L. J. 
Q. B. 653 ; 36 W. E. 104. 
Saving for Section 8 of 8 Anne, c. 14, contains a saving for Crown debts, 

s * which provides that nothing in the Act is "to let, hinder, or 
prejudice her Majesty, her heirs or successors, in the levying, 
recovering or seizing any debts, fines, penalties or forfeitures 
due, payable, or answerable to her " ; but that it shall and may be 
lawful for her to levy, recover and seize the same in the same 
manner as if the Act had never been made ; anything in the 
Act contained to the contrary notwithstanding. 
Landlord's The statute 8 Anne, c. 14, does not apply to tenancies for 

of tenancies l ess than a year ; but with regard to these, 7 & 8 Vict. c. 96, 
for less than s> 57 enacts that " no landlord of any tenement let at a weekly 
rent shall have any claim or lien upon any goods taken in exe- 
cution under the process of any Court of law for more than four 
weeks' arrears of rent ; and if such tenement shall be let for any 
other term less than a year, the landlord shall not have any claim 
or lien on such goods for more than the arrears of rent accruing 
during four such terms or times of payment." 
County Court With regard to County Court executions, sect. 160 of the 
executions. County Courts Act? 1888 ( 51 & 59 yi e t. c . 43) } pr0 vides that 

the statute of Anne shall have no application thereto, but in lieu 
of that statute provisions enabling the landlord, by notice to the 
bailiff within five days of the taking, to claim certain arrears of 
rent are enacted. 
Attornment It may be added with regard to attornment that the only 

advantage to be now gained by an attornment clause in a 
mortgage is the facility it affords for obtaining possession of 
the mortgaged property. Mumford v. Collier, 25 Q. B. D. 279 ; 
59 L. J. Q. B. 552. 



291 



Chapter XXIV. 

BILLS OF SALE. 

PAGE 

Synopsis of Statutes 291 

Forms of Bills of Sale 307 

llHiat constitutes a Bill of Sale ------ 308 

What may be the Subject of a Bill of Sale - - - - 317 

Formalities to be observed - 319 

(1) Statement of Consideration ----- 319 

(2) Description of Chattels 323 

(3) Defeasance, fyc. - 325 

(4) Form 325 

(5) Attending Execution ------ 337 

(a) Description of Parties ----- 337 

(b) Attestation 339 

(c) Affidavit of Execution and Attestation - - 341 
Registration --------- 343 

Grantor's continued Possession ------ 345 

Grantee's Seizure or taking Possession - 347 

Consolidation --------- 348 

Transfer or Assignment of Bill of Sale - 348 



Synopsis of Statutes. 

A bill of sale is, perhaps, the most usual form of adverse claim 
in execution. It is accordingly essential to be conversant with 
the subject, and, in particular, with the recent Bills of Sale Acts, 
the majority of existing bills of sale being governed by these 
Acts. This object will, it is conceived, be best effected by the 
following mode of treating the subject. It should be noticed 
that the Bills of Sale Acts of 185 1 and 1866 have been repealed 
by section 23 of the Bills of Sale Act, 1878, except so far as it 
has been provided by that section that they shall continue in 
force with regard to bills of sale executed before the commence- 
ment of that Act. 

i 2 



292 



BILLS OF SALE. 



Bill of sale 
void, unless 
the same or a 
copy be filed 
within 
twenty-one 
days. 



Bills of Sale Act, 1854 (17 & 18 Vict. c. 36) (a). 

(Date of Commencement, lOtk July, 1854.) 

Sect. 1. "Every bill of sale of personal chattels made after 
the passing of this Act, either absolutely or conditionally, or 
subject or not subject to any trusts, and whereby the grantee or 
holder shall have power, either with or without notice, and either 
immediately after the making of such bill of sale or at any future 
time, to seize or take possession of any property and effects com- 
prised in or made subject to such bill of sale, and every schedule 
or inventory which shall be thereto annexed or therein referred 
to, or a true copy thereof, and of every attestation of the execu- 
tion thereof, shall, together with an affidavit of the time of such 
bill of sale being made or given, and a description of the resid- 
ence and occupation of the person making or giving the same, 
or in case the same shall be made or given by any person under 
or in the execution of any process, then a description of the 
residence and occupation of the person against whom such pro- 
cess shall have issued, and of every attesting witness to such bill 
of sale, be filed with the officer acting as clerk of the docquets 
and judgments in the Court of Queen's Bench, within twenty- 
one days after the making or giving of such bill of sale (in like 
manner as a warrant of attorney in any personal action given 
by a trader is now by law required to be filed), otherwise such 
bill of sale shall as against [amongst others] all sheriffs' officers 
and other persons seizing any property or effects comprised in 
such bill of sale in the execution of any process of any Court of 
law or equity authorizing the seizure of the goods of the person 
by whom or of whose goods such bill of sale shall have been 
made, and against every person on whose behalf such process 
shall have been issued, be null and void to all intents and pur- 
poses whatsoever, so far as regards the property in or right to 
the possession of any personal chattels comprised in such bill of 
sale which at or after the time of such bankruptcy, or of filing 
the insolvent's petition in such insolvency, or of the execution by 
the debtor of such assignment for the benefit of his creditors, or 
of executing such process (as the case may be), and after the 
expiration of the said period of twenty-one days, shall be in the 
possession or apparent possession of the person making such bill 



(a) This Act is repealed by the Bills of Sale Act, 1878 (41 & 42 Vict. 
c. 31) B. Td, pod, p. 301. 



S V X PSIS < ) P STATUTES. 293 

of sale, or of any person against whom the process shall have 
issued under or in the execution of which such bill of sale shall 
have been made or given, as the case may be." 

Sect. 2. "If such bill of sale shall be made or given subject Defeasance or 
to any defeasance or condition or declaration of trust not con- everv bin of 
tained in the body thereof, such defeasance or condition or sale to be 
declaration of trust shall, for the purposes of this Act, be taken 8ame paper or 
as part of such bill of sale, and shall be written on the same P arcnm ent. 
paper or parchment on which such bill of sale shall be written, 
before the time when the same or a copy thereof respectively 
shall be filed, otherwise such bill of sale shall be null and void 
to all intents and purposes, as against the same persons and as 
regards the same property and effects, as if such bill of sale or a 
copy thereof had not been filed according to the provisions of 
this Act." 

By sect. 3, the officer of the Court is to keep a book con- Officer of 
taming particulars of each bill of sale. Court to keep 

° x . . record. 

By sect. 4, the officer is entitled to a fee of 1*. for filing a Fee of ffi cer 

bill of sale or a copy thereof, and shall render an account of the for filing. 

same to the commissioners of the treasury. 

By sect. 5, office copies or extracts are to be given to any office copies. 

person on payment at like rate as for copies of judgments. 

Sect. 6 provides for entry of satisfaction. Entry of 

Sect. 7. "In construing this Act the following words and ' ' 

expressions shall have the meanings hereby assigned to them, of terms. 

unless there be something in the subject or context repugnant 

to such constructions ; (that is to say), — 

" The expression ' bill of sale ' shall include bills of sale, 
assignments, transfers, declarations of trust without transfer, 
and other assurances of personal chattels, and also powers 
of attorney, authorities, or licences to take possession of 
personal chattels as security for any debt, but shall not 
include the following documents ; that is to say, assign- 
ments for the benefit of the creditors of the person making 
or giving the same ; marriage settlements ; transfers or 
assignments of any ship or vessel or any share thereof; 
transfers of goods in the ordinary course of business of any 
trade or calling ; bills of sale of goods in foreign parts or 
at sea; bills of lading ; India warrants ; warehouse keepers' 
certificates ; warrants or orders for the delivery of goods, or 
any other documents used in the ordinary course of business 
as proof of the possession or control of goods, or authorizing 



294 



BILLS OF SALE. 



Extent of Act. 



or purporting to authorize, either by indorsement or by 
delivery, the possessor of such document to transfer or 
receive goods thereby represented : 

" The expression ' personal chattels ' shall mean goods, furni- 
ture, fixtures, and other articles capable of complete transfer 
by delivery, and shall not include chattel interests in real 
estate, nor shares or interests in the stock, funds, or secu- 
rities of any government, or in the capital or property of 
any incorporated or joint stock company, nor choses in 
action, nor any stock or produce upon any farm or lands 
which by virtue of any covenant or agreement, or of the 
custom of the country, ought not to be removed from any 
farm where the same shall be at the time of the making or 
giving of such bill of sale : 

" Personal chattels shall be deemed to be in the ' apparent 
possession ' of the person making or giving the bill of sale 
so long as they shall remain or be in or upon any house, 
mill, warehouse, building, works, yard, land or other 
premises occupied by him, or as they shall be used and 
enjoyed by him in any place whatsoever, notwithstanding 
that formal possession thereof may have been taken by or 
given to any other person." 

Sect. 8. " This Act shall not extend to Scotland." 



Construction, 
of Act. 

Short titles. 



Definition of 
registration 
of a bill of 



Renewal of 
registiation 
of bills of 



The Bills of Sale Act, 1866 (29 & 30 Vict. c. 96) (b). 

An Act to amend the Bills of Sale Act, 1854. 

(Date of Commencement, 10th August, 1866.) 

Sect. 1. " The principal Act and this Act shall, as far as is 
consistent with the tenor of such Acts, be construed together." 

Sect. 2. " The principal Act may be cited as ' The Bills of 
Sale Act, 1854,' and this Act may be cited as ' The Bills of 
Sale Act, 1866. 5 " 

Sect. 3. " The filing of a bill of sale, or a copy thereof, with 
the affidavit required by the principal Act, is hereinafter referred 
to as the registration of a bill of sale." 

Sect. 4. "The registration of a bill of sale under the principal 
Act shall, during the subsistence of such security, be renewed in 



(b) This Act is repealed by the Bills of Sale Act, 1878 (41 & 42 Vict. 
c. 31), e. 23, post, p. 301. 



SYNOPSIS OF STATUTKS. 



295 



maimer hereinafter mentioned once in every period of five years, 
commencing from the day of the registration, and, if not so 
renewed, such registration shall cease to be of any effect at the 
expiration of any period of five years during which a renewal 
has not been made as hereby required, subject to this provision, 
that where a period of five years from the original registration 
of any bill of sale under the principal Act has expired before the 
first day of January one thousand eight hundred and sixty-seven, 
such bill of sale shall be as valid to all intents and purposes as it 
would have been if this Act had not been passed, if such regis- 
tration be renewed in manner aforesaid before the first day of 
January one thousand eight hundred and sixty-seven." 

Sect. 5 provides for the mode of renewing bills of sale. ^f 1 ne V 1 ? f 

, .,-,. mils of sale. 

By sect, 6 the affidavit of renewal is to bear a five shilling sta 011 

Stamp. affidavit. 

By sect. 7 the Masters of the Queen's Bench are to keep a Record of 
book containing particulars of each bill of sale and the affidavit 
of renewal, and such book and every filed bill of sale or copy and Search. 
affidavit of renewal may be searched on payment of one shilling. 

By sect. 8 office copies of affidavits of renewal are to be Office copies 

t i i n ,i of affidavits. 

supplied on payment tor the same. 

Sect. 9 provides for the swearing of affidavits before one of Swearing 

, ,, L „ . „ , .,, , ° affidavit-. 

the Masters oi the Queen s Bench. 

Sect. 10 provides for the application of enactments relating to Stamp-. 
common law stamps to this Act. 

Sect. 11 provides that this Act shall not extend to Scotland or Extent of Act. 
Ireland. 

In Schedules (A) and (B) to the Act a form of affidavit of Forms of 

renewal and a form of the book referred to in sect. 7 are set out. book of par- 
ticulars. 

The Bills of Sale Act, 1878 (41 & 42 Vict. c. 31). 

Sect. 1. "This Act may be cited for all purposes as ' The Short title. 
Bills of Sale Act, 1878.' " 

Sect. 2. " This Act shall come into operation on the 1st day Commenoe- 
of January, 1879, which day is in this Act referred to as the 
commencement of this Act." 

Sect. 3. "This Act shall apply to every bill of sale executed on Applical 
or after the 1st day of January, 1879 (whether the same be abso- 
lute, or subject or not subject to any trust), whereby the holder or 
grantee has power, either with or without notice, and either im- 
mediately or at any future time, to seize or take possession of 



296 BILLS OF SALE. 

any personal chattels comprised in or made subject to such bill 
of sale." 
Interpretation Sect. 4. " In this Act the following words and expressions 
shall have the meanings in this section assigned to them respec- 
tively, unless there be something in the subject or context 
repugnant to such construction ; (that is to say,) 

" The expression ' bill of sale ' shall include bills of sale, 
assignments, transfers, declarations of trust without transfer, 
inventories of goods with receipt thereto attached, or receipts 
for purchase-money of goods, and other assurances of per- 
sonal chattels, and also powers of attorney, authorities, or 
licenses to take possession of personal chattels as security 
for any debt, and also any agreement, whether intended or 
not to be followed by the execution of any other instrument, 
by which a right in equity to any personal chattels, or to 
any charge or security thereon, shall be conferred, but shall 
not include the following documents ; that is to say, assign- 
ments for the benefit of the creditors of the person making 
or giving the same, marriage settlements, transfers or as- 
signments of any ship or vessel or any share thereof, transfers 
of goods in the ordinary course of business of any trade or 
calling, bills of sale of goods in foreign parts or at sea, bills 
of lading, India warrants, warehouse keepers' certificates, 
warrants or orders for the delivery of goods, or any other 
documents used in the ordinary course of business as proof 
of the possession or control of goods, or authorising or pur- 
porting to authorise, either by indorsement or by delivery, 
the possessor of such document to transfer or receive goods 
thereby represented : 
" The expression ' personal chattels ' shall mean goods, furni- 
ture, and other articles capable of complete transfer by 
delivery, and (when separately assigned or charged) fix- 
tures and growing crops, but shall not include chattel 
interests in real estate, nor fixtures (except trade machinery 
as hereinafter defined), when assigned together with a 
freehold or leasehold interest in any land or building to 
which they are affixed, nor growing crops when assigned 
together with any interest in the land on which they grow, 
nor shares or interests in the stock, funds, or securities of 
any government, or in the capital or property of incor- 
porated or joint stock companies, nor choses in action, nor 
any stock or produce upon any farm or lands which by 



SYNOPSIS OF STATUTES. 297 

virtue of any covenant or agreement or of the custom of the 
country ought not to be removed from any farm where the 
same are at the time of making or giving of such bill of sale : 
" Personal chattels shall be deemed to be in the ' apparent 
possession ' of the person making or giving a bill of sale, so 
long as they remain or are in or upon any house, mill, ware- 
house, building, works, yard, land, or other premises occu- 
pied by him, or are used and enjoyed by him in any place 
whatsoever, notwithstanding that formal possession thereof 
may have been taken by or given to any other person : 
" ' Prescribed ' means prescribed by rules made under the 

provisions of this Act," 
Sect. 5. "From and after the commencement of this Act Application of 
trade machinery shall, for the purposes of this Act, be deemed machinery. 
to be personal chattels, and any mode of disposition of trade 
machinery by the owner thereof which would be a bill of sale 
as to any other personal chattels shall be deemed to be a bill of 
sale within the meaning of this Act. 
" For the purposes of this Act — 

" ' Trade machinery ' means the machinery used in or 
attached to any factory or workshop ; 

" 1st. Exclusive of the fixed motive-powers, such as 
the water- wheels and steam engines, and the 
steam boilers, donkey engines, and other fixed 
appurtenances of the said motive-powers ; and 
" 2nd. Exclusive of the fixed power machinery, such 
as the shafts, wheels, drums, and their fixed 
appurtenances, which transmit the action of the 
motive-powers to the other machinery, fixed and 
loose ; and 
" 3rd. Exclusive of the pipes for steam, gas, and water 
in the factory or workshop. 

" The machinery or effects excluded by this 
section froni the definition of trade machinery 
shall not be deemed to be personal chattels within 
the meaning of this Act. 
" 'Factory or workshop' means any premises on which any 
manual labour is exercised by way of trade, or for pur- 
poses of gain, in or incidental to the following purposes 
or any of them ; that is to say, 

" (a) In or incidental to the making any article or 
part of an article ; or 



298 BILLS OF SALE. 

" (b) In or incidental to the altering, repairing, orna- 
menting, finishing, of any article ; or 
" (c) In or incidental to the adapting for sale any 
article." 
Certain Sect. 6. " Every attornment, instrument, or agreement, not 

instruments i • .., •■-, « j. . .. 

o-iviug powers being a mining lease, whereby a power 01 distress is given or 
of distress to agreed to he given bv any person to any other person by way 

be subject to ? f J J f J f J J 

this Act. ol security lor any present, future, or contingent debt or 

advance, and whereby any rent is reserved or made payable as a 
mode of providing for the payment of interest on such debt or 
advance, or otherwise for the purpose of such security only, 
shall be deemed, to be a bill of sale, within the meaning of this 
Act, of any personal chattels which may be seized or taken 
under such power of distress. 

" Provided, that nothing in this section shall extend to any 
mortgage of any estate or interest in any land, tenement, or 
hereditament which the mortgagee, being in possession, shall have 
demised to the mortgagor as his tenant at a fair and. reasonable 
rent." 
Fixtures or Sect. 7. " No fixtures or growing crops shall be deemed, 

not to U be. C10pS under this Act, to be separately assigned or charged by reason 
deemed only that they are assigned by separate words, or that power is 

assigned when given to sever them from the land or building to which they 
t assesb are arnxec ^ or ^ rom the land on which they grow, without other- 

same instru- wise taking possession of or dealing with such land or building, 
or land, if by the same instrument any freehold or leasehold 
interest in the land or building to which such fixtures are 
affixed, or in the land on which such crops grow, is also con- 
veyed or assigned to the same persons or person. 

" The same rule of construction shall be applied to all deeds 
or instruments, including fixtures or growing crops, executed 
before the commencement of this Act, and then subsisting and 
in force, in all questions arising under any bankruptcy, liquida- 
tion, assignment for the benefit of creditors, or execution of any 
process of any Court, which shall take place or be issued after 
the commencement of this Act." 
Avoidance of Sect. 8. " Every bill of sale to which this Act applies shall be 
bills odhjale in duly attested and shall be registered under this Act, within seven 
certain cases. Jays after the making or giving thereof, and shall set forth the 
consideration for which such bill of sale was given, otherwise 
such bill of sale, as against all trustees or assignees of the estate 
of the person whose chattels, or any of them, are comprised in 



SYNOPSIS OP STATUTES. 299 

such bill of sale under the law relating to bankruptcy or liquida- 
tion, or under any assignment for the benefit of the creditors of 
such person, and also as against all sheriff's officers and other 
persons seizing any chattels comprised in such bill of sale, in 
the execution of any process of any Court authorising the 
seizure of the chattels of the person by whom or of whose 
chattels such bill has been made, and also as against every per- 
son on whose behalf such process shall have been issued, shall 
be deemed fraudulent and void so far as regards the property in 
or right to the possession of any chattels comprised in such bill 
of sale which, at or after the time of filing the petition for bank- 
ruptcy or liquidation, or of the execution of such assignment, or 
of executing such process (as the case may be), and after the 
expiration of such seven days are in the possession or apparent 
possession of the person making such bill of sale (or of any per- 
son against whom the process has issued under or in the execu- 
tion of which such bill has been made or given, as the case may 
be) " (a). 

Sect. 9. " Where a subsequent bill of sale is executed within Avoidance of 
or on the expiration of seven days after the execution of a prior ^te bills of *" 
unregistered bill of sale, and comprises all or any part of the sale - 
personal chattels comprised in such prior bill of sale, then, if 
such subsequent bill of sale is given as a security for the same 
debt as is secured by the prior bill of sale, or for any part of 
such debt, it shall, to the extent to which it is a security for the 
same debt or part thereof, and so far as respects the personal 
chattels or parts thereof comprised in the prior bill, be absolutely 
void, unless it is proved to the satisfaction of the Court having 
cognizance of the case that the subsequent bill of sale Avas bond 
fide given for the purpose of correcting some material error in 
the prior bill of sale, and not for the purpose of evading this Act." 

Sect. 10. " A bill of sale shall be attested and registered Mode of 

under this Act iu the following manner : — registering 

mi • <• bills of sale. 

" (1.) The execution of every bill of sale shall be attested by 

a solicitor of the Supreme Court, and the attestation 

shall state that before the execution of the bill of sale 

the effect thereof has been explained to the grantor by 

the attesting solicitor (</) : 

(c) This section is repealed by the Bills of Sale Act, 1882 (45 & 46 Vict. 
c. 43), b. 1<5, po&t, p. 305. 

(rf) Sub-strt. 1 of sect. 10 is repealed by the Bills of Sale Act, 1882 
(45 & 40 Vict. C. 43), sect. 10, post, p. 304. 



300 



BILLS OF SALE. 



Priority ac- 
cording to 
order of 
registration. 



Transfer 
need not be 
registered. 

Renewal of 
registration. 



" (2.) Such bill, with every schedule or inventory thereto 
annexed or therein referred to, and also a true copy of 
such bill and of every such schedule or inventory, and 
of every attestation of the execution of such bill of 
sale, together with an affidavit of the time of such bill 
of sale being made or given, and of its due execution 
and attestation, and a description of the residence and 
occupation of the person making or giving the same (or 
in case the same is made or given by any person under 
or in the execution of any process, then a description 
of the residence and occupation of the person against 
whom such process issued), and of every attesting 
witness to such bill of sale, shall be presented to and 
the said copy and affidavit shall be filed with the 
registrar within seven clear days after the making or 
giving of such bill of sale, in like manner as a warrant 
of attorney in any personal action given by a trader is 
now by law required to be filed : 
" (3.) If the bill of sale is made or given subject to any 
defeasance or condition, or declaration of trust not 
contained in the body thereof, such defeasance, con- 
dition, or declaration shall be deemed to be part of 
the bill, and shall be written on the same paper or 
parchment therewith before the registration, and shall 
be truly set forth in the copy filed under this Act 
therewith and as part thereof, otherwise the registra- 
tion shall be void. 
" In case two or more bills of sale are given, comprising 
in whole or in part any of the same chattels, they shall have 
priority in the order of the date of their registration respectively 
as regards such chattels. 

" A transfer or assignment of a registered bill of sale need 
not be registered." 

Sect. 11. " The registration of a bill of sale, whether executed 
before or after the commencement of this Act, must be renewed 
once at least every five years, and if a period of five years 
elapses from the registration or renewed registration of a bill of 
sale without a renewal or further renewal (as the case may be), 
the registration shall become void. 

" The renewal of a registration shall be effected by filing with 
the registrar an affidavit stating the date of the bill of sale and 
of the last registration thereof, and the names, residences, and 



SYNOPSIS OF STATUTES. 301 

occupations of the parties thereto as stated therein, and that the 
bill of sale is still a subsisting security. 

" Every such affidavit may be in the form set forth in the 
Schedule (A) to this Act annexed. 

"A renewal of registration shall not become necessary by 
reason only of a transfer or assignment of a bill of sale." 

Sect. 12 provides for the form of register. Form of 

Sect. 13 relates to the registrar. ° . . ' 

i -n o • Registrar. 

Sect. 14 provides for the rectification of the register. Rectification 

Sect. 15. "Subject to and in accordance with any rules to be of register. 
made under and for the purposes of this Act, the registrar may E ^* I J °f 
order a memorandum of satisfaction to be written upon any 
registered copy of a bill of sale, upon the prescribed evidence 
being given that the debt (if any) for which such bill of sale 
was made or given has been satisfied or discharged " (e). 

Sect. 1G provides for the taking of copies, &c. (/). Copies may 

Sect. 1 i relates to affidavits. . __. . .\ 

Affidavits. 
Sects. 18 and 19 relate to fees. Fees 

Sect. 20. "Chattels comprised in a bill of sale which has Order and 
been and continues to be duly registered under this Act shall ^sp 031 * 1011 - 
not be deemed to be in the possession, order, or disposition of 
the grantor of the bill of sale within the meaning of the 
Bankruptcy Act, 1869." 

Sect. 21 relates to rules (g). Rules. 

Sect. 22. " When the time for registering a bill of sale Time for 
expires on a Sunday, or other day on which the registrar's re » lstratlon - 
office is closed, the registration shall be valid if made on the 
next following day on which the office is open." 

Sect. 23. " From and after the commencement of this Act, Repeal of 
the Bills of Sale Act, 1854, and the Bills of Sale Act, 1866, yS^g*. 18 
shall be repealed : Provided that (except as is herein expressly 29 iV v 30 Vict - 
mentioned with respect to construction and with respect to 
renewal of registration) nothing in this Act shall affect any bill 
of sale executed before the commencement of this Act, and as 



(e) And see 11. of S. 0. 1883, Ord. 61, it. 2G and 27, and Practice 
Master's Rules, 1880 to L885, [25) Bills of Sale Departm 

(/) This section is partially repealed by the Bills of Sale Act, 1882 [45 
& 46 Vict. c. 43), s. 16, post, p. 305. 

(</) This section is repealed by the Bills of Sale Act, 1882 [ to & 16 Vict, 
c. 43), s. 15, post, p. 305. It is not, however, repealed as to absolute hills 
of sale. Swift v. Pannell, 21 eh. D. 210; 53 L. J. Ch. 341; and see Ex 
parte Izard, In re Chappie, 2:', Oh. D. 409; 52 L. J. Ch. 302. 



302 



BILLS OF SALE. 



regards bills of sale so executed the Acts hereby repealed shall 

continue in force. 

" Any renewal after the commencement of this Act of the 

registration of a bill of sale executed before the commencement 

of this Act, and registered under the Acts hereby repealed, shall 

be made under this Act in the same manner as the renewal of a 

registration made under this Act." 
Extent of Act. Sect. 24. "This Act shall not extend to Scotland or to 

Ireland." 
Forms of I n Schedule (A) will be found the form of affidavit of renewal 

renewal referred to in section 11, and in Schedule (B) will be found a 

and register, form of the register mentioned in section 12. 



Short title. 



Commence- 
ment of Act. 



Construction 
of Act, 
41 & 42 Vict. 
c. 31. 



Interpretation 
clause. 



Bill of sale to 
have schedule 
of property 
attached 
thereto. 



The Bills of Sale Act (1878) Amendment Act, 1882 
(45 & 46 Vict. c. 43). 

Sect. 1. "This Act may be cited for all purposes as 'The 
Bills of Sale Act (1878) Amendment Act, 1882 ' and this Act 
and the Bills of Sale Act, 1878, may be cited together as ' The 
Bills of Sale Acts, 1878 and 1882.'" 

Sect. 2. " This Act shall come into operation on the 1st day 
of November, 1882, which date is hereinafter referred to as the 
commencement of this Act." 

Sect. 3. " The Bills of Sale Act, 1878, is hereinafter referred 
to as ' the principal Act,' and this Act shall, so far as is consis- 
tent with the tenor thereof, be construed as one with the prin- 
cipal Act ; but, unless the context otherwise requires, shall not 
apply to any bill of sale duly registered before the commence- 
ment of this Act so long as the registration thereof is not avoided 
by non-renewal or otherwise. 

" The expression ' bill of sale,' and other expressions in this 
Act, have the same meaning as in the principal Act, except as 
to bills of sale or other documents mentioned in section 4 of the 
principal Act, which may be given otherwise than by way of 
security for the payment of money, to which last-mentioned bills 
of sale and other documents this Act shall not apply." 

Sect. 4. " Every bill of sale shall have annexed thereto or 
written thereon a schedule containing an inventory of the per- 
sonal chattels comprised in the bill of sale ; and such bill of sale, 
save as hereinafter mentioned, shall have effect only in respect 
of the personal chattels specifically described in the said schedule ; 



SYNOPSIS OF STATUTES. 303 

and shall be void, except as against the grantor, in respect of 
any personal chattels not so specifically described." 

Sect. 5. " Save as hereinafter mentioned, a bill of sale shall Bill of sale 

i • -i . -y/i i • if i not to affect 

be void, except as against the grantor, in respect ot any personal after-acqnired 

chattels specifically described in the schedule thereto of which property. 

the grantor was not the true owner at the time of the execution 

of the bill of sale." 

Sect. 6. " Nothing contained in the foregoing sections of this Exception as 

Act shall render a bill of sale void in respect of any of the things. 

following things ; (that is to say,) 

" (1.) Any growing crops separately assigned or charged where Growing 

such crops were actually growing at the time when the Cl0 ^ s< 

bill of sale was executed ; 

" (2.) Any fixtures separately assigned or charged, and any Machinery, 

plant, or trade machinery where such fixtures, plant, tuted. 

or trade machinery are used in, attached to, or brought 

upon any laud, farm, factory, workshop, shop, house, 

warehouse, or other place in substitution for any of 

the like fixtures, plant, or trade machinery specifically 

described in the schedule to such bill of sale." 

Sect. 7. " Personal chattels assigned under a bill of sale shall Bill of sale, 

not be liable to be seized or taken possession of by the grantee se i ze) exc . e pt 

for any other than the following causes : — m certam 

" ° . events, to be 

" (1.) If the grantor make default in payment of the sum or void. 

sums of money thereby secured at the time therein 

provided for payment, or in the performance of any 

covenant or agreement contained in the bill of sale 

and necessary for maintaining the security ; 
" (2.) If the grantor shall become a bankrupt, or suffer the 

said goods or any of them to be distrained for rent, 

rates, or taxes ; 
" (3.) If the grantor shall fraudulently either remove or suffer 

the said goods, or any of them, to be removed from 

the premises ; 
" (4.) If the grantor shall not, without reasonable excuse, 

upon demand in writing by the grantee, produce to 

him his last receipts for rent, rates, and taxes ; 
" (5.) If execution shall have been levied against the goods 

of the grantor under any judgment at law : 
" Provided that the grantor may within five days from the 
seizure or taking possession of any chattels on account of any 
of the above-mentioned causes, apply to the High Court, or to a 



304 



BILLS OF SALE. 



Bill of sale 
to be void, 
unless at- 
tested and 
registered. 



Form of bill 
of sale. 



Attestation. 



Repeal of 
s. 10, ss. 1, 
of Bills of 
Sale Act, 
1878. 



Local regis- 
tration of 
contents of 
bill of sale. 



32 & 33 Vict, 
c. 71, s. 60. 



judge thereof in Chambers, and such Court or judge, if satisfied 
that by payment of money or otherwise the said cause of seizure 
no longer exists, may restrain the grantee from removing or 
selling the said chattels, or may make such other order as may 
seem just." 

Sect. 8. " Every bill of sale shall be duly attested, and shall 
be registered under the principal Act within seven clear days 
after the execution thereof, or if it is executed in any place out 
of England then within seven clear days after the time at which 
it would in the ordinary course of post arrive in England if 
posted immediately after the execution thereof ; and shall truly 
set forth the consideration for which it was given ; otherwise 
such bill of sale shall be void in respect of the personal chattels 
comprised therein." 

Sect. 9. " A bill of sale made or given by way of security for 
the payment of money by the grantor thereof shall be void 
unless made in accordance with the form in the schedule to this 
Act annexed." 

Sect. 10. " The execution of every bill of sale by the grantor 
shall be attested by one or more credible witness or witnesses, 
not being a party or parties thereto. So much of section 10 of 
the principal Act as requires that the execution of every bill of 
sale shall be attested by a solicitor of the Supreme Court, and 
that the attestation shall state that before the execution of the 
bill of sale the effect thereof has been explained to the grantor 
by the attesting witness, is hereby repealed." 

Sect. 11. " Where the affidavit (which under section 10 of the 
principal Act is required to accompany a bill of sale when pre- 
sented for registration) describes the residence of the person 
making or giving the same or of the person against whom the 
process is issued to be in some place outside the London bank- 
ruptcy district as defined by the Bankruptcy Act, 1869, or 
where the bill of sale describes the chattels enumerated therein 
as being in some place outside the said London bankruptcy 
district, the registrar under the principal Act shall forthwith 
and within three clear days after registration in the principal 
registry, and in accordance with the prescribed directions, trans- 
mit an abstract in the prescribed form of the contents of such 
bill of sale to the county court registrar in whose district such 
places are situate, and if such places are in the districts of 
different registrars to each such registrar. 

"Every abstract so transmitted shall be filed, kept, and 



SYNOPSIS OF STATUTES. 

indexed by the registrar of the County Court in the prescribed 
manner, and any person may search., inspect, make extracts from, 
and obtain copies of the abstract so registered in the like manner 
and upon the like terms as to payment or otherwise as near as 
may be as in the case of bills of sale registered by the registrar 
under the principal Act." 

Sect. 12. " Every bill of sale made or given in consideration Bill of sale 
of any sum under thirty pounds shall be void." k e voi( j 

Sect. 13. "All personal chattels seized or of which possession Chattels not 
is taken after the commencement of this Act, under or by virtue *° ^ e 1( J' emovcd 
of any bill of sale (whether registered before or after the com- 
mencement of this Act), shall remain on the premises where 
they were so seized or so taken possession of, and shall not be 
removed or sold until after the expiration of five clear days from 
the day they were so seized or so taken possession of." 

Sect. 14. " A bill of sale to which this Act applies shall be no Bill of sale 
protection in respect of personal chattels included in such bill of chattels 
sale which but for such bill of sale would have been liable to a 8 

and parochial 

distress under a warrant for the recovery of taxes and poor and rates. 
other parochial rates" (//). 

Sect. 15. " The 8th and 20th sections of the principal Act, Repeal of 
and also all other enactments contained in the principal Act f g a i e Act, 
which are inconsistent with this Act are repealed, but this 1§78 - 
repeal shall not affect the validity of anything done or suffered 
under the principal Act before the commencement of this Act." 

Sect. 16. " So much of the 16th section of the principal Act Inspection of 

rc *" r i s t crcd 

as enacts that any person shall be entitled at all reasonable biLa of sale, 
times to search the register and every registered bill of sale 
upon payment of one shilling for every copy of a bill of sale 
inspected is hereby repealed, and from and after the commence- 
ment of this Act any person shall be entitled at all reasonable 
times to search the register, on payment of a fee of one shilling, 
or such other fee as may be prescribed, and subject to such regula- 
tions as maybe prescribed, and shall be entitled at all reasonable 
times to inspect, examine, and make extracts from any and every 
registered bill of sale without being required to make a written 
application, or to specify any particulars in reference thereto, 
upon payment of one shilling for each bill of sale inspected, and 



(/() Sec as to the operation of this section the recent case of II imbledon 
Local Board v. Underwood, [1892] 1 Q. B. 836; 61 L. J. <>. B. 484; 67 
L. T. 55. 

m. x 



'306 BILLS OF SALE. 

such payment shall be made by a judicature stamp : Provided 
that the said extracts shall be limited to the dates of execution, 
registration, renewal of registration, and satisfaction, to the 
names, addresses and occupations of the parties, to the amount 
of the consideration, and to any further prescribed particulars." 
Debentures Sect. 17. " Nothing in this Act shall apply to any debentures 

to which Act . , t , t , i , ^ 

not to apply, issued by any mortgage, loan, or other incorporated company, 

and secured upon the capital stock or goods, chattels, and effects 

of such company." 

Extentof Act. Sect. 18. " This Act shall not extend to Scotland or Ireland." 

Statutory The statutory form in the schedule to this Act will be found 

form. 

post, p. 307. 

The Bills of Sale Act, 1890 (53 & 54 Vict. c. 53). 

An Act to exempt certain letters of hypothecation from the opera- 
tion of the Bills of Sale Act, 1882. [18th August, 1890.] 

Exemption of Sect. 1. " An instrument given or executed at any time prior 
hypothecation ^° suca deposit, re- shipment, or delivery as hereinafter men- 
of imported tioned, hypothecating or declaring trusts of imported goods 
45 & 4G Vict, during the interval between the discharge of the goods from 
c. 43, s. 9. ^ e g^-p ^ n ^^ they are imported and their deposit in a ware- 
house, factory, or store, or their being re-shipped for export, or 
delivered to a purchaser not being the purchaser giving or exe- 
cuting such instrument, shall not be deemed a bill of sale within 
the meaning of section nine of the Bills of Sale Act, 1882." 
Saving of Sect. 2. "Nothing in this Act shall affect the 0}:)eration of 

c. 52 s. 44. ' section forty-four of the Bankruptcy Act, 1883, in respect of 
any goods comprised in any such instrument as is hereinbefore 
described, if such goods would but for this Act be goods within 
the meaning of sub-section three of that section." 
Short title. Sect. 3. " This Act may be cited as the Bills of Sale Act, 

1890." 

The Bills of Sale Act, 1891 (54 & 55 Vict. c. 35). 

Ait Act to amend the Bills of Sale Act, 1890. [21st July, 1891.] 

Exemption of Sect. 1. " Section one of the Bills of Sale Act, 1890, shall be 
imported amended so as to read as follows: An instrument charging or 
goods from creating any security on or declaring trusts of imported goods 
Acts. given or executed at any time prior to their deposit in a ware- 

house, factory, or store, or to their being re-shipped for export, 
or delivered to a purchaser not being the person giving or exe- 



FORMS OF BILLS OF SALE. 307 

cuting such instrument, shall not be deemed a bill of sale within 
the meaning of the Bills of Sale Acts, 1878 and 1882." 

Sect. 2. " This Act may be cited as the Bills of Sale Act, Short title. 
1891." 



Forms of Bills of Sale. 

1. Statutory Form of Bill of Sale (Schedule to Bills of Sale 
Act, 1882). 

Tins Indenture made the day of between A. B. of 

of the one part, and C. D. of of the other part, Witnesseth 

that in consideration of the sum of £ now paid to A. B. by 

C. D., the receipt of which the said A. B. hereby acknowledges [or 
ichatever else the consideration may be~], he the said A. B. doth hereby 
assign unto C. 1)., his executors, administrators, and assigns, All 
and singular the several chattels and things specifically described in 
the schedule hereto annexed by way of security for the payment of 
the sum of £ , and interest thereon at the rate of per 

cent, per annum [or whatever else may be the rate~\. And the said 
A. B. doth further agree and declare that he will duly pay to the 
said C. D. the principal sum aforesaid, together with the interest 
then due, by eopial payments of £ on the day 

of \_or ichatever else may be the stipulated times or time of pay- 

rnent]. And the said A. B. doth also agree with the said C L). that 
he will [here insert terms as to insurance, payment of rent, or other- 
wise, which the parties may ayree to for the maintenance or defeasance 
of the security]. 

Provided always, that the chattels hereby assigned shall not be 
liable to seizure or to be taken possession of by the said C. D. for 
any cause other than those specified in section seven of the Bills of 
Sale Act (1878) Amendment Act, 1882. 

In witness, &c. 

Signed and sealed by the said A. B. 
in the presence of me 

E. F. 

[Add witness' name, address, and description]. 



2. Bill of Sale, from the Slieriff, of Goods taken in Execution(i). 

Tnis Indenture made the day of one thousand eight 

hundred and between of Esquire, High Sheriff 

of the county of (hereinafter called the said sheriff) of the 

one part and of (hereinafter called the purchaser) of 

the other part. Whereas a writ of fieri facias i-suing out of the 
Division of Hit Majesty's Eigh Court of Justice directed to 
the said sheriff was received at the office of the undersheriff of the 



(/) This form, for which the Author is indebted, is taken, with permis- 
sion, from App. ill. of B ■ I'- Bills of S I ■ .V ts, p. 27:2. 

x 2 



308 



BILLS OF SALE. 



said county commanding the said sheriff that he should cause to be 
levied of the goods and chattels of within his bailiwick a 

certain debt of which had recovered against him in the 

said division together with the sum of for interest damages 

costs and charges which the said had sustained and expended 

by reason of his suit. And whereas the said sheriff had by virtue 
of the said writ seized and taken in execution certain goods and 
chattels of the said being in and upon the messuage buildings 

and premises now in the occupation of the said situate and 

being in the county aforesaid and hath caused the same goods 

and chattels to be appraised by a person of competent skill 

who hath valued the same at the sum of And whereas [recite 

order for private sale~\. 

Now this indenture witnesseth that in consideration of the sum 
of upon the execution of these presents by the said purchaser 

paid to the said sheriff the receipt whereof is hereby acknowledged 
He the said sheriff as far as he lawfully can or may by virtue of 
his said office of sheriff but no further or otherwise doth hereby 
assign unto the said purchaser his executors administrators and 
assigns All and singular the goods chattels effects and things which 
have been taken in execution by the said sheriff by virtue of the 
said writ of fieri facias and which are specifically described in the 
schedule or inventory hereunder written or hereunto annexed To 
hold the said goods chattels effects and things unto the said 

purchaser his executors administrators and assigns absolutely. In 
witness whereof the said parties to these presents have hereunto 
set their hands and seals the day and year first above written. 

THE SCHEDULE ABOVE REFERRED TO. 



Signed with the name of sheriff x i 

of the county of , sealed with 

his seal of office and delivered as his 
act and deed by undersheriff of 

the said county in my presence, the 
effect of the above-written bill of sale 
having been explained to the said 
before his execution thereof by 
me the attesting solicitor. 



Receipt for 
purchase- 
money a bill 



What constitutes a Bill of Sale. 

See the Bills of Sale Act, 1854, sect. 7, the Bills of Sale Act, 
1878, sects. 4 and G, the Bills of Sale Act, 1882, sects. 3 and 17, 
and the Bills of Sale Acts of 1890 and 1891 (/.•). 

A receipt for the purchase-money of goods, with or without 
an inventory attached, is a bill of sale, if it is intended to 



ili) The Bills of Sale Acts are set o\it ante, pp. 292 et seq. 



WHAT CONSTITUTES A BILL OF SALE. 309 

operate as an assurance of the goods, but not otherwise, of sale if 
Marsden v. Meadows, 7 <>. 15. D. 80; 50 L. J. Q. B. 536; 45 JSSSSe 
L. T. 301 ; Rale v. Saloon Omnibus Co., 28 L. J. Ch. 777; 4 of goods. 
Drew. 492; and see Re Rood, Ex parte Trustee v. Burgess, 
68 L. T. 591. Accordingly, where on the evidence there is a 
complete contract independently of, and previous to, the docu- 
ments, and the documents cannot be looked upon as a memo- 
randum of the agreement in the sense that they are a record of 
the transaction, they cannot be, within the fair construction of 
the words " other assurances," bills of sale, so as to require 
registration or to be in the form required by the Act of 18 
In other words, where there is a perfect transaction without the 
documents, those documents cannot be considered as bills of sale 
within the meaning of the Acts. North Central Wagon Co. v. 
Manchester, Sheffield 8f Lincolnshire Rail. Co., 35 Ch. D. 191 ; 
56 L. J. Ch. 609 ; and see Raydon v. Brown, 59 L. T. 330, 
810; Jones v. Tower Furnishing Co., 61 L. T. 84; Manchester, 
Sheffield 8f Lincolnshire Rail. Co. v. North Central Wagon Co., 
13 App. Cas. 554 ; 58 L. J. Ch. 219 ; Allsop v. Day, 7 H. 
& X. 457 ; 31 L. J. Ex. 105 ; Ex parte Roman, Li re Broad- 
beat, L. R. 12 Eq. 598 (as qualified by Ex parte Mackay, Ex 
parte Broun, In re Jearons, L. E. 8 Ch. 643 ; 42 L. J. Bank. 
68) ; Byerley v.Prevost, L. R 6 C. P. 144; Graham v. Wilcockson 
and Munslow, 46 L. J. Ex. 55 ; In re Baton, Ex parte Cooper, 10 
Ch. D. 313 ; 48 L. J. Bank. 40; Woodejate v. Godfrey, 5 Ex. D. 
24; 49 L. J. Ex. 1 ; and Preece v. Grilling, Repworth [Claimant), 
53 L. T. 7G3. See also In re Robertson, Ex parte Lewin <y Co., 
9 Ch. D. 419 ; 47 L. J. Bank. 94 ; Ex parte Newitt, In re Garrad, 
16 Ch. D. 522 ; 51 L. J. Ch. 381 ; Newlove v. Shrewsbury, 21 
Q. B. D. 41 ; 57 L. J. Q. B. 476 ; Shepherd v. Pulbrook, 59 
L. T. 288 ; and French v. Bombemard, 60 L. T. 48. 

A memorandum of an agreement may be a bill of sale, as, for Memorandum 
example, where the tenant of a farm sold certain growing crops, matfbe^bUl 
giving the purchaser a document signed by both of them, of sal <?. 
whereby it was stated that the purchaser agreed to take and 
the tenant to assign the crops therein described for 6/. an acre, 
and where it was held that such document was a bill of sale 
within the meaning of the Bills of Sale Act, 1854. Braniom v. 
Griffits, 46 L. J. Q. B. 408. See also In re Robert*, Evans v. 
Roberts, 56 L. J. Ch. 952 ; and, iu particular, the judgment in 
that case of Kay, J. But a parol agreement to give a bill of B 
sale does not require registration under the Bills of Sale Act, of p!inli' U 



310 



BILLS OF SALE. 



agreement 
to give bill 
of sale. 



Document, 
recording 
transaction 
and regu- 
lating rights 
of pledgee of 
goods, not a 
bill. 



License to 
take posses- 
sion of goods 
as security for 
debt, not in 
statutory 
form, void. 



1878, and a bill of sale, given in pursuance of such an agree- 
ment, is not void under the Act by reason of the non-registration 
of the agreement. Ex parte Hauxwell, In re Hemingway, 23 Ch. 
D. 626. 

In In re Hardwick, Ex parte Hubbard, (C. A.) 17 Q,. B. D. 
690 ; 55 L. J. Q. B. 490, the claimant Hubbard agreed to lend 
moneys to Hardwick on the security of certain machines which 
Hardwick took to Hubbard; the moneys were advanced and 
the machines left with Hubbard. Certain documents, concur- 
rently signed by the borrower, acknowledged the receipt of the 
machines, and contained agreements to repay the loans and, in 
default, for the lender to sell. It was held, that the transaction 
being one of a pledge only the document did not constitute a 
bill of sale and was not within the Act of 1878 or that of 1882. 
And see Hilton v. Tucker, 39 Ch. D. 669 ; 57 L. J. Ch. 973. 
See also as to pledge of goods, Grigg v. National Guardian 
Assurance Co., [1891] 3 Ch. 206 ; 61 L. J. Ch. 11. 

In In re Townsend, Ex parte Parsons, 16 Q,. B. D. 532 ; 55 
L. J. Q. B. 137, a document in the following form — 

"To J. Parsons, Estate Agent. 

" Sir, — I hereby authorize and empower you to take immediate 
possession of all my goods, chattels, plate, and other effects at 
No. 26, Eaton Place, Kemp Town, Brighton, and to sell the same 
either by public auction or private contract as soon as conveniently 
may be, and out of the proceeds thereof I authorize you to deduct 
any moneys due from me to you and any accounts due from me to 
the trades-people in and about Kemp Town, and after deducting all 
proper charges for the sale of my effects and any moneys advanced 
by you, to pay over to me the balance thereof. 

"T. E. Townsend." 



was held to be, within the words of sect. 4 of the Act of 1878, a 
license to take possession of personal chattels as security for any 
debt and to come within the Act of 1882, and not being in the 
prescribed form to be void. In the same case the Court dis- 
approved of In re Hall, Ex parte Close, 14 Q. B. D. 386; 54 
L. J. Q. B. 43; and In re Cunningham, 28 Ch. D. 682; 54 
L. J. Ch. 448, so far as they lay down that a transaction which 
cannot by any possibility be brought within the form in the 
schedule to the Bills of Sale Act, 1882, is a transaction to which 
the Act does not apply ; and see as to license to take possession 
of chattels, Pulbrook v. Ashby, 56 L. J. Q. B. 376 ; 35 W. R. 
779 ; Stevens v. Marriott, 60 L. J. Q. B. 192 ; 39 W. R. 129 ; 
In re Watson, Ex parte The Official Receiver, 25 Q. B. D. 27 ; 59 



WHAT CONSTITUTES A BILL OF SALE. 311 

L. J. Q. B. 394 ; and as to authority to take possession of and 
sell goods, see the important case of Charlesworth v. Milk, 
(C. A.) 25 Q. B. D. 421 ; (II. L.) W. N. (1892), 63 ; [1892] 
A. C. 231. An agreement making goods in an agent's hands 
security for his advances to his principal has, moreover, been 
held not to ho a bill of sale. Morris v. Belobbcl-FUpo, [1892] 
2 Ch. 352. 

As to the operation of an agreement for hire as a bill of sale Agreement 
under the 1854 Act, see In re Crawcour, Ex parte Bobertson, or ire ' 
9 Ch. D. 419 ; 47 L. J. Bank. 94 ; and Ex parte Emmerson, In 
re Hawkins, 41 L. J. Bank. 20 ; 20 W. P. 110. See also as to 
hiring agreement, Madell v. Thomas, [1891] 1 Q. B. 230; 60 
L. J. Q. B. 227 ; and as to hiring and purchase agreement, 
Beckett v. Tower Assets Co., [1891] 1 Q. B. 638 ; 60 L. J. Q. B. 
493. An assignment by a furniture dealer of money coming Assignment 
due to him under a hire purchase agreement is not, however, ^^^^.^ 
within the purview of the Bills of Sale Act, 1878, being only purchase 
the assignment of a contract and not property passing in the no t a bill. 
goods. In re Davis Sf Co., Ex parte Bawlings, (C. A.) 22 Q. B. D. 
193 ; and see under this head, Coburn v. Collins, 35 Ch. D. 
373; 56 L. J. Ch. 504 ; Pulbrook v. Ashby 8f Co., ante; and 
Redhead v. Westwood, 59 L. T. 293. 

An agreement by a clause in an ordinary building contract Agreement in 

that all building and other materials brought by the builder ^ftSt* 11 " 

upon the land shall become the property of the landowner is materials 

not a bill of sale within the Bills of Sale Act, 1878. Beeves v. per^^land- 

Barlow, 12 Q. B. D. 436 ; and see Brown v. Bateman, L. P. 2 owner not a 

C. P. 272; 36 L. J. C. P. 134; Ex parte Newitt, In re Gamut, 16 ' 

Ch. D. 522 ; 51 L. J. Ch. 381 ; and Blake v. Izard, 16 W. P. 

108. But a mortgage deed of land and buildings in course of Whenmort- 

erection thereon by a builder, which gives a power to sell the S^Tand ° 

building materials independent of the power to enter upon and {"HH™* 8 , 1 !?, 
. . . x builder a bill 

take possession ot the premises, and exercisable without the latter of sale of 
power being exercised, is an assurance of personal dial (els or a rliattcls - 
license to take possession of personal chattels as security for a 
debt within the meaning of sect. 4 of the Bills of Sale Act, 1878, 
and therefore is a bill of sale and is subject to the operation of 
sect. 8 of the 1882 Act in respect of the personal chattels com- 
prised therein. Cii/npson v. Coles, 23 Q. B. D. 465 ; 58 L. J. 
Q. B. 346 (Broivn v. Bateman, ante; Blake v. Izard, ante ; Ex 
parte Newitt, In re Garrud, ante; Beeves v. Barlow, '/^'.dis- 
tinguished). It will be observed that the case of Climpson v. 



312 



BILLS OF SALE. 



Two docu- 
ments form- 
ing one 
security must 
be regarded 
as one tran- 
saction. 

Security 
■where lender 
takes imme- 
diate posses- 
sion not a 
bill. 

Nor when it 
cannot be 
expressed in 
statutory 
form. 

Second bill 
remedying 
first. 

Post-nuptial 
settlement, 
wben a bill 
within 1854 
Act. 

Memorandum 
of agrei incut, 
for marriage 
settlement 
not a bill. 



Coles was decided exclusively on the fact that a power was given 
to sell the building materials independent of the power to enter 
upon and take possession of the premises, and the Court appears 
to have expressed the opinion (at p. 471) that the same con- 
sideration applied to a mortgage as to an ordinary building 
agreement. But Wright, J., in Church v. Sage, 67 L. T. 801, 
while reconciling his judgment with the judgment in ClimpsonY. 
Coles, distinguished the case of Church v. Sage from such cases 
as Broun v. Bateman, ante ; Blake v. Izard, ante ; and Beeves v. 
Barlow, ante, on the ground that in those cases the decision was 
only that an ordinary building agreement between a landowner 
and builder was not brought within the Bills of Sale Acts 
merely by reason of a provision that the plant and materials, 
when brought upon the land, should be considered as annexed 
to the land, whereas in the case of Church v. Sage the assign- 
ment was not to the owner but to a stranger as security for a 
loan. 

"Where two instruments together constitute one security, they 
must be regarded as one transaction for the purpose of ascer- 
taining whether they are or are not within the Bills of Sale 
Acts. In re Cunningham 8f Co., 28 Ch. D. 682 ; 54 L. J. Ch. 
448. Where security is given for the repayment of an advance, 
and the lender takes immediate possession of the goods pledged, 
the security is not within the Bills of Sale Acts. lb. Moreover, 
when the security is of such a character that it could not possibly 
be expressed in the form in the Schedule to the 1882 Bills of 
Sale Act it is not a bill of sale within that Act. lb. 

As to the case of a debtor giving a second or fresh bill of sale 
with the sole object of remedying a defect in the first bill of sale, 
see the recent case of In re Ticecdale, Ex parte Ticeedale, [1892] 
2 Q. B. 216; 61 L. J. Q. B. 505. 

A post-nuptial settlement by which a man in consideration of 
natural love conveyed goods and chattels to trustees for the 
benefit of his wife and children was within the provisions of the 
1854 Act. Fowler v. Forster, 28 L. J. Q. B. 210. But a 
memorandum of agreement (not under seal) for a marriage 
settlement is a " marriage settlement " within the meaning of 
that expression in sect. 4 of the Bills of Sale Act, 1878, and 
does not, therefore, require registration under the Act. Wenman 
v. Lyon 8f Co., [1891] 2 Q, B. 192 ; 60 L. J. Q. B. 663. Ber 
Lopes, L. J., "It has been argued that the expression ' marriage 
settlement ' does not include an ante-nuptial agreement for a 



WHAT CONSTITUTES A BILL OF .SALE. 313 

settlement. I have no doubt that it does. It seems to me to 
include not merely a marriage settlement by deed, but every 
agreement which has the intention and effect of creating a tru-1 
in consideration of the intended marriage." 

A merely equitable assignment of chattels is within the Bills Equitable 
of Sale Acts of 1854 and 1878. Edwards v. Edwards, (C. A.) ofKtS? 
2 Ch. D. 291 ; 45 L. J. Ch. 391. ji«un 1878 

Bills of sale given by a company are not excepted from the Bil ^ b c m- 
provisions of the Bills of Sale Acts. In re Cunningham 8f Co., paniesnot 

, excepted from 

ante. Act/. 

As to attornment, it will be observed that by the 1878 Act, Attornment 
sect. 6, " Every attornment, instrument, or agreement, not being ^j^e^ 618 
a mining lease, whereby a power of distress is given or agreed to subject to 
be given by any person to any other person by way of security 
for any present, future, or contingent debt or advance, and 
whereby any rent is reserved or made payable as a mode of pro- 
viding for the payment of interest on such debt or advance, or 
otherwise for the purpose of such security only, shall be deemed 
to be a bill of sale, within the meaning of this Act, of any per- 
sonal chattels which may be seized or taken under such power 
of distress. Provided, that nothing in this section shall extend Proviso as to 
to any mortgage of any estate or interest in any land, tenement, certain cases. 
or hereditament which the mortgagee, being in possession, shall 
have demised to the mortgagor as his tenant at a fair and 
reasonable rent." And see as to attornment, Hatl v. Comfort, 
18 Q. B. D. 11 ; 56 L. J. Q. B. 185 ; In re Willis, Ex parte 
Kennedy, 21 Q. B. D. 384; 57 L. J. Q. B. 634; Pulbrook v. 
Ashby $ Co., 56 L. J. Q. B. 376 ; 35 \V. E. 779 ; Mumford 
v. Collier, 25 Q. B. D. 279; 59 L. J. Q. B. 552; and Green v. 
Marsh, (C. A.), [1892] 2 Q. B. 330; 61 L. J. Q. B. 442. 
Having regard to the Bills of Sale Acts, an attornment clause 
has not now the effect it formerly had of providing the additional 
means of raising mortgage money by way of distress. But such 
a clause is not altogether inoperative, for, as is shown by the 
above case of Mumford v. Cottier, ante, it is useful in enabling 
the mortgagee to obtain possession, and its retention on that 
account is therefore, as a general rule, useful to a mortgagee. 
It is not the relationship of landlord and tenant but only part of 
its incidents, namely, that of distress, which is prohibited. 

As to exemption of letters of hypothecation of imported goods Exemption of 
from the operation of the 1882 Act, see the Bills of Sale Act, w^ation 
1890, and as to exemption of securities on imported goods from and securities 



314 BILLS OF SALE. 

on imported the operation of the Bills of Sale Acts, 1878 and 1882, see the 
goods. B . ng of gale Actj lg91 

Debentures. With regard to debentures, non-compliance with the require- 

ments of the Bills of Sale Act, 1878, avoided debentures in 
respect of chattels, thereby charged, as against execution credi- 
tors or the holder of a subsequent, but duly registered, bill of 
sale, and even with notice of the debenture (Connelly v. Steer, 7 
Q. B. D. 520 ; Edwards v. Edwards, 2 Ch. D. 291 ; 45 L. J. 
Ch. 391 ; and Lyons v. Tucker, 7 Q. B. D. 523), although good 
as between the grantor and grantee (Ban's v. Good/nan, 5 C. P. 
D. 128), or a liquidator. In re Marine Mansions Co., L. E. 4Eq. 
601; 37 L. J. Ch. 113; and In re Asphaltic Wood Pavement 
Debentures ^ Co., W. N. (1883) 152; 49 L. T. 159. But it will be observed 
Act not to " that by sect. 17 of the 1882 Act, "Nothing in this Act shall 
appiy- a pply 1° an y debentures issued by any mortgage, loan, or other 

incorporated company, and secured upon the capital stock or 
What is a goods, chattels, and effects of such company." As to what is 
■within sect. an d what is not a debenture within the meaning of this section, 
17 - Ohitty, J., in Edmonds v. Blaina Furnaces Co., 36 Ch. D. 215 ; 

56 L. J. Ch. 815, says: "Now, ought I to put any narrow 
restrictive interpretation upon the term ' debenture ' in this 
section ? I see no reason why I should. I see one reason, 
though it may not cover all the ground, why I should not, and 
it is this, the two great classes of existing companies, viz., those 
established by Act of Parliament, incorporating the Companies 
Clauses Act of 1845, and those incorporated under the Com- 
panies Act, 1862, are bound by statutory provisions to keep a 
register of their debentures, using that term in the sense already 
explained [?'. e., an instrument generally, if not always, import- 
ing an obligation or covenant to pay]. The legislature, finding 
these existing provisions for registration, may have considered 
it was not necessary to require the registration under the Bills 
of Sale Acts of the secured debentures of an incorporated com- 
pany. The legislature may have acted on this ground, or may 
have taken the broader view that the secured debentures of in- 
corporated companies were not within the mischief intended to 
be remedied by the Bills of Sale Act. In determining what is 
or is not a debenture within the section, I am not bound to hold 
that an instrument is a debenture because it is called a deben- 
ture by the company issuing it, nor to hold it is not a debenture 
because it is not so called by the company. I must look at the 
substance of the instrument itself, and without the assistance of 



WHAT CONSTITUTES A BILL OF SAM'. 315 

an} 7 precise legal definition, form the best opinion I can, whether 
the instrument does or does not fall within the exemption of the 
section." Moreover, Chitty, J., in Levy v. Abercorris Slate and 
Slab Co., 37 Ch. D. 260 ; 57 L. J. Ch. 202, says : " Now look- 
ing at this section [17] once more I observe that it may be 
divided into four parts, it relates first to the thing called a 
'debenture'; secondly, it, the 'debenture,' must be 'issued'; 
thirdly, it must be issued by a particular company, that is, a 
' mortgage, loan, or other incorporated company.' The term 
' loan ' is a little awkward, and I do not know what is meant by 
a ' loan company,' but I pass it by, as also the term ' mortgage' 
company, which is also not quite clear, because I am satisfied 
that the words 'or other incorporated company' are large enough 
and must be construed as they stand, and are not to be cut 
down by the context. Then the fourth part is that the deben- 
ture must be ' secured upon the capital stock or goods, chattels 
and effects of such company.' The material words here are 
' goods, chattels and effects.' In my opinion a ' debenture ' 
means a document which either creates a debt or acknowledges 
it, and any document which fulfils either of these conditions is a 
' debenture.' I cannot find any precise legal definition of the 
term, it is not either in law or commerce a strictly technical 
term, or what is called a term of art. It must be ' issued,' but 
' issued ' is not a technical term, it is a mercantile term well 
understood ; ' issue ' here means the delivery over by the com- 
pany to the person who has the charge. As to what 'company' 
means, I have already said it must be by 'an incorporated com- 
pany,' and it must be secured on the 'goods, chattels and effects' 
of the company. Having thus gone through the section once 
again, I find I cannot add anything further on this point to 
what I have already stated in The Blaina Furnaces Case." See 
also Topham v. Greenside Co., 37 Ch. D. 281 ; 57 L. J. Ch. 583. 
It has been, moreover, since held that a debenture of an incor- 
porated company is not a bill of sale recpiiring registration either 
under the Bills of Sale Act, 1878, or that of 1882. Ready. 
Joannon, 25 Q. B. D. 300; 59 L. J. Q. B. 544 (dicta of 
Grove, J., in Jenkinson v. Brandley Mining Co., 19 Q. B. D. 
568 ; 35 W. R. 834, disapproved). Per Lord Coleridge, C. J., 
in Read v. Joannon, ante, " The words therefore of section 17, 
' Nothing in this Act shall apply to any debentures,' really 
mean, 'Nothing in this Act or in the principal Act shall apply 
to any debentures ' " ; and per Wills, J., " I think that the 



316 



BILLS OF SALE. 



" Covering 
deed " not a 
debenture 
within sect. 
17. 



Priority of 
debentures 
against 

general 
creditors ; 



words [' other incorporated company '] were meant to include 
all incorporated companies of every description. It seems to me, 
therefore, that the only necessity for the registration of a bill of 
sale given by way of security arises from sect. 8 of the Act of 
1882, and that debentures of incorporated companies, if they are 
bills of sale at all, are expressly exempted from that necessity 
by sect. 17 of the Act." See also In re Standard Manufacturing 
Co., [1891] 1 Ch. 627 ; 60 L. J. Ch. 292, in which case Read v. 
Joannon, ante, is followed and approved, and Jenkinson v. The 
Brandley Mining Co., ante, overruled. 

The ordinary debenture trust or covering deed has been held 
not to be a debenture within the meaning of sect. 17 of the Bills 
of Sale Act, 1882. Broehliurst v. Railway Printing and Publish- 
ing Co., W. N. (1884), 70 ; and Ross v. Army and Navy Hotel 
Co., 34 Ch. D. 43 ; 55 L. T. (C. A.) 472. It was also held by 
the Court of Appeal in Ross v. Army and Nary Hotel Co., ante, 
that assuming the covering deed to be void for want of regis- 
tration under the Bills of Sale Acts, the intention to give the 
debenture holders a valid charge, within the meaning of the 
Bills of Sale Act, 1882, s. 17, on the property comprised in that 
deed, was manifest on the face of the debentures, issued by the 
defendant company, read in conjunction with the annexed con- 
dition, and amounted to an equitable contract, which would be 
carried into effect to give a charge upon all the property of the 
company ; and, accordingly, that the chattels, intended to be 
charged with the money due on the original debentures, were 
subject to an equitable charge in favour of the holders of those 
debentures. Per Cotton, L. J. : " Although the covering deed 
is void under that Act [Bills of Sale Act, 1882], there is in the 
debenture itself a contract that the debenture holders shall have 
a charge upon what for present purposes I will call all the 
property of the company." And see on this point, Levy v. 
Abereorris Slate and Slab Co., ante, including the judgment 
therein of Chitty, J. (/). 

A debenture charging all the property present and future of a 
company, although expressed to be intended to operate as a first 
charge upon the property, will be construed to be a general 
floating security, operating as a first charge against the general 



(/) Bo88 v. Army and Navy Hotel Co., ante, was distinguished in Jevikin- 
son\. Brandley Minimi Co., ante, but that case has, it will be observed, 
been since overruled by In re The Standard Manufacturing Co., ante. 



WHAT MAY BE THE SUBJECT OF A BILL OF SALE. 317 

creditors of the company over the property of the company as it 
exists at the time at which the debenture comes into operation. 
Wheatley v. Silkstom and Haigh Moor Coat Co., 29 Ch. J). 715 ; 
54 L. J. Ch. 778. And as to priority of debentures as against against 
execution creditors sec Debenture Holders of John Welsted 8f Co. cre ditors. 
v. Swansea Bun I:, 5 T. L. P. 332 ; Ex parte Australian Invest- 
ment Co., In re Queensland Mercantile Co., 2 ^leg. 304, Xorth, J. ; 
In re Standard Manufacturing Co., [1891] 1 Ch. 627, 640; and 
In re Opera, [1891] 3 Ch. 2G0 ; GO L. J. Ch. 839. 



What may be the Subject of a Bill of Sale. 

See the Bills of Sale Act, 1854, ss. 1 and 7 ; the Bills of Sale 
Act, 1878, ss. 4, 5, and 7 ; and the Bills of Sale Act, 1882, ss. 3, 
5, and 6 (in) ; and as to growing crops under the 1854 Act, 
see Brantom v. Griffits, 2 C. P. D. 212 ; 4G L. J. C. P. 408 ; and 
In re Pldtips, Ex parte The National Mercantile Bank, 1G Ch. D. 
104; 50 L.J. Ch. 231. 

The following may be taken as a brief summary of the Assignments 
general law applicable to after-acquired property, viz. : — At acquired 
law assignments of after-acquired property not having a potential property, 
existence must be perfected by seizure or ratification of such 
assignment on acquisition of such property. But in equity (to 
quote Lord Bacon's maxim on this point) " a conveyance of pro- 
perty to be acquired in futuro operates nothing unless there is 
some new act done by the grantor." Property to be afterwards 
acquired may be the subject-matter of a valid assignment for 
value immediately on such property being acquired and without 
any seizure or ratification, provided — (a) the assignment be 
absolute and not a mere agreement to assign ; (b) such contract 
be one which a Court of Equity would specifically enforce, or, 
in other words, that the effects be sufficiently specified to make 
the assignment operate in equity ; and (c) such property be so 
described as to be capable of being identified. The leading 
cases on this subject are Mope v. Hayley, 25 L. J. Q,. B. 155 ; 
Carr v. Allatt, 27 L. J. Ex. 3S5 ; Holm,/,! v. Marshall, 10 H. L. 
Cas. 191 ; 33 L. J. Ch. 193; 7 L. T. 172; Belding v. Read, 3 
H. & C. 955; 34 L. J. Ex. 212; Reeve v. WMtmore, 33 L. J. 

(m) The Bills of Sale Acts are set out, ante, pp. 292 



318 BILLS OF SALE. 

Ch. 63 (and see in particular, the judgment of Lord Westbury 
in the latter case) ; Leaiham v. Amor, 47 L. J. Q. B. 581 ; 38 
L. T. 785 ; and Lazarus v. Andrade, 5 C. P. D. 318 ; 49 L. J. 
C. P. 847. See also Joseph v. Lyons, 15 Q. B. D. 280 ; 54 L. J. 
Q. B. 1 ; Hallas v. Robinson, 54 L. J. Q. B. 364 ; Collyer v. 
Isaacs, 19 Ch. D. 342 ; 51 L. J. Ch. 14 ; Clement v. Mathews, 
11 Q. B. D. 808 ; 52 L. J. Q. B. 772 ; and Tailby v. The Official 
Receiver, 13 App. Cas. 523 ; 58 L. J. Q. B. (H. L.) 75. 
Bill of sale in So much for the general law. It will be, however, observed 

Tfter-acquired that h Y Sect 5 ° f the Bills ° f Sale Act > 1883 ' " SaVe aS herein- 
property to be after mentioned, a bill of sale (n) shall be void, except as against 

as against the grantor, in respect of any personal chattels, specifically 

grantor. described in the schedule thereto, of which the grantor was not 

the true owner at the time of the execution of the bill of sale." 

But by sect. 6, " Nothing contained in the foregoing section of 

this Act shall render a bill of sale void in respect of any of the 

Exception as following things; (that is to say), (1) Any growing crops 

crops • D ° separately assigned or charged when such crops were actually 

growing at the time when the bill of sale was executed. 

and substi- (2) Any fixtures separately assigned or charged, and any plant, 

tuted fixtures, ,t ■> • i ixjj. i x j. i i • 

& c> ' or trade machinery where such fixtures, plant, or trade machinery 

are used in, attached to, or brought upon any land, farm, factory, 
workshop, shop, house, warehouse, or other place in substitu- 
tion for any of the like fixtures, plant, or trade machinery 
specifically described in the schedule to such bill of sale." 
Referring to sect. 5 of the 1882 Act, Lindley, L. J., says in 
Roberts v. Roberts, (C. A.) 13 Q. B. D. 794 ; 53 L. J. Q. B. 
313 : " The next objection taken was, that the bill of sale was 
void because it does not follow the form in the schedule, 
inasmuch as it comprises after-acquired property ; but, on look- 
ing at the Act, I find a section specifically dealing with that 
subject. If the bill of sale contravenes the provisions of 
sects. 8 and 9, it is void in toto ; but sect. 5, which deals specifi- 
cally with the subject of after-acquired property, enacts that a 
bill of sale shall be void, in respect of the matters dealt with in 
that section, except as against the grantor ; so that there may 



()>) It will be observed that the operation of the Bills of Sale Act, 1882, 
is confined to bills of sale given by way of security for the payment of 
money or, in other words, that it does not affect bills of sale given by 
way of absolute transfer. Sect. 3 of that Act ; and see Swift v. Pannell, 
24 Ch. D. 210; 48 L. T. 351 ; and Casson v. Churchley, 53 L.J. Q. B. 335 ; 
50 L. T. 568. 



FORMALITIES TO BE OBSERVED. 319 

be a bill of sale comprising after-acquired property, which may 
be valid as between the grantor and grantee, and yet be void as 
far as other persons are concerned ; and it seems to me that this 
construction gives to sects. 4 and 5 their proper effect." And 
see the recent and important case bearing on sect. 5 of the 1882 
Act of Tuck v. Southern Counties Deposit Bank, 42 Ch. D. 471 ; 
58 L. J. Ch. 699. See also on this subject, Carpenter v. Been, 
23 Q. B. D. 566 ; W. N. (1889) 186 ; Reeves v. Barlow, 12 
Q. B. D. 436 ; Joseph v. Webb, 1 0. & E. 262 ; In re Clarke, 
Coombe v. Carter, 36 Ch. D. 348 ; 56 L. J. Ch. 981 ; Brown v. 
Bateman, L. R. 2 C. P. 272 ; 36 L. J. C. P. 134 ; Thomas v. 
Searles, [1891] 2 Q. B. 408 ; 60 L. J. Q, B. 722 ; and In re 
Sari, Ex parte Williams, [1892] 2 Q. B. 591 ; 67 L. T. 597 ; 
W. N. (1892) 102. 



Formalities to be observed. 

(1.) Statement of Consideration, 

See the Bills of Sale Act, 1878, sect. 8, and the Bills of Sale 
Act, 1882, sect, 8 (o). 

The consideration for a bill of sale, required to be set forth by Amount 
the Bills of Sale Act, 1878, sect. 8, is the amount of the con- p^ediom 
sideration which has actually passed from the grantee to the grantee to 
grantor. Accordingly, where that is stated, the consideration is b e set forth! 
truly set forth (BTamlyn v. BetteUy, 5 C. P. D. 327 ; 42 L. T. 
373) ; and the statutory requirements will be satisfied if the 
statement of the consideration is substantially accurate. So, if 
it states the true legal effect or the true business effect of the 
transaction, strict literal accuracy of statement is not necessary. 
Ex parte Johnson, In re Chapman, 26 Ch. D. 333 ; 53 L. J. Ch. 
762 ; Hughes v. Little, 18 Q. B. D. 32 ; 55 L. T. 476. Nor 
need the history of the transaction be stated, but only the con- 
sideration for the bill of sale. Ex parte Allam, In re Munday, 
14 Q. B. D. 43. Therefore, the motive for an advance is not 
material in deciding whether the consideration for a bill of sale 
is truly stated. Ex parte Ord, In re Fothergill, 43 L. T. (>■'>:. 
Moreover, whilst the consideration which the 1878 Act requires Not necessary 



(o) The Bills of Sale Acts are set out ante, pp. 292 , ' eeq. 



320 BILLS OF SALE. 

to set out to be stated in the deed is the real consideration as between the 
lateral bar- grantor and the grantee — that which would have been properly 
gain con- stated in the deed independently of the Acts— the Act does not 

nected with m , . . , 

advance. require every collateral bargain or stipulation connected with 

the advance to be set out. Ex parte The National Mercantile 
Bank, In re Haynes, 15 Ch. D. 42 ; and see Thomas v. Searles, 
[1891] 2 Q. B. 408 ; 60 L. J. Q. B. 722. 
Bill of sale Ex parte The National Mercantile Bank, In re Haynes, ante, 

true con- was considered and distinguished in the case of Ex parte The 
sideration Charing Cross Advance and Deposit Bank, In re Parker, 16 
parties. Ch. D. 35; 50 L. J. Ch. 157. In the latter case a duly attested 

and registered bill of sale purported to be executed in considera- 
tion of an advance of 120/., whereas, in fact, 90/. only was 
advanced to the grantor and 30/. retained, part in payment of 
expenses and the rest for interest to be paid on the money 
advanced under the deed, and a receipt for 90/. signed by the 
grantor at the foot of the bill of sale explained the true con- 
sideration. It was held that the true consideration was not set 
out in the bill of sale and that it could not be cured by such 
receipt. Pa- Cotton, L. J. : " The first point to be considered 
is whether the deed, independently of the receipt clause, does 
comply with the terms of the Act requiring the statement of the 
consideration of every bill of sale. In my opinion it does not. 
It states that 120/. was advanced, as meaning actually paid by 
the grantees to the grantor, whereas, in fact, 90/. only was 
advanced to the grantor, and 30/. retained, part in payment of 
expenses, and the rest for interest to be paid on the money 
advanced under the deed. The case of Ex parte The National 
Mercantile Bank has been referred to, as to which, in my opinion, 
there can be no question. But this is not like that case, for 
there the retainer was for the purpose of satisfying a then 
existing debt, independently of the transaction of loan. The 
great distinction between the two cases is this, that here the 
whole liability ' for interest and expenses ' arises out of the 
transaction of loan which the bill of sale completed and 
rendered effectual. There the debt existed independently, and 
would have so remained if the loan secured by the bill had not 
been made. I think that the kind of retainer in this case was 
the very thing aimed at by the Act. The object was to prevent 
the giving of a security for a sum said to be advanced when, in 
fact, a large part was retained by the grantee. Independently, 
therefore, of the receipt clause, there is an end of the case. But 



FORMALITIES TO BE OBSERVED. 321 

it is said that we ought to look at the receipt clause ; and if we 
do so, the true consideration is set forth as required. It does 
state honestly the facts of the case. But we must be bound by 
the Act, and the Act requires the bill of sale to set forth 
the consideration. It is impossible in this case to say that the 
bill of sale sets forth the consideration. The receipt is no part 
of the deed. It is said that it may be used to correct the state- 
ment in the deed, but that is not required by the Act. Here it 
is desired to refer to another document, not to correct an insuffi- 
cient description in the bill of sale, but entirely to contradict a 
statement contained in the bill of sale. The Act requires the 
bill of sale truly to state the consideration. It has not done so, 
and I cannot say that because possibly no harm may be done in 
this particular case we ought not to give effect to the fair con- 
struction of the Act." Per James, L. J. : " In the case of Ex 
parte The National Mercantile Bank, In re Haynes, we came to the 
conclusion that the true consideration was, in fact, set forth, that 
the loan stated was, in fact, a loan of 2,050/., and it did not 
make it the less a loan of that amount, that by a collateral 
agreement 550/., part of it, was to go to pay a debt actually due 
at the time from the grantor to the grantees, and not arising out 
of the then transaction between the parties. In the present 
case there was really an evasion of the provisions of the Act, 
and it is not at all like Ex parte The National Mercantile Bank." 
In other words, to comply with sect. 8 of the 1878 Act a bill of 
sale must show on the face of it the true agreement between the 
parties and must not be dependent for its real effect upon some 
other instrument. And see Sharp v. McHenry, Sharp v. Broicn, 
38 Ch. D. 427 ; 57 L. J. Ch. 961 ; Ex parte Carter, In re 
Threappleton, 12 Ch. D. 908 ; 41 L. T. 37 ; Carrard v. Meek, 43 
L. T. 760 ; Ex parte Challinor, In re Rogers, 16 Ch. D. 260; 51 
L. J. Ch. 476; Ex parte Firth, In re Cowburn, 19 Ch. D. 419; 
51 L. J. Ch. 473; Hamilton v. Chaine, 7 Q. B. D. 1, 319; 50 
L. J. Q. B. 456; In re Spindler, Ex parte Rolph, 19 Ch. D. 98; 
51 L. J. Ch. 88 ; and Ex parte Bolland, In re Roper, 21 Ch. D. 
543; 52 L. J. Ch. 113; as also In re Cann, 13 Q. B. D. 36 
(where Ex parte Firth, ante, is distinguished) ; and Richardson 
v. Harris, 22 Q. B. D. 268 (where Ex parte The National 
Mercantile Bank, ante, is discussed). 

A verbal agreement not to register a bill of sale in considora- Unnecessary 

tion of increased bonus is a mere collateral agreement and forms b 8tateT ^°~ 

o agreement not 

no part of its consideration. It is accordingly unnecessary to to register. 

M. V 



322 BILLS OF SALE. 

state it in the deed. Ex parte Popplewell, In re Storey, 21 
Ch. D. 73 ; 52 L. J. Oh. 39. 

Advance by If the advance is by instalments, the fact may be so stated. 

mf/Sa^d. &> P"rte Berwick, In re Young, ^ L. T. 576; W. N. (1880), _ 
187. See, however, on this point The Credit Co. v. Pott, 6 
Q. B. D. 295 ; 50 L. J. Q. B. 106 ; and In re Mochaday, Ex 
parte Nelson, 55 L. T. 819, affirmed on appeal, 35 "W. R. 264; 
W. N. (1887), 7. 

Bin for 30?., In the case of Davis v. Usher, 12 Q. B. D. 490; 53 L. J. 

diate repay- Q>- B. 422, the plaintiff applied to the defendant for an advance 

ment of part, f ]_g^ t on secur ity of a bill of sale of his (plaintiff's) furniture, 
may be vahd. . J . . . 

and, in order to provide for this and at the same time avoid the 
operation of sect. 12 of the 1882 Bills of Sale Act (whereby, it 
will be observed, bills of sale are void if given for a consideration 
under 30/.), it was mutually agreed that, as one of the terms of 
such loan, 15/. of such 30/. should be repaid on demand and 15/. 
by instalments. A bill of sale embodying such terms was accord- 
ingly granted and the above arrangement was duly carried out. 
It was held, in the absence of evidence that the transaction was 
a sham, that the bill of sale was valid. In this case the facts 
and evidence were by mutual consent set out in a special case ; 
and, referring thereto, Smith, J., in his judgment said : " On 
those undisputed facts we are asked to infer that the bill of sale 
was necessarily for a consideration less than 30/. If the case 
had been tried by a jury much might have been urged to show 
that 15/. only was lent, and the jury would have been asked to 
say whether the transaction was real or not. But in this special 
case we can only draw the inference, which ought to be drawn 
from the facts standing unimpeached, and on that view I come 
to the conclusion that the bill of sale was not given for less than 
30/." 
Consideration In Mayor and Ealda v. Mindlevick, 59 L. T. 400, the bill of 
set forth " sa ^ e purported to be given for a sum of 312/. " then owing " by 
when amount the grantor to the grantee. The material facts were as follows : — 

Tint '< +V.OT1 D ° 

The grantee of the bill of sale, at the request of the grantor, 
signed certain bills of exchange, drawn on the grantor and 
made payable to creditors of the grantor, which were intended 
to secure a composition made by the latter with his creditors. 
These bills were accepted by the grantee, amounting to the sum 
of 126/., being part of the alleged consideration. There was an 
arrangement between the parties that the grantee should be the 
person to pay these bills when due, and in point of fact the bills 



FORMALITIES TO HE OBSERVED. 323 

were afterwards duly paid by the grantee as they became due. 

It was admitted that the transaction was a bond fide one, and 

that there was no intention to mislead. At the time of the 

execution of the bill of sale the bills were not then due and the 

grantee had not paid them. It was held, that the sum of 126/., 

the amount of the bills accepted by the grantee of the bill of 

sale, was not " then owing " by the grantor to the grantee, and 

that, therefore, the consideration was not " truly set forth " and 

that consequently the bill of sale was bad. And see as to current 

bills, Cochrane v. Moore, 25 Q. B. D. 57 ; 59 L. J. Q. 13. 377. 

See, moreover, as to " statement of consideration," Counsell v. 

London and Westminster Loan and Discount Co., 19 Q. B. D. 

512 ; 56 L. J. Q. B. 622 ; as also the judgment of Brett, 

M. R, in Robert* v. Roberts, (0. A.) 13 Q. B. 794 ; 53 L. J. 

Q. B. 313. 

An untrue statement of the consideration is not a deviation Untrue state- 

from the form in the schedule to the Act of 1882, and therefore ^deration not 

does not render the bill wholly void under sect. 9, but only in & deviation 

• i to from statutory 

respect of the personal chattels comprised therein under sect. 8. f or m. 
Eeseltine v. Simmons, [1892] 2 Q. B. 547 ; W. N. (1892) 137. 



(2.) Description of Chattels.. 

See the Bills of Sale Act, 1882, sect. 4, ante, p. 302. 

A schedule to a bill of sale which contained the description Personal 
" household furniture and effects, implements of husbandry " ^specifically 
has been held insufficient to convey the goods so described for described in 
the schedule must contain such an inventory as is usual in 
business, separating the classes of articles comprised in it one 
from the other, although it need not contain a detailed descrip- 
tion of each article. Roberts v. Roberts, (C. A.) 13 Q. B. D. 
794; 53 L. J. Q. B. 313. Per Brett, M. R. : "The [1882] 
Act was passed with the intention of meeting a not uncommon 
mischief which arose upon well known instruments, and the 
legislature intended to put an end to the evils which arose from 
those general descriptions which specified no particular articles ; 
so that it seems to me a specific description must mean such an 
inventory as is mentioned in the section [sect. 4], and as is well 
known in business. Such an inventory would contain a specific 
description of each class of goods mentioned in it, although not 
a detailed description of each article contained in it. What the 
statute requires is that amount of separation from one class of 

y2 



324 



BILLS OF SALE. 

articles from another, which any business inventory would give ; 
so that any schedule which does not describe the things con- 
tained in it in such a way must be considered to be an unsatis- 
factory and insufficient schedule." And see Witt v. Banner, 
20 Q. B. D. (C. A.) 114; 56 L. J. Q. B. 550, in which case 
Wills, J., in referring to the following description, " Four 
hundred and fifty oil paintings in gilt frames, three hundred 
paintings unframed, twenty water-colours unf rained, and twenty 
gilt frames," says : " The word ' specifically ' was certainly in- 
tended to mean something sufficiently specific to enable the 
parties to a bill of sale to identify the articles assigned, and to 
avoid disputes as to what were and what were not included in 
the assignment. The construction of the term ' specific ' must, 
of course, be reasonable, neither too rigid nor too lax. I do 
not intend to attempt to define what description will satisfy the 
term ; but for the purpose of the present case, I am of opinion 
that the description is not sufficient, and, if allowed to stand, 
would lead to the retention of all the mischief and inconvenience 
the Act of Parliament was intended to do away with. How 
can it be contended that in accordance with the present descrip- 
tion it can be seen or known to what articles it applies ? The 
state of things is by no means the same here as that which 
existed in Roberts v. Roberts \_ante~\, for this is an assignment of 
part only of a picture-dealer's stock ; and what ingenuity can 
say which the 450 pictures may be, when perhaps there are a 
thousand more on the premises ? How can they be identified?" 
(This decision was affirmed by the Court of Appeal, 20 Q,. B. D. 
114.) Moreover, a description of chattels as "21 milch-cows" 
has been held not to be a sufficient specific description in a bill 
of sale, although given by a dairyman, to satisfy sect. 4 of the 
Bills of Sale Act, 1882 {Carpenter v. Been, 23 Q. B. D. 566; 
Witt v. Banner, ante, distinguished), although in Hiekley v. 
Greenwood, 25 Q. B. D. 277 ; 59 L. J. Q. B. 413, the description 
of the assigned chattels as " Roan horse, drummer, brown mare 
and foal ; three rade carts " was held sufficient in the absence of 
evidence of facts showing that the description was not specific 
( Witt v. Banner, ante, and Carpenter v. Been, ante, distinguished). 
Again, in the recent case of Davidson v. Carlton Bank, [1893] 
1 Q. B. 82 ; 41 W. R. 132 (C. A.), a bill of sale was given in 
respect of furniture and other chattels. The schedule annexed 
to the bill specified the furniture and chattels in each room 
of the house. Under the heading " study " was the item 



FORMALITIES TO BE OBSERVED. 325 

" eighteen hundred books as per catalogue." No evidence was 
given that there was any difficulty in identifying the books. 
It was held, that the books were specifically described in the 
schedule within sect. 4 of the 1882 Act. 

But the 1882 Act does not require a description of the place All the as- 
where the assigned goods are to be given in the bill of sale. JXmostbe 
Ex parte Hi//, In re Lane, 17 Q,. B. D. 74. It is an essential described in 
feature of the statutory form of bills of sale that all the chattels 
assigned should be described in the schedule. Accordingly, a 
bill of sale, given by way of security for the payment of money, 
which purported to assign certain chattels specifically described 
in the schedule thereto " together with all other chattels the 
property of the grantor then in or about certain premises and 
also all chattels which might during the continuance of the 
security be in or about the same or any other premises of the 
grantor," was held void under the Act of 1882. Thomas v. 
Kelly, 13 App. Cas. 506 ; 58 L. J. Q. B. (H. L.) 66. 

(3) Defeasance, 8fc. 

See the BiUs of Sale Act, 1854, s. 2, the Bills of Sale Act, 
1878, s. 10, sub-s. 3, the Bills of Sale Act, 1882, s. 9 (p), and 
the statutory form in the schedule to the latter Act, ante, -p. 307. 
See also under this head, Robinson v. Colling wood, 34 L. J. C. P. 
18; Ex parte Southam, In re Southam, L. E. 17 Eq. 578; 43 
L. J. Bank. 39; Ex parte Collins, In re Lees, L. E. 10 Ch. 367; 
44 L. J. Bank. 78; Ex parte Pqpplewell, In re Storey, 21 Ch. D. 
73 ; 52 L. J. Ch. 39 ; Carpenter v. Been, 23 Q. B. D. 566 ; \V. 
N. (1889) 186; Thomas v. Searles, [1891] 2 Q. B. 408; 60 
L. J. Q. B. 722; and Hesettine v. Simmons, [1892] 2 Q. B. 
547 ; 62 L. J. Q. B. 5 ; W. N. (1892) C. A. 137. 

(4) Form. 

See the Bills of Sale Act, 1882, s. 9 (q), ante, p. 304, and the 
form in the schedule to that Act, ante, p. 307. 

It will be seen that prior to the 1882 Act no special form of Bill of sale 
words was requisite to constitute a bill of sale, but that by sect. ]^^ c "^ ess 



(}>) The Bills of Sale Acts are set out anh . pp. 292 et sea. 

(7) By the Hills of Sale Act, 1890 (53 & 54 Vict. c. 53), s. 1. letterfl of 

liv])(itliic;ition of imported goods are exempted from the operation of 
sect. 9 of the 1882 Act. 



326 



BILLS OF SALE. 



accordance 
"with form in 
schedule to 
1882 Act. 



Sufficient if 
bill of sale is 
substantially 
lite the 

statutory- 
form. 



9 of that Act, " A bill of sale made or given by way of security 
for the payment of money by the grantor thereof shall be void 
unless made in accordance with the form in the schedule to this 
Act annexed." Per Brett, M. E., in Davis v. Burton, 11 Q. B. 
D. 537 ; 52 L. J. Q. B. 636 : " It is clear to me that this Act 
of Parliament [Bills of Sale Act, 1882] is drawn as a benevolent 
Act towards borrowers and as a stringent Act for the holders of 
bills of sale. It seems to me that it is the intention of sect. 9, 
which refers to the model bill of sale given in the schedule, that 
a bill of sale should have, as near as may be, the simplicity of 
that model bill of sale, so that the borrower of money may 
easily see how far he is placing a burden upon himself ; and also 
in order that a creditor of the borrower where a bill of sale has 
been registered may be able to see, when he comes to look at 
the bill of sale, how far he may trust the proposed borrower. 
The bill of sale is, therefore, to be registered in a sufficiently 
easy form for such creditor to come to a conclusion as to its 
meaning without being obliged to take advice. . . . The 
legislature, in order to carry out that view, has introduced 
sect. 9 into this Act of Parliament, in addition to other matters 
which have been introduced, as, for instance, by sect. 7. In 
order to carry out the simplicity of the bill of sale, and of the 
transaction — because, if the bill of sale is to be simple, the 
transaction also must be simple — sect. 9 provides that every bill 
of sale made or given by way of security for the payment of 
money by the grantor thereof shall be void — that is, void as 
against all the world, including the grantor — unless made in 
accordance with the form given in the schedule to the Act. I 
do not think that this means that it shall be void unless made 
in every particular in the form given in the schedule ; but I 
take it that the word ' form ' is merely a word of reference to that 
given in the schedule, and that the meaning is that, unless the 
bill of sale is made in accordance with the model, it would differ 
from the form in the schedule. It was suggested on behalf of 
the claimant that everything which was not inconsistent with 
that form would be in accordance with it. But that is an argu- 
ment which I am unable to accept ; for the words ' in accordance 
with the form ' must mean that the bill of sale is in form to be 
substantially like the one given in the schedule. It must not, 
by means of any contradiction or addition, be made substan- 
tially different from that form. A bill of sale may be so over- 
laid with additions as to make it unlike the form. The principle 



FORMALITIES TO BE OBSERVED. 



327 



aimed at by sect. 9 was that the recorded transaction should be as 
simple as the transaction in the model bill of sale, and that the 
bill of sale itself should also be as simple as the model bill of 
sale." Moreover, although the meaning of a bill of sale may 
be ambiguous, yet if, when its true construction is arrived at, it 
does not differ materially from the statutory form, it will not be 
held void by reason of its ambiguity. Ha&lewood v. Consolidated 
Credit Co., 25 Q. B. D. 555 ; 60 L. J. Q. B. 12. 

\Yhere it is clear on the face of a bill of sale and without any Variation of 
evidence outside that document that the person signing it as tw0 at t e sta- 
attestinp; witness in two attestation clauses is one and the same f ' on olau ses 

° .... does not 

person, although his name, address, and description are given in avoid bill, 
one clause, and his name only in the other, the bill of sale is not 
void under sect. 9 of the Bills of Sale Act, 1882, by reason of 
its not being in accordance with the statutory form. Bird v. 
Dairy, [1891] 1 Q. B. 29 ; 60 L. J. Q. B. 8. 

It being sufficient, as already indicated, if a bill of sale be Exact words 
substantially like the statutory form, it need not be drawn in form need not 
the exact words of the schedule, so that, for example, the mere be followe<i - 
omission of the words " by way of security " from the operative 
part of a bill of sale is not material. Per Brett, M. R., in 
Roberts v. Roberts, 13 Q. B. D. 794 ; 53 L. J. Q. B. 313. (The 
reader is advised to read this portion of Brett, M. R.'s judgment 
in that case.) 

The bill of sale in the following case was held to be void on Provision for 
the ground (inter alia) of its not being in substantial accordance capitalized 
with the statutory form through its providing for the payment lnte -^ st bm 
of capitalized interest which, although stated to be at the rate of 
60/. per cent., might, it was considered, amount to much more, if 
there were a seizure of the goods consequent on any violation of 
the covenants. Davis v. Burton, 11 Q. B. D. 537 ; 52 L. J. 
Q. B. 636 ; and see Myers v. Elliot, (C. A.) 16 Q. B. D. 526 ; 
55 L. J. Q. B. 233. In the latter case Lopes, L. J., said that 
" neither capitalized interest nor bonus can be reserved in a bill 
of sale, if that document is not to be avoided under the Act." 
See also Lumley v. Simmon*, 34 Ch. D. 698; 56 L. T. 134; and 
Roe v. Mutual Loan Fund, 19 Q. B. D. 347 ; 56 L. T. 631 ; 
and, as to capitalized interest, Thorp v. Cregeen, 55 L. J. Q. B. 
80, a decision which was, however, questioned in Myers v. Elliot, 
ante. 

With regard to interest, the following mode of payment is Statutory 



328 



BILLS OF SALE. 



form does 
not require 
payments of 
interest to be 
of equal 
amounts. 



Equality of 
instalments 
not obliga- 
tory. 



Bill not in 
accordance 
with statutory 
form where 
no rate of 
interest 
specified. 



Bill void 
when date of 
payment is 
uncertain. 



not essential in order to comply with the statutory form, viz. : — 
that the whole principal and interest must be ascertained once 
and for all, and the periodical sum fixed which will satisfy both 
principal and interest by equal sums, the relative proportion of 
principal and interest varying in each payment, the principal 
increasing as the interest diminishes. The payment is to be by 
equal instalments of the principal together with the interest due 
at the respective times of payment of the instalments of prin- 
cipal. Goldstrom v. Tallerman, 18 Q. B. D. 1 ; 55 L. T. 866. 
And see Edwards v. Marston, [1891] 1 Q. B. 225 ; 60 L. J. 
Q. B. 202 (where Goldstrom v. Tallerman, ante, is distinguished). 
It has, moreover, been decided that the liberty given by the 
statutory form to insert stipulated times of payment other than 
those suggested by the form excludes the necessity of the pay- 
ments being by equal instalments, and that the provision in the 
statutory form for equality of the instalments is therefore not 
obligatory but subject to variation. In re Cleaver, Ex parte 
Rawlings, 18 Q. B. D. 489 ; 56 L. J. Q. B. 197. 

In Blankensteinv. Robertson, 24 Q. B. D. 543; 59 L. J. Q. B. 
315, a bill of sale purported to assign the chattels specified in 
the schedule as security for the payment of a loan of 50/. " and 
interest thereon at the rate of 171. 10s. for three years," the 
grantor covenanting to pay the grantee the principal together 
with the interest then due in thirty-six equal instalments of 
1/. 17s. 6<7.," commencing from the date of the instrument. It 
was held, that the bill of sale was not in accordance with the 
statutory form as it did not specify any rate of interest as 
chargeable for the loan. And see in regard to assessment of 
interest, Haslewood v. Consolidated Credit Co., 25 Q,. B. D. 555 ; 
60 L. J. Q. B. 12 ; and In re Heseltine, Woodward v. Ilescltine, 
[1891] 1 Ch. 464 ; reversed by the House of Lords sub noni. 
Simmons v. Woodward, 61 L. J. Ch. 252 ; 66 L. T. 534. 

The bill of sale in the undermentioned case was held to be 
void on the following grounds, viz. : (a) its giving a power to 
seize on default in payment on demand and not in accordance 
with the requirements of sect. 7 and the schedule of the 1882 
Act at a time therein provided or stipulated for payment ; and 
(b) because of the power of sale arising forthwith on the 
happening of any of the contingencies mentioned and not being 
limited to the expiration of five clear days from the day of 
seizure as required by sect. 13. Iletherinyton v. Groome, 13 



FORMALITIES TO BE OBSERVED. 329 

Q. B. D. 789 ; 53 L. J. Q. B. 576. Bills of sale were held 
void on like grounds in the cases of Melville v. Stringer, 12 
Q.B. D. 132; 53 L. J. Q. B. 482; Sibley v. Higgs, 15 Q. B. D. 
619 ; 54 L. J. Q. B. 525 ; Clemson v. Toionsend, 1 C. & E. 418; 
Mackay v. Merritt, 34 W. E. 433 ; and Fumivall v. Hudson, 
[1893] 1 Ch. 335; 62 L. J. Ch. 178; 68 L. T. 378. See also 
BTughes v. Utile, 17 Q. B. D. 204; 18 Q. B. D. 32; 56 L. T. 
477, where it was held that the fact of a payment being uncer- 
tain because of its depending upon a contingency, the happen- 
ing of which is uncertain, avoids the bill of sale as not being in 
accordance with the statutory form. Per Lord Esher, M. E,., 
"Manisty, J., in his judgment in the Divisional Court seems to 
distinguish this case from those other cases where payment was 
to be upon demand ; but, with great deference to him, I think 
he has not observed this, that the bill of sale was held bad in 
those cases because payment was to be made upon demand, that 
is, upon a time wholly uncertain, and therefore, not in accord- 
ance with the form ; that here, although the payment is not to 
be made upon demand, yet it is to be made upon a contingency 
which may or may not happen, and which makes the time of 
payment just as uncertain as it was in those cases in which it 
was expressed to be on demand. I think the principle applies 
here as there, the principle being that the bill of sale cannot be 
held to be in accordance with the form in the schedule if by any 
reason the day of payment is uncertain. In those cases it was 
uncertain because payment was to be on demand ; here it is 
uncertain because it depends upon a contingency the happen- 
ing of which is uncertain." And see on this point In re 
Coton, Ex parte Payne, 56 L. T. 571 ; Davis v. Barton, 11 
Q. B. D. 537 ; 52 L. J. Q. B. 636 ; Bianchi v. Offbrd, 17 
Q. B. D. 484 ; 55 L. J. Q. B. 486 (the judgment of Bowen, 
L. J., in which latter case is valuable). 

The bill of sale in the following case was given to secure Extent of 
payment of 30/. by instalments with interest at 60/. per cent, fff >re !?" >n 
per annum and contained covenants by the grantor {inter alia) maintenance 
to preserve and keep the assigned chattels whole, safe, and of the's!^',!- ' 
uninjured (reasonable wear and tear only excepted), and during rit 7-" 
the continuance of such security to replace such of them as 
should be worn out by other articles of equal value, so as 
thereby to maintain the original value of the chattels. The 
grantee was moreover empowered to test the condition of the 
assigned chattels, and, if necessary, require them to be repaired 



330 BILLS OF SALE. 

in the ordinary way, in certain events to seize and sell the 
chattels and retain out of the proceeds (inter alia) all costs, 
charges, and expenses incurred " in discharging any distress, 
execution, or incumbrance on the goods " and " in the carriage, 
removal, warehousing, valuing, or sale thereof." It was held, 
that the bill of sale was made substantially in accordance with 
the statutory form, the above-mentioned provisions being covered 
by the expression " or otherwise for the maintenance or defeas- 
ance of the security," and that accordingly the bill of sale was a 
good one. The Consolidated Credit and Mortgage Corporation v. 
Gosneg, 16 Q. B. D. 24 ; 55 L. J. Q. B. 61. 

Moreover, where, as in the following case, the bill of sale 
contained covenants by the grantor that he (a) would not 
remove the assigned chattels or any of them from the premises 
where they then were, without the grantees' written consent, 

(b) would not permit or suffer such chattels, or any part thereof, 
to be destroyed or injured or to deteriorate in a greater degree 
than they would deteriorate by reasonable use and wear thereof, 

(c) would, whenever any of such chattels were destroyed, injured, 
or deteriorated, forthwith replace, repair, and make good the 
same, (d) would pay all rents, rates, taxes, and interest on 
mortgages payable in respect of the premises where the assigned 
chattels then were or might be removed to with the grantees' 
consent, and (e) would, on demand in writing, produce and 
show to the grantees his last receipt or receipts for rent, rates, 
and taxes in respect of such premises ; whilst, in case default 
should be made by the grantor in performance of any of his 
above covenants (and all of which covenants were thereby declared 
and agreed to be necessary for the maintenance of the security 
thereby created), the grantees were empowered immediately to 
seize and, after five days, to sell the mortgaged chattels, it was 
held (reversing the judgment of Bowen, L. J.), that, whilst the 
fact that the parties had agreed that such covenant was neces- 
sary for the maintenance of the security did not make it so, the 
covenant to replace and repair articles destroyed, injured, or 
deteriorated, was necessary for the maintenance of the security 
and that accordingly it did not purport to give a power, on 
default, to seize and take possession for a cause not being 
one of those enumerated in the 7th section of the Act ; for 
which reason the bill of sale was not vitiated by such covenant. 
Per Sir James Hannen : " Both the grantor's above covenant 
not to remove the goods without the grantees' consent and the 



FORMALITIES TO BE OBSERVED. 331 

covenant to on demand in writing produce and show to the 
grantees the grantor's last receipt for rent, rates, and taxes were 
necessary for the maintenance of the security." Furber v. Cobb, 
18 Q. B. D. 494 ; 5G L. J. Q. B. 273 ; 56 L. T. 689 ; and see 
Turner v. Calpaa, 58 L. T. 340 ; 36 TV. B. 278 ; and In re 
Paxton, Ex parte Pope, 60 L. T. 428. 

A provision empowering the grantee to take the goods at his 
valuation is not, however, a provision for the maintenance of the 
security, hut goes far beyond any proper or legitimate main- 
tenance and vitiates the hill of sale. Lyon v. Morris, 19 Q. B. 
D. 139 ; 56 L. J. Q. B. 378 ; 56 L. T. 915. 

Again, the hill of sale in the following case provided that the 
grantor would insure and keep insured the chattels therein com- 
prised against loss or damage by fire in a certain sum, and that, 
in default of his so doing, the grantee might insure the same, 
and that moneys expended for such purpose, together with 
interest thereon at the rate of 5/. per cent, per annum from the 
date of the same having been expended, should on demand be 
repaid by the grantor, and until such repayment should be a 
charge upon all the premises thereby mortgaged. It was held, 
that such provision did not contravene the statutory form. 
(ffetherington v. Groome, 13 Q. B. D. 789 ; 53 L. J. Q. B. 576, 
distinguished). In re Barber, Ex parte Stanford, 17 Q. B. D. 
259 ; 55 L. J. Q. B. 339. 

Moreover, where a bill of sale gives the grantee, in addition 
to a power to keep on foot the insurance, power to pay all rent, 
rates, taxes, charges, assessments, and outgoings which may 
become due and payable in respect of the premises in which the 
mortgaged chattels are, and it is provided that thereupon all 
such payments together with interest thereon at a specified rate 
shall be a charge upon such chattels, such provisions have been 
held (on the authority of In re Barber, Ex parte Stanford, ante) 
to be justified by the power given by the statutory form to 
insert terms as to insurance, payment of rent, or otherwise, 
which the parties may agree to for the maintenance or defeas- 
ance of the security. Goldstrom v. Tallerman, 18 Q. B. D. 1 ; 
55 L. T. 866 ; but see Ike Peal and Personal Advance Co. v. 
Clears, 20 Q. B. D. 304 ; 57 L. J. Q. B. 164 (where Bianchi v. 
Offord, ante, followed, and Gohhtrom v. Tallerman and In re 
Barber, Ex parte Stanford, ante, distinguished). See also Topley 
v. Corsbie, 20 Q. B. L>. 350; 57 L. J. Q. B. 271 ; Macey v, 
Gilbert, 57 L. J. Q. B. 461; as also the recent case of Briggs v. 



332 BILLS OF SALE. 

Pike, (C. A.) 61 L. J. Q. B. 418 (where The Real and Personal 
Advance Co. v. Clears, ante, distinguished.) And as to main- 
tenance of the security in connection with agreement to pay 
insurance, see Hammond v. Hocking, 12 Q. B. D. 291 ; and 
Furber v. Abrey, 1 0. & E. 186. 

A clause in a bill of sale, empowering the grantee " to sell the 
goods by private treaty or public auction on or off the premises," 
has been held to be a clause " necessary for the maintenance of 
the security" within the meaning of the statutory form. Bourne 
v. Wall, 64 L. T. 530 ; 39 W. E. 510. 

In the undermentioned case a bill of sale to secure the pay- 
ment of a loan contained the following provisions : — first, that 
the grantor should pay the interest on mortgages in respect of 
premises where the assigned chattels then were or might be 
removed to ; and second, that upon payment of the loan the bill 
of sale, and any documents signed in relation to the loan, should 
remain in the custody and be the property of the grantee. It 
was held, that the bill of sale was not in accordance with the 
statutory form, and consequently void by reason of each of these 
provisions ; for the first was wide enough to include mortgages 
under which there was no power of distress by which the 
assigned chattels might be affected, and was so far not for the 
maintenance of the security ; and the second interfered with the 
legal right of the grantor to the possession of the bill of sale and 
documents, and was not immaterial, and therefore altered the 
legal effect of the form. Watson v. Strickland, 19 Q. B. D. 391; 
56 L. J. Q. B. 594. 

To return to In re Barber, Ex parte Stanford, ante, by the bill 
of sale in that case the grantor " as beneficial owner " assigned 
certain chattels to the grantee as security for payment of certain 
moneys. It was held, that the insertion of the words " as bene- 
ficial owner " has the effect of introducing into the statutory 
form covenants not to be found in it, nor authorized as terms 
for the maintenance of the security, and at variance with the 
statute of 1882, and consequently that the bill of sale in 
question was void under the 9th section of that Act. (The 
reader is strongly advised to read the entire judgment of 
Bowen, L. J., in this case.) 

A covenant in a bill of sale by the grantor for further assur- 
ance by himself, and any other person or persons claiming by 
or through him, is not in contravention of the statutory form, 
and does not therefore invalidate the bill of sale. In re Cleaver, 



FORMALITIES TO BE OBSERVED. 



333 



Ex parte Rawlings, 18 Q. B. D. 489 ; 56 L. J. Q. B. 197. Per 
Fry, L. J. : "It was contended that the covenant for farther 
assurance at the cost of the mortgagor was in excess of the 
statutory form. But in our opinion such a covenant was one 
for the maintenance of the security, and consequently free from 
objection." And see Bodocanachi v. Milburn, 18 Q. B. D. 07 ; 
56 L. T. 594. 

In Furberv. Cobb, 18 Q. B. D. 494; 56 L. J. Q. B. 27:!, 
there was a declaration in the hill of sale of the trusts of the 
sale moneys enabling the grantees, who were co-partners as 
auctioneers, to pay themselves the costs, charges, and expenses 
of and attending the sale, including therein " their full charges 
and commission as auctioneers, as if they were selling on behalf 
of the grantor," coupled with the ordinary proviso at the end 
against the grantees' seizure or taking possession of the assigned 
chattels for any cause other than those specified in sect. 7 of the 
Bills of Sale Act, 1882. It was held that the bill of sale was 
vitiated by the right conferred on the grantees to reimburse 
themselves out of the sale moneys their full charges and com- 
mission as auctioneers, having regard to the same being a 
provision for securing to the grantees a larger advantage than 
they would have had if the statutory form had been followed, it 
not being a provision for the maintenance of the security, but a 
provision for obtaining for the grantees, in addition to that 
security, the trade profits as auctioneers on the sale. 

The grantor in the following case agreed (inter alia) to perform Nbn-disclo- 
the covenants and stipulations contained in the therein recited of Vale of 
indenture, but such covenants and stipulations did not appear covenants in 
from the bill of sale itself, and it was held that the bill of sale ture avoids 
was invalid, having regard to the necessity of a bill of sale being bl11- 
in accordance with the statutory form, and, in particular, to the 
impracticability of anyone in this case seeing what were the 
covenants and stipulations in question. Lee v. Barnes, 17 
Q. B. D. 77. 

A provision " that the power of sale conferred upon mortgagees Proviso 
by the Conveyancing and Law of Property Act, 1881, shall be ^."jotf 
exercised by them in every respect as if the 20th section of the Conveyancing 
said Act had not been enacted, and that the mortgagees shall does not avoid 
stand possessed of the proceeds of any sale made by them, upon 
trust to retain thereout the said principal sum, or so much thereof 
as for the time being remains unpaid, and the interest then due, 
together with all costs, charges, payments, and expenses incurred, 



bill. 



334 BILLS OF SALE. 

made, or sustained by the mortgagees in or about entering upon 
the said premises, and in discharging any distress, execution, or 
other incumbrance on the said fixtures, chattels, or things, or any 
of them, and seizing, taking, retaining, and keeping possession 
thereof, and in or about the carriage, removal, warehousing, 
valuing, or sale (including the cost of inventories, catalogues, or 
other advertising) thereof, or any part thereof," together with 
the ordinary proviso against seizure or possession of the assigned 
chattels for any other cause than those specified in the 7th section 
of the 1882 Bills of Sale Act, was held by Lord Esher, M. R., 
Cotton,- Lindley, Bowen, and Lopes, L. JJ. (Fry, L. J., dis- 
senting), not to render the bill of sale void under sect. 9 of the 
1882 Act as not being in accordance with the statutory form. 
Ex parte Official Receiver, In re Morritt, 18 Q. B. D. (C. A.) 222 ; 
56 L. J. Q. B. 139. See also Watkins v. Evans, 18 Q. B. D. 
386 ; 56 L. J. Q. B. 200 ; and Calvert v. Thomas, 19 Q. B. D. 
204; 56 L. J. Q. B. 470; and as to provision for exercise of 
power of sale under the Conveyancing and Law of Property Act, 
1881, see Ex parte Bentley, In re Morritt, 34 W. R. 579. More- 
over, the power of sale, which according to the decision of the 
majority of the Court of Appeal in Ex parte Official Receiver, In 
re Morritt, ante, arises on the exercise of the power to seize, 
carries with it implied trusts of the sale moneys, and, therefore, 
express trusts thereof, which are reasonable and proper under 
the circumstances of the case, do not vitiate such bill of sale. 
Lumley v. Simmons, 56 L. J. Ch. 329. 
Proviso that A bill of sale, which has an addition in the shape of a pro- 
found to X ' vision to the effect that a purchaser need not take steps to satisfy 
inquire as to himself that default has been made by the grantor, is not in 

default avoids . . . 

bill. accordance with the statutory form, and is consequently void. 

Parsons v. Ilargrcarcs, 55 L. J. Q,. B. 408 (see judgment of 

Lord Coleridge, L. C. J., in this case). This decision was 

followed by the Court of Appeal in the subsequent similar case 

of Blaiberg v. Beckett, 18 Q. B. D. 96 ; 56 L. J. Q. B. 35 ; 55 

L. T. 876. 

Proviso A bill of sale contained a proviso giving power to the grantees 

r.) seize larger to seize the chattels granted by the instrument if the "mort- 

than statu- gagors should take the benefit of any Bankruptcy Act." The 

tory power ° ° J L J 

avoids bill. Bankruptcy Act, 1883, enables a person not only to become a 
bankrupt but to effect a composition with his creditors. It was 
held, that the bill of sale was bad, as it conferred upon the 
grantees the power to seize on the grantors taking the benefit of 



FORMALITIES TO BE OBSERVED. 335 

any Bankruptcy Act, which was a larger power than the 
statutory power to seize conferred by the Bills of Sale Act, 
1882, which is limited to the event of a grantor becoming a 
bankrupt. Gilroy v. Bowey, 59 L. T. 223. 

As already intimated, it is an essential feature of the statutory Statutory 
form that all the chattels assigned should be described in the fouled 
schedule. Accordingly, a bill of sale given by way of security where 
for the payment of money, which purported to assign certain specifically 
chattels specifically described in the schedule thereto, together descnlj ed ; 
with all other chattels the property of the grantor then in or 
about certain premises, and also all chattels which might during 
the continuance of the security be in or about the same or any 
other premises of the grantor, has been held void in toto under 
the 1882 Act for non-compliance with the statutory form in that 
respect. Thomas v. Kelly, 13 App. Cas. 506; 58 L. J. Q. B. 
75 ; and see Sadden, Best and Co. v. Oppenheim, 60 L. T. 962. 
"Where the schedule comprises chattels real as well as personal nor -where 

son on i lift 

chattels, the bill of sale is not made in accordance with the contains 
statutory form. Cochrane v. EntvMle, 25 Q. B. D. 116 ; 59 chattels real. 
L. J. Q. B. 418. 

As already intimated {>•), an untrue statement of the con- Untrue state- 
sideration is not a deviation from the statutory form, and there- sideration not 
fore does not render the bill of sale wholly void under sect. 9 of * deviation 

. oi tit from etatu- 

the 1 882 Act, but only m respect of the personal chattels com- tory form ; 
prised therein under sect. 8 ; and a collateral agreement that the nor non- 
bill of sale shall not be made available till certain other securities stipulation as 

are exhausted is not a term for the "defeasance" of the security, t° exhausting 

. , other securi- 

and the non-msertion of such an agreement does not make the ties. 

bill void under sect. 9 as not being in accordance with the 

statutory form. Heseltine v. Simmons, [1892] 2 Q. B. 547 ; 

(C. A.) W. N. (1892) 137. 

Improper conditions or covenants in a bill of sale are not Improper 

cured by a provision (similar to that in the statutory form) that oJJnot be 

the mortgaged chattels shall not be liable to seizure, or to be cured D F 

taken possession of by the grantee, for any cause other than corporating 

those expressed in sect. 7 of the 1882 Bills of Sale Act. Ex parte sect- ' ■ 

Pearce, In re Williams, confirmed on appeal, 25 Ch. D. 656 ; 53 

L. J. Ch. 500. 



(»•) Under " Statement of Consideration," ante, p. ol!>, and the cited 

eases under " Defeasance," ante, p. 32 '). 



336 



BILLS OF SALE. 



How far bill A bill of sale not in accordance with the statutory form is 

oi sale not m • i ; -n • • i 

accordance void to all intents and purposes, including therefore the covenant 
lory form 11 " for P a y ment therein contained. Davies v. Bees, 17 Q. B. D. 
void. 408 ; 55 L. J. Q. B. 363 ; and see Thomas v. Kelly, ante. But 

the fact of a stipulation in a promissory note identical in dates 
and figures with a bill of sale for which it is given as collateral 
security rendering the bill of sale void does not make the pro- 
missory note invalid. The Monetary Advance Co. v. Cater, 20 
Q. B. D. 785 ; 57 L. J. Q. B. 463. Moreover, a deed compris- 
ing personal chattels, which is void as a bill of sale, may be 
valid as to other property comprised in it. In re Burdett, Ex 
parte Byrne, 20 Q. B. D. 310 ; 57 L. J. Q. B. 263, where Davies 
v. Bees was explained and distinguished. 

" It is very difficult to find any certain path among the conflict- 
ing data of the Court of Appeal, but as far as I am able to under- 
stand those dicta two propositions have been laid down. In the 
first place it is laid down that if any provision is inserted in a 
bill of sale which substantially changes the position of the 
parties from that which it would have been if the bill of sale 
had been drawn strictly in accordance with the form in the 
schedule, that is sufficient to invalidate the bill of sale. Secondly, 
such a provision none the less invalidates a bill of sale if a 
clause is inserted at the end to the effect that if there be any- 
thing in the bill of sale contrary to the provision of the Act it 
shall have no effect, and the bill of sale shall be deemed to be 
rightly drawn. These two propositions have not been ques- 
tioned by any of the judges of the Court of Appeal. It has 
also been further decided by all the judges, with the exception of 
Fry, L. J., that if a bill of sale contains a bare or naked cove- 
nant which possibly might give a right of action, but so far as 
the bill of sale is concerned does not and cannot alter the rights 
of the parties, that may be treated as superfluous, or, in other 
words, that where a provision is inserted in a bill of sale which, 
construed by the light of the Bills of Sale Act is excessive, and 
that provision is coupled with a right to seize, the bill of sale is 
invalid, but if it is not coupled with a power to seize, then it is 
to be rejected on the ground that super ft ua non nocent, and the 
bill of sale is valid. These are the distinct propositions which, 
as far as I am able to understand, have been hitherto laid down 
on the construction of this Act." Per Lord Coleridge, L. C. J., 
in Barr v. Kingsford, 56 L. T. 861. 



FORMALITIES TO BE OBSERVED. 337 

(5) Attending Execution. 

(a) Description of Parties. 

See the Bills of Sale Act, 1854, s. 1, and the Bills of Sale Act, 
1878, s. 10, sub-s. 2(s). 

The object of the 1854 Act was to give the creditor a true idea Description 
of the grantor's position in life, and therefore a misdescription ° gran or " 
or absence of a true description in regard to his occupation was 
substantial and invalidated the transaction. Alien v. Thompson, 
1 H. & N. 15 ; 25 L. J. Ex. 249 ; and see Corbett v. Roice, 25 
\V. 11. 59. And where there is an error in the name of the 
grantor of a bill of sale the test is : — Is the mischief one that is 
calculated to deceive and has deceived creditors ? In re Wood, 
Ex parte Jlcllattie, 10 Ch. D. 398; 48 L. J. Bank. 26; and 
Button v. O'Neill, 4 C. P. D. 354 ; 48 L. J. C. P. 368. The 
description of the grantor's residence and occupation required to 
be filed by the 1854 Bills of Sale Act is that of such residence, 
&c. at the time of the making of the affidavit, and not that at 
the time of the giving of the bill of sale. Button v. O'Neill, 
ante, but see In re Hewer, Ex parte Kahen, 21 Ch. D. 871 ; 51 
L. J. Ch. 904. And see as to grantor's description in a bill of 
sale under the 1854 Act, Moreivood v. South Yorkshire Bail. Co., 
3 H. & N. 798; 28 L. J. Ex. 114; Allen v. Thompson, ante; 
Beales v. Tennant, 29 L. J. Q. B. 188; Pickard v. Bretz, 5 H. 
& N. 9 ; 29 L. J. Ex. 18 ; 1 L. T. 45 ; Foulger v. Taylor, 1 L. 
T. 57 ; Sutton v. Bath, 3 II. & N. 382 ; 27 L. J. Ex. 388 ; 
Adams v. Graham, 33 L. J. Q. B. 71 ; 9 L. T. 606 ; Ileicer v. 
Cox, 30 L. J. Q. B. 73 ; 3 L. T. 508 ; Gray v. Jones, 14 C. B. 
N. S. 743 ; and Larch in v. North Western Deposit Bank, L. R. 
10 Ex. 64; 44 L. J. Ex. 71. The omission of a part of the 
description of the grantor of a bill of sale, which was neither 
intended nor calculated to deceive, and did not in fact deceive, 
will not, if the description is correct, invalidate the bill of sale. 
Throsscll v. Marsh, 53 L. T. 321. 

The registration of a bill of sale in the name of the grantor by Name. 
which he is known and recognized at the time is sufficient and 
valid. Central Bank v. Hawkins, 62 L. T. 901. Where in a 
bill of sale, executed by a man and his wife, the grantor made 
use of the christian name of " Alfred," his real name being 
"George Henry Arthur " S., whilst his wife was described as 

(a) The Bills of Sale Acts are set out ante, pp. 292 d seq. 
M. / 



338 BILLS OF SALE. 

"the wife of Alfred S.," it was held that the registration of the 
bill of sale was not thereby rendered invalid, and that neither 
the Bills of Sale Act of 1878 nor the amendment Act of 1882 
contained any provision requiring the grantor to make use of 
his own christian name. Downs v. Salmon, 20 Q. B. D. 775 ; 
57 L. J. Q. B. 454. In Lee v. Turner, 20 Q. B. D. 773 ; 59 
L. T. 320, the grantor of a bill of sale was therein and in the 
affidavit filed upon registration described as " Kendrick Turner, 
Tutor," whereas, in fact, his name was Frederick Henry Turner, 
and he was a schoolmaster. It was held, that such misdescrip- 
tion rendered the registration of the bill of sale void. 
Occupation. One who up to and at the time of a bill of sale had never 

been actually engaged in any trade or occupation was held 
properly described therein (or in the affidavit filed therein) as a 
" gentleman." Gray v. Jones, 14 C. B. N. S. 743. The lessee 
and manager of a theatre is not sufficiently described as " esquire" 
within the meaning of sect. 1 of the 1854 Bills of Sale Act. 
Ex parte Ilooman, In re Fining, L. R. 10 Eq. 63 ; 39 L. J. 
Bank. 4. See also Cooper v. Davis, 48 L. T. 831 ; 32 W. E. 
329 (0. A.). The business, required by the 1878 Act to be 
stated in the affidavit, is that by which the grantor of the bill of 
sale ordinarily seeks to make his livelihood, in respect of which 
he contracts debts, and which is his substantial as distinguished 
from any ancillary employment which he may carry on in 
addition for amusement or otherwise. Ex parte The National Mer- 
cantile Bank, In re Haynes, (0. A.) 15 Ch. D. 42 ; 49 L. J. 
Bank. 62 ; 43 L. T. 36 ; In re Moulson, Ex parte Knightlcy, 51 
L. J. Ch. 823. In Sharp v. McHenry, Sharp v. Brown, 38 Ch. 
D. 427 ; 57 L. J. Ch. 961, the grantor of a bill of sale made 
in 1879 was described as a " contractor and financial agent." 
He had actively carried on the business of a financial agent 
down to 1874, when he became involved in litigation arising out 
of that business, which absorbed the whole of his time to the 
exclusion of other business. It was held, that the grantor's 
occupation was correctly described within the Bills of Sale Act, 
1878, s. 10, sub-s. 2. See the judgment of Kay, J., therein as 
to the meaning and purpose of that sub-section. In a bill of 
sale on the furniture of an hotel, the licence for which was taken 
out in the name of a third person, the grantor who carried on 
the business of the hotel was described as " a married woman." 
This was held to be a sufficient description. Usher v. Martin, 
61 L. T. 778. 



FORMALITIES TO BE OBSERVED. 339 

In Greenhorn v. Child, 24 Q. B. D. 29; 59 L. J. Q. B. 27, Residence, 
the grantor resided at X. and carried on business there and at 
Y. & Z., and a statement in the affidavit that he resided at X. 
was held to be a sufficient description of his residence. 

In a bill of sale the grantee's residence was incorrectly re- Description 
ferred to as "Boldock, in the County of Hereford"; the deed of grantee - 
was registered and re-registered, and in the affidavit on the 
renewal of registration the grantee's residence was correctly 
stated as " Baldoek, in the County of Hertford." It was held 
that, as sucli residence was not stated in the affidavit as it was 
stated in the bill of sale, the bill of sale was, under sect. 11 of 
the Bills of Sale Act, 1878, invalid as against the execution 
creditor. Ex parte Welder, In re Morris, 22 Ch. D. 136 ; 52 
L. J. Ch. 375. In the undermentioned case under the 1882 
Act, the grantee of a bill of sale was described as " The Discount 
Bank of London .... of which said bank L. S. of the same 
place is the sole proprietor." Reference was made in other 
parts of the bill of sale to " the said bank " as the grantee, and 
the chattels were assigued " to the said bank and its assigns." 
It was held by the House of Lords, reversing the decision of the 
Court of Appeal, that there was no ambiguity in the description 
of the grantee who was sufficiently identified in the instrument 
as L. S. /// re Ileseltine, Woodward v. Heseltine, [1891] 1 Ch. 
464 ; reversed by the House of Lords, sub nom. Simmon* v. 
Woodward, 61 L. J. Ch. 252; "W. N. (1892) 38. 

(b) Attestation. 

See the Bills of Sale Act, 1854, s. 1 ; the Bills of Sale Act, 
1878, s. 10, sub-ss. 1 and 2 ; and the Bills of Sale Act, 1882, 
ss. 8 and 10(0- 

As to description of residence and occupation of attesting Description 
witness on filing under the 1854 Act, see Attenhorouqh v. of residence 

° J and occupa- 

Tkompson, 2 H. & X. ooi) ; 27 L. J. Ex. 23; Black-well v. England, tion of attest- 
27 L. J. Q. B. 121 ; Luton v. Sanoner, 3 H. & X. 280 ; 27 SffSsJ* 
L. J. Ex. 2!):} ; Sladdeti v. Sergeant, 1 F. & F. 322; . , v. Act - 

Cooper, 3 II. & X. 384 ; 27 L. J. Ex. 393 ; Bath v. Sutton, 1 
F. & F. 152 ; 27 L. J. Ex. 388 ; Dryden v. Hope, 9 W. II. 18 ; 
3 L. T. 280; and Banbury v. White, 2 II. & C. 300 ; 32 L. J. 
Ex. 258 ; as also Shears v. Jacobs, L. R. 1 C. P. 513 ; 35 L. J. 

(t) The Bills of Salo Acts arc sot out ante, pp. 292 - 1 sey. 
z2 



340 



BILLS OF SALE. 



Under 1878 
Act bill to be 
attested and 
explained by 
solicitor : 



but be cannot 
attest bill in 
bis own 
favour. 



Under 1882 
Act, attesta- 
tion to be by- 
witness. 



Description 
of attesting 
witness under 
1878 and 1882 
Acts. 



C. P. 241 ; Befell v. White, L. E. 2 C. P. 144 ; 36 L. J. 0. P. 
25 ; and Briggs v. Boss, L. E. 3 Q. B. 268 ; 37 L. J. Q. B. 101. 

Under the 1878 Act, s. 10, the execution must he attested by 
a solicitor of the Supreme Court, and the attestation clause must 
state that the hill of sale has heen explained to the grantor by 
such solicitor. Where, by the attestation clause, the bill of sale 
purports to have been explained to the grantor by the attesting 
solicitor, the provisions of the 1878 Act respecting attestation 
are fully complied with, and the validity of the document is not 
affected by the omission of the attesting solicitor to give the 
explanation which he says that he has given. But such solicitor 
would, as an officer of the Court, be liable to punishment for 
misbehaviour. Ex parte The National Mercantile Bank, In re 
Eaynes, 15 Ch. D. 42 ; 49 L. J. Bank. 62. 

A solicitor cannot be the attesting witness of a bill of sale 
made in his favour, so as to satisfy the attestation requirements 
of the 1878 Bills of Sale Act. Seal v. Claridge, 7 Q. B. D. 516; 
50 L. J. Q. B. 316. But the execution of a bill of sale under 
the 1878 Bills of Sale Act may be attested by the grantee's 
solicitor. Penicarden v. Roberts, 9 Q. B. D. 137 ; 51 L. J. 
Q. B. 312. 

But now, under the 1882 Act, the execution of a bill of sale 
is to be " attested by one or more credible witness or witnesses 
not being a party or parties thereto," and the previous necessity 
of the attestation clause indicating that the bill of sale had been 
previously explained to the grantor by the attesting witness is 
now dispensed with. The Bills of Sale Act, 1882, repeals 
sect. 10 of the 1878 Act only so far as that section relates to 
bills of sale given by way of security for the payment of money. 
Accordingly, bills of sale granted by way of absolute transfer 
must still be attested in accordance with the attestation require- 
ments of sect. 10. Casson v. Churchletj, 53 L. J. Q,. B. 335; 50 
L. T. 568 {Swift v. Fannell, 24 Ch. D. 210, followed) . Eeferring 
to the above partial repeal of sect. 10 of the 1878 Act, an attorney 
may now be appointed to execute a bill of sale by way of security 
for the grantor, and the grantee may be so appointed, although 
he cannot require any but one in accordance with the statutory 
form. Furnivallv. Hudson, [1893] 1 Ch. 335 ; 2 L. J. Ch. 178 ; 
68 L. T. 378. 

With regard to the description of the attesting witness, 
" Walter Neve of Luton in the county of Bedford, solicitor," 
has been held to be a sufficient description of the attesting 



FORMALITIES TO BE OBSERVED. 341 

witness within the 1878 Act. Gardner v. Smart, 1 C. & E. 14. 
And see as to address and description of attesting witness under 
the Bills of Sale Act, 1882, In re Heseltine, Woodward v. Hesel- 
tine, [1891] 1 Ch. 464; and sub nom. Simmons v. Woodioard, 
61 L. J. Ch. 252 ; W. N. (1892) 38. With regard to the 
attestation requirements of the 1882 Act (sect. 8), a defect in 
the required address and description of the attesting witness is 
not cured by the fact that such address and description appear 
in the registration affidavit. Parsons v. Brant/, Coulson v. 
Dickson, 25 Q. B. D. 110; 59 L. J. Q. B. 189; and see 
Blankemtein v. Robertson, 24 Q. B. D. 543 ; 59 L. J. Q. B. 
315 ; and Bird v. Dare,/, [1891] 1 Q. B. 29 ; 60 L. J. Q. B. 8. 
The attesting witness to a bill of sale may properly insert therein 
as his address the place where he is occupied during the day, 
though he does not sleep there. In re Ileseltine, Woodward v. 
Heseltine, [1891] 1 Ch. 464 ; 60 L. J. Ch. 357. 



(c) Affidavit of Execution and Attestation. 

See the Bills of Sale Act, 1854, s. 1, and the Bills of Sale 
Act, 1878, s. 10, snb-s. 2 («). 

The affidavit of the attesting witness to the execution of a bill Attestation 
of sale, required by sect. 1 of the 1854 Bills of Sale Act to be ecriptionof 
filed with the bill, will be sufficient, if, on comparison with the Wltliess - 
bill, it appears to have been made by the attesting witness. 
Routh v. Roublott, 28 L. J. Q. B. 240. Such affidavit (under 
the 1854 Act) must give either directly or by reference to the 
bill of sale, a description of the residence and occupation of the 
attesting witness at the time of his attesting the bill of sale. 
Brodrick v. Scale, L. E. 6 C. P. 98 ; 40 L. J. C. P. 130. But 
an insufficient description of an attesting witness to a bill of 
sale under the 1854 Act, contained in his affidavit registered 
therewith, may be cured by reference to a sufficient description 
of him in the attestation clause of the bill of sale. Ex parte 
Mackenzie, In re Bent, 42 L. J. Bank. 25; 28 L. T. 486. 
Where a bill of sale was attested by two witnesses and regis- 
tered, and the registration affidavit only, however, contained a 
description of one of the attesting witnesses, it was held that 
there must be an affidavit describing both the witnesses, as well 



(») Tho Bills of Sale Acts are set out ante, pp. 29:2 et seq. 



342 BILLS OF SALE. 

as verifying the copy of the bill of sale. Pickard v. Marriage, 1 
Ex. D. 364 ; 45 L. J. Ex. 594. See also Bhiberg v. Parke, 10 
Q. B. D. 90; 52 L. J. Q. B. 110; Ex parte Young, In re 
Symonds, 42 L. T. 744 ; and Blount v. Harris, 4 Q. B. D. 603 ; 
48 L. J. a. B. 159. 

By the affidavit of attestation required by the 1878 Act (sect. 
10, sub-sect. 2), it must be shown that the attesting witness was 
present at the execution of the bill of sale. Accordingly, such 
an affidavit which only verified the signature of the attesting 
witness was held to be insufficient and the registration of the 
bill of sale consequently invalid. Sharp v. Birch, 8 Q. B. D. 
Ill; 51 L. J. Q. B. 64; Ford v. Kettle, 9 Q. B. D. 139; 51 
L. J. Q. B. 558 ; and In re Moulson, Ex parte Knigldley, 51 
L. J. Ch. 823. It is not, however, necessary for the affidavit of 
attestation to state in so many words that the attesting witness 
did attest the bill of sale. It is sufficient if this can be inferred 
from such affidavit. Yates v. Asheroft, 47 L. T. 337 ; and see 
Cooper v. Zefert, (C. A.) 32 W. E. 402. 
Execution by The affidavit of execution and attestation must state that the 

TIKI (ipQr;i*lT) — 

tion of bill of sale has been duly executed and attested, and also give a 

grantor. description of the residence and occupation of the grantor. In 

Ex parte Carter, In re Threapplcfon, 12 Ch. D. 78; 41 L. T. 37, 
the attesting solicitor in his affidavit only stated that he saw the 
grantor sign and execute the bill of sale. It was held that such 
affidavit was sufficient, within the meaning of sect. 10, sub-sect. 
2, of the Bills of Sale Act, 1878. See also Ex parte Bolland, 
In re Roper, 21 Ch. D. 543; 52 L. J. Ch. 113. An affidavit, 
which swore positively as to the time of the making of the bill 
of sale, but qualified the description of the residence and occu- 
pation of the person making it by stating them to be to the best 
of the belief of the deponent, was held sufficient to satisfy the 
requirements of the 1854 Act. Hoc v. Bradshaw i L. R. 1 Ex. 
106 ; 35 L. J. Ex. 71. In Jones v. Harris, L. R. 7 Q. B. 157; 
41 L. J. Q. B. 6, it was held that a defect as to the description 
of the grantor's residence in the filed affidavit might be cured 
by reference to the bill of sale. 



REGISTRATION. 343 

Registration. 

See the Bills of Sale Act, 1854, sects. 1, 3, 5, and 6, the Bills 
of Sale Act, 1866, the Bills of Sale Act, 1878, sects. 8, 10, 11, 
12, 13, 14, 15, and 10, and the Bills of Sale Act, 1882, sects. 8, 
11, 15, and 16 (x). See also Ilatton v. English, 7 El. & Bl. 
94 ; 26 L. J. Q. B. 161 ; Green v. Attenborourjh, 3 II. & C. 468 ; 
34 L. J. Ex. 88 ; Marpks v. Hartley, 3 El. & E. 610 ; 30 L. J. 
Q. B. 92 ; Cookson v. Swire, 9 App. Cas. 653 ; Garrard v. Meek, 
43 L. T. 760 ; Sharp v. McHenry, Sharp v. Broicn, 57 L. J. Ch. 
961; Ex parte Blaiberg, In re Toomer, 23 Ch. D. 254; the im- 
portant decision, on {inter alia) sect. 10 of the 1878 Act, of Tuck 
v. Southern Counties Deposit Bank, 42 Ch. D. 471 ; 58 L. J. Ch. 
699 ; Su-i/t v. Pannell, 24 Ch. D. 210 ; 48 L. T. 351 ; Casson v. 
ChurcMey, 53 L. J. Q. B. 335 ; 50 L. T. 568 ; and the recent 
case of Davidson v. Carlton Bank, [1893] 1 Q. B. 82 ; 41 W. E. 
132 (C. A.). 

The gist of the decision in Tuck v. Southern Counties Deposit All bills of 
Bank, ante, seems to he (1) that all hills of sale whether absolute rtAstxadon. 
or by way of secimty require registration, hut (2) that an un- 
registered absolute assignment is not void except against certain 
persons, therefore (3) that a properly registered and otherwise 
valid bill of sale by way of mortgage is void, when given by 
the grantor of a prior unregistered absolute bill, because the 
grantor was not at the time of his giving the second bill the 
true owner of the chattels within sects. 5 and 6 of the Bills of 
Sale Act, 1882, and that in effect, therefore, the priority given 
by registration is of no avail, except as between mortgagees. 
It will not help a mortgagee as against an absolute unregistered 
transferee of chattels. 

A transfer or assignment of a registered bill of sale need not, Registration 
however, be registered (sect. 10, sub-sect. 3, 1878 Act) ; and see ™ tra^ferof 
iu connection with transfer, Home v. Hughes, 6 Q. B. D. 676 ; registered 
50 L. J. Q. B. 403 ; and Ex parte Turquand, In re Barker, 14 bm ; 
Q. B. D. 636 ; 54 L. J. Q. B. 242. An agreement to give a nor of agree- 
bill of sale does not require registration where the bill of sale b m . ° 
has been given in pursuance of such an agreement, and the bill 
of sale is not void by reason of the non-registration of the 
agreement. Ex parte BTauxwell, In re Hemingway, 23 Ch. D. 



(.)) Tlio Bills of Sale Acts are set out ante, pp. 292 et seq. 



844 



BILLS OF SALE. 



nor when 
possession 
taken within 
time allowed 
for registra- 
tion. 



Effect of 
registration 
within pre- 
scribed, time 
when grantor 
bankrupt. 



Effect of 
omission to 
renew regis- 
tration. 



Renewal not 
necessary on 
transfer. 



Rectification 
of register. 



Omission of 
registrar to 
transmit 

abstract. 



626 ; 52 L. J. Cli. 737. A bill of sale did not require registra- 
tion when possession was taken by the assignee of tlie property 
comprised in the bill of sale within the twenty-one days allowed 
for registration by the Bills of Sale Act, 1854 (Ex parte Northern 
Investment and Discount Co., In re Carlisle, 27 L. T. 520 ; Brig- 
nail v. Cohen, 21 W. E. 25 ; and Banbury v. White, 2 H. & 0. 
300 ; 32 L. J. Ex. 258 ; 8 L. T. 508) ; but now, under the 
Bills of Sale Acts of 1878 and 1882, the period allowed for 
registration is seven days, so that, it seems, when possession is 
taken of the property within that time, the bill of sale is not 
invalidated by reason of non-registration. 

A bill of sale registered within the time prescribed by sect. 8 
of the 1882 Act will sufficiently protect the goods comprised in 
it, notwithstanding the grantor's bankruptcy in the interval 
between execution and registration. In re Hewer, Ex parte 
Kahen, 21 Ch. D. 871 ; 51 L. J. Ch. 904. 

The effect of omitting to renew the registration of a bill of 
sale within five years after its execution, as required by sect. 11 
of the Bills of Sale Act, 1878, is, since the passing of the Bills 
of Sale Act, 1882, to make such bill of sale wholly void, even 
as between grantor and grantee. Fenton v. Blythe, 25 Q. B. D. 
417 ; 59 L. J. Q. B. 589. But a renewal of registration is not 
necessary by reason of a transfer or assignment of a bill of sale. 
1878 Act, sect. 11. And see on this subject, Karet v. Kosher 
Meat Supply Association, Limited, 2 Q. B. D. 361 ; 46 L. J. Q. B. 
548 ; Ex parte Webster, In re Morris, 22 Ch. D. 136 ; 52 L. J. 
Ch. 375 ; see also Askew v. Lewis, 10 Q. B. J). 477, in connection 
with the renewal of bills of sale under the 1854 and 1866 Acts. 

With regard to a judge's power under sect. 14 of the 1878 
Act to rectify an omission to register a bill of sale, or an omis- 
sion or misstatement of any person's name, residence, or occupa- 
tion, see In re Bobbin's Settlement, 56 L. J. Q,. B. 295, and in 
particular Crew v. Cummings, 21 Q. B. D. 420; 57 L. J. Q,. B. 
641, and In re Parsons, Ex jxtrte Furbcr, [1893] 2 Q. B. 122 ; 
62 L. J. U. B. 365; 68 L. T. 777. A mere clerical error or 
omission, which can mislead no one, will not prevent the copy 
bill of sale, required to be filed pursuant to sect. 10, sub-sect. 2, 
of the 1878 Act, from being a true copy within the meaning of 
that section, or vitiate the bill of sale. In re Hewer, Ex parte 
Kahen, 21 Ch. D. 871 ; 51 L. J. Ch. 904. The omission of the 
registrar of bills of sale to transmit (under the provisions of the 
1878 and 1882 Acts) an abstract of a registered bill of sale to the 



grantor's continued possession. 345 

registrar of the County Court within the district in which the 
chattels enumerated in the bill are situated, does not avoid the 
bill. Trinder v. Raynor, 56 L. J. Q. B. 422. 



Grantor's continued Possession. 

See the Bills of Sale Act, 1854, ss. 1, 7, and the Bills of Sale 
Act, 1878, ss. 4, 8 (>/). 

In the case of an unregistered bill of sale, unless something Grantor's 
has been done to change, in the outer world's view, that appear- po^o^on 
ance of ownership with which the assignor is invested, such under 1854 
chattels remain in his " apparent possession " within the mean- 
ing of the 1854 Bills of Sale Act, and this notwithstanding that 
more than merely formal possession has been taken by, or given 
to, another person. Ex parte Hooman, In re Vining, L. R. 10 
Eq. 63 ; 39 L. J. Bank. 4. Moreover, an advertisement of an 
intended sale of goods comprised in an unregistered bill of sale, 
even if posted on the grantor's premises where the goods are, 
must, in order to take the goods out of his possession or apparent 
possession, state that the sale is to be made under a bill of sale. 
Ex parte Leicis, In re Henderson, L. R. 6 Ch. 626; Emanuel v. 
Bridger, L. B. 9 Q. B. 286 ; 43 L. J. Q. B. 96. 

The occupation, referred to in sect. 7 of the Bills of Sale Act, 
1854, means a de facto occupation. Robinson v. Briggs, L. R. 6 
Ex. 1 ; 40 L. J. Ex. 17. In that case the grantor of a bill of 
sale, which was not registered, was tenant of rooms where the 
goods comprised in it were placed, but he resided elsewhere. 
Having made default in paying the sum secured he gave the 
keys of the rooms to the grantee, who opened the rooms and 
put his name on some of the goods. None, however, were re- 
moved, and an execution at the suit of a judgment creditor 
against the debtor was afterwards levied on them. It was held, 
that the grantor did not " occupy " the rooms within the mean- 
ing of the 1854 Act, sect. 7, and that the goods were not to be 



(//) The Bills of Sale Acts are set out ante, pp. 292 et seq. It will bo 
observed that bills of sale to which the Bills of Sal>' Art, lssi', applies 
arr void unless duly registered, as to which bills of sale the doctrine of 
apparent possession is accordingly inapplicable. 



346 BILLS OF SALE. 

deemed in his " apparent possession," and that the bill was 
therefore valid as against the execution creditor. 

Goods, formally seized by the sheriff under an execution, 
remain in the apparent possession of the debtor within the 
meaning of the 1854 Bills of Sale Act. Ex parte Mutton, In re 
Cole, 41 L. J. Bank. 57. But this decision was not followed in 
the subsequent case of Ex parte Safer y, In re Brenner, 16 Ch. 
D. 668, where it was held that, if the goods comprised in an 
unregistered bill of sale are, at the time of the filing of a bank- 
ruptcy petition against the grantor, in the actual visible possession 
of the sheriff under an execution, issued either by the grantee 
or by a third person, they are not, even though the grantee has 
himself taken no possession, in the " apparent possession " of 
the grantor, and that the Bills of Sale Act does not apply. 
" The distinction between formal and real possession is this, that 
if a bailiff is simply put in and remains in possession so as to 
prevent the removal of the goods, but allowing everything to go 
on just as it did before and permitting everything to be used by 
the debtor and his family, then the goods still remain in the 
apparent possession of the debtor. There must be something 
done which, in the eyes of everybody who sees the goods or who 
is concerned in the matter, plainly takes the goods out of the 
apparent possession of the debtor." Per Mellish, L. J., in Ex 
parte Jay, In re Blcnkhorn, L. E. 9 Oh. 697 ; 43 L. J. Bank. 
122. But the grantee need not have exclusive possession to take 
the chattels out of the apparent possession of the grantor. Bur- 
roughs v. Williams, L. J. Notes of Cases (1878), 127. 

In Pickard v. Marriage, 1 Ex. D. 364 ; 45 L. J. Ex. 594, 
a bill of sale was given to the grantee by way of security over 
certain furniture and goods of the grantor, of which one article 
was delivered to the grantee by way of possession of the whole. 
The whole of the chattels were left on the premises into which 
the grantee put the grantor to manage a milk business for him 
at a weekly salary with the use of the house and mortgaged 
chattels. The chattels were afterwards seized by an execution 
creditor, and it was held that the goods were in the grantor's 
apparent possession. Per Bramwell, B. : " The bill of sale not 
being properly registered, the plaintiff contended that the debtor 
was not in possession of the goods at the time of the execution. 
The debtor was, however, bond fide in possession, the goods com- 
prised in the bill of sale being household furniture in rooms 



grantor's continued possession. 347 

■which he occupied as servant to the plaintiff by using the rooms 
and having the benefit of the furniture, no doubt as part of his 
wages, but he was de facto in possession of the goods. It was 
said that that was not the possession meant by the Act. "We 
are of opinion that it was. It is within the very words and 
mischief of the Act. Suppose, instead of receiving 1/. per week 
wages and having also the use of the furniture, the terms had 
been merely that he should receive 1/. 5s. per week, it is perfectly 
manifest that he would be within the Act, otherwise the conse- 
quence would be that the grantor of the bill of sale would con- 
tinue in possession of the goods, paying rent to the grantee, and 
then the bill of sale need not be registered. This would be just 
the mischief which the Act was designed to prevent." The 
reader is advised to read this important case and the authorities 
cited therein. See also as to apparent possession within the 
1854 Act, Gough v. JEverard, 2 H. & C. 1 ; 32 L. J. Ex. 210. 

" Apparent possession " in sect. 8 of the 1878 Act means Apparent 
" apparently in the possession of," as distinguished from un der S i878 
"actually in the possession of," and goods may at the same Act - 
time be in the true and actual possession of one person and in 
the apparent possession of another. Robinson v. Tucker, 1 C. & 
E. 173 ; and see as to apparent possession, Edwards v. Edwards, 
2 Ch. D. 291 ; 45 L. J. Ch. 391 ; Furber v. FinUyson, 34 L. T. 
323 ; Ex parte Fletcher, In re Henley, 5 Ch. D. 809 ; 46 L. J. 
Bank. 93 ; and Gibbons v. Hickson, 55 L. J. Q. B. 119 ; 53 L. 
T. 910. 



Grantee's Seizure or taking Possession. 

As to grantee's seizure or taking possession, see Briejhty v. 
Norton, 32 L. J. Q. B. 38 ; 3 B. & S. 305 ; Toms v. Wilson, 32 
L. J. U. B. 382 ; 4 B. & S. 455 ; and Ex parte Fletcher, In re 
Henley, 5 Ch. D. 809 ; '46 L. J. Bank. 93. 



343 BILLS OF SALE. 



Consolidation. 



A bill of sale holder is not entitled to consolidate Lis bill of 
sale with a mortgage of land of the grantor as against an exe- 
cution creditor. Chesworth v. Hunt, 5 C. P. D. 266 ; 49 L. J. 
C. P. 507. 



Transfer or Assignment of Bill of Sale. 

As already intimated, a transfer or assignment of a registered 
bill of sale need not be registered ; nor is renewal of registration 
necessary by reason of a transfer or assignment of a bill of sale. 



349 



Chapter XXV. 

BANKRUPTCY, ARRANGEMENTS WITH CREDITORS, AND VOLUN- 
TARY OR FRAUDULENT DISPOSITIONS OF PROPERTY. 

PAGE 

I. Bankruptcy 349 

Available Acts of Bankruptcy - 349 

Receiving Order ------- 351 

Stay of Proceedings ------ 353 

Discharge of Bankrupt 354 

Relation back of Trustee's Title and Commencement of 
Bankruptcy ------- 356 

Extent of Bankriqrfs Property divisible amongst 

Creditors 35G 

Effect of Bankruptcy on Antecedent Transactions - 358 
Small Bankruptcies ------ 366 

Supplemental Provisions ----- 366 

II. Arrangements with Creditors ----- 366 

Statutory Arrangements - 366 

Private Arrangements ------ 367 

III. Voluntary or Fraudulent Dispositions of Property - 369 



I. Bankruptcy. 
Available Acts of Bankruptcy 
Under the Bankruptcy Act, 1883 (46 & 47 Yict. c. 52), s. 4, Available 

acts of 
ruptcy 



sub-s. 1, "a debtor commits an act of bankruptcy in each of the a ' 



following cases : — 

" (a) If in England or elsewhere he makes a conveyance or 
assignment of his property to a trustee or trustees for 
the benefit of his creditors generally." There must be 
a conveyance or assignment in the proper sense of the 
term. In re Spackman, Ex parte Foley, 24 Q. B. D. 
728 ; 59 L. J. Q. B. 306 ; 62 L. T. 849 ; 7 M. B. E. 
100, which is discussed and explained in In re Uughcs, 



350 BANKRUPTCY. 

Ex parte Hughes, [1893] 1 Q, B. 595 ; 62 L. J. Q. B. 
858 ; 68 L. T. 629. 

" (b) If in England or elsewhere he makes a fraudulent con- 
veyance, gift, delivery, or transfer of his property, or 
of any part thereof." The fraudulent intention is 
essential. In re Spackman, Ex parte Foley, ante. 

" (c) If in England or elsewhere he makes any conveyance 
or transfer of his property or any part thereof, or 
creates any charge thereon which would under this or 
any other Act he void as a fraudulent preference if he 
were adjudged bankrupt. 

" (d) If with intent to defeat or delay his creditors he does 
any of the following things, namely, departs out of 
England, or being out of England remains out of 
England, or departs from his dwelling-house, or 
otherwise absents himself, or begins to keep house. 

[Clause (e) is repealed by the Bankruptcy Act, 1890 (53 & 54 
Yict. 71), and sect. 1 of that Act, infra, is substi- 
tuted.] 

" (f) If he files in the Court a declaration of his inability to 
pay his debts, or presents a bankruptcy petition against 
himself. 

" (g) If a creditor has obtained a final judgment against him 
for any amount, and execution thereon not having 
been stayed, has served on him in England or, by 
leave of the Court, elsewhere, a bankruptcy notice 
under this Act, requiring him to pay the judgment 
debt in accordance with the terms of the judgment, or 
to secure or compound for it to the satisfaction of the 
creditor or the Court, and he does not, within seven 
days after service of the notice, in case the service is 
effected in England, and in case the service is effected 
elsewhere, then within the time limited in that behalf 
by the order giving leave to effect the service, either 
comply with the requirements of the notice, or satisfy 
the Court that he has a counter-claim, set-off, or cross- 
demand which equals or exceeds the amount of the 
judgment debt, and which he could not set up in the 
action in which the judgment was obtained." The 
judgment must be one on which execution could go 
immediately and without leave. Ex parte Lie, 17 Q. 
B. D. 755 ; 55 L. J. Q. B. 484. The term " final 



AVAILABLE ACTS OF BANKRUPTCY. 351 

judgment " has been discussed in Ex parte Alexander, 
[1892] 1 Q. B. 21G ; 61 L. J. Q. B. 377 ; Ex parte 
Moore, in re Faithful, 11 Q. B. D. 627; 54 L. J. Q. B. 
190; 52 L. T. 376 ; Ex parte Henderson, 20 Q. B. D. 
509 ; 57 L. J. Q. B. 258 ; 58 L. T. 835. See also 
Salaman v. Warner, [1891] 1 Q. B. 734 ; 60 L. J. 
Q. B. 624. " Creditor " in the above section means 
any person who is entitled for the time being to enforce 
a final judgment, as to which see sect. 1 of the Bank- 
ruptcy Act, 1890. 
" (h) If the debtor gives notice to any of his creditors that he 
has suspended, or that he is about to suspend, payment 
of his debts." On the construction of this clause, see 
Crook v. Morley, [1891] A. C. 316 ; 24 Q. B. D. 320 ; 
65 L. T. 389 ; 8 M. B. R. 227 ; and In re Daintraj, 
Ex parte Holt, [1893] 2 Q. B. 116. 
By sect. 1 of the Bankruptcy Act, 1890 (53 & 54 Yict. c. 71), 
which is substituted for sub-sect. 1 (e) of sect. 4 of the Bank- 
ruptcy Act, 1883, " a debtor commits an act of bankruptcy if 
execution against him has been levied by seizure of his goods 
under process in an action in any Court, or in any civil pro- 
ceeding in the High Court, and the goods have been either sold 
or held by the sheriff for twenty-one days. Provided that, where 
an interpleader summons has been taken out in regard to the 
goods seized, the time elapsing between the date at which such 
summons is taken out and the date at which the sheriff is ordered 
to withdraw, or any interpleader issue ordered thereon is finally 
disposed of, shall not be taken into account in calculating such 
period of twenty-one days." 



Receiving Order. 

By sect. 6, sub-sect. 1, of the Bankruptcy Act, 1883, "A Conditions 
creditor shall not be entitled to present a bankruptcy petition c^tormay 
against a debtor unless — petition. 

" (a) The debt owing by the debtor to the petitioning creditor, 
or, if two or more creditors join in the petition, the 
aggregate amount of debts owing to the several 
petitioning creditors, amounts to fifty pounds, and 



352 BANKRUPTCY. 

" (b) The debt is a liquidated sum, payable either immediately 

or at some certain future time, and 
" (c) The act of bankruptcy on which the petition is grounded 
has occurred within three months before the presenta- 
tion of the petition, and 
" (d) The debtor is domiciled in England, or, within a year 
before the date of the presentation of the petition, has 
ordinarily resided or had a dwelling-house or place of 
business in England." 
"Where pro- By sect. 7, sub-sect. 6, " Where proceedings are stayed, the 

shved g Court Court may, if by reason of the delay caused by the stay of pro- 
may make ceedings or for any other cause it thinks just, make a receiving 
another order on the petition of some other creditor, and shall thereupon 

petition. dismiss, on such terms as it thinks just, the petition in which 

proceedings have been stayed as aforesaid." By sub-sect. 7, 
"A creditor's petition shall not, after presentment, be withdrawn 
without the leave of the Court." 
Debtor's peti- By sect. 8, sub-sect. 1, "A debtor's petition shall allege that 
tion and order ^ e debtor is unable to pay his debts, and the presentation 
thereof shall be deemed an act of bankruptcy without the 
previous filing by the debtor of any declaration of inability to 
pay his debts, and the Court shall thereupon make a receiving 
order." By sub-sect. 2 " A debtor's petition shall not, after 
presentment, be withdrawn without the leave of the Court." 
Effect of re- After proof of the petitioning creditor's debt, the act of bank- 
ceivmg order. rU p£ C y an( j se rvice of the petition, a receiving order is made. 
As to the effect of a receiving order for the protection of the 
estate, by sect. 9, sub-sect. 1, it is enacted that "On the making 
of a receiving order an official receiver shall be thereby con- 
stituted receiver of the property of the debtor, and thereafter, 
except as directed by this Act, no creditor to whom the debtor 
is indebted in respect of any debt provable in bankruptcy shall 
have any remedy against the property or person of the debtor 
in respect of the debt, or shall commence any action or other 
legal proceedings unless with the leave of the Court and on such 
terms as the Court may impose." By sub-sect. 2 "This section 
shall not affect the power of any secured creditor to realize or 
otherwise deal with his security in the same manner as he would 
have been entitled to realize or deal with it if this section had 
not been passed." 
Adjudication After the receiving order is made, the creditors may resolve 
of bank- .j-j^ £j ie debtor be adjudged a bankrupt, and if they so resolve, 



RECEIVING ORDER. 353 

and also in certain other circumstances, the Court " shall " 
adjudge the debtor a bankrupt, and immediately the adjudica- 
tion is made, the debtor's property vests in the trustee, or, if no Vesting of 
trustee is appointed, in the official receiver acting as trustee. P ro P ert y- 
Bankruptcy Act, 1883, ss. 20 and 54 ; Turquand v. Bonn! of 
Trade, 11 App. Cas. 286; 55 L. J. Q. B. 417; 55 L. T. 30; 
Ex parte Pinfold, [1892] 1 Q. B. 73 ; 61 L. J. Q. B. 161 ; 65 
L. T. 683 ; 8 M. B. R. 312 ; 40 W. R. 223. As to property 
acquired by the bankrupt after the bankruptcy and before his 
discharge, all transactions with reference to such property entered 
into by the bankrupt with persons dealing bond fide and for 
value, whether with or without knowledge of the bankruptcy, 
are, until the trustee intervenes, valid as against the trustee ; 
(Cohen v. Mitchell, 25 Q. B. D. 262 ; 59 L. J. Q. B. 409 ; 63 
L. T. 206 ; 7M. B. R. 207) ; but semble, this proposition does 
not extend to real estate. In re New Land Development Associa- 
tion and Gra//, [1892] 2 Ch. 138 ; 61 L. J. Oh. 323 ; 40 W. R. 
295 ; 66 L. T. 404. 



Stay of Proceedings. 

By the Bankruptcy Act, 1883, s. 10, sub-s. 2, "The Court Court may 

may at any time after the presentation of a bankruptcy petition l^J s on°™ 00 f 

stay any action, execution, or other legal process against the ot presen- 

property or person of the debtor, and any Court in which pro- petition. 

ceedings are pending against a debtor may, on proof that a 

bankruptcy petition has been presented by or against the debtor, 

either stay the proceedings or allow them to continue on such 

terms as it may think just." And in the case of small bank- In case of 

ruptcies, by sect. 122, sub-sect. 5, " When the [administration] nip t c ies, 

order is made, no creditor shall have any remedy against the county court, 

J J ° t &o. may Btay 

person or property of the debtor in respect of any debt which proceedings. 

the debtor has notified to a county court, except with the leave 
of that county court, and on such terms as that Court may 
impose ; and any county court or inferior court in which pro- 
ceedings are pending against the debtor in respect of any such 
debt shall, on receiving notice of the order, stay the proceedings, 
but may allow costs already incurred by the creditor, and such 
costs may, on application, be added to the debt notified." As to 
motions and practice, see the Bankruptcy Rules, 1886, it. '27 — 37, 
m. \ \ 



354 



BANKRUPTCY. 



Power of 
Court does 
not apply to 
proceedings 
after dis- 
charge. 



Liability of 
sheriff's 
officer for 
proceeding 
after notice. 



and as to service of the order staying proceedings and service of 
notices, see the Bankruptcy Act, 1883, ss. 11 and 142. 

According to "Williams on Bankruptcy, it seems that the 
power of the Court under sect. 10 to restrain actions does not 
apply to proceedings commenced after the discharge of the 
bankrupt, for, since the bankrupt in any such case can plead his 
discharge, he requires no protection. Under the Act of 1869 it 
was held that the Court would not restrain proceedings in an 
action to which the discharge of the debtor in bankruptcy would 
be no defence (Ex parte Coker, In re Blake, L. R. 10 Ch. 652 ; 
44 L. J. Bank. 126; 24 W. E. 145), although in Cobham v. 
Dalton, L. R. 10 Ch. 655 ; 44 L. J. Ch. 702 ; 23 W. R. 865, it 
was held that, although the debt in question was one from which 
the order of discharge would not release the bankrupt, still, as 
it was a debt provable under the bankruptcy, he was, pending 
the bankruptcy proceedings, protected from attachment for dis- 
obedience to an order to pay money into Court. But see on 
this subject, Mitchell v. Simpson, 23 Q. B. D. 373 ; 25 Q. B. D. 
183 ; 59 L. J. Q. B. 355 ; 63 L. T. 405 ; In re Riley, Ex parte 
The Official Receiver, 15 Q. B. D. 329 ; In re Wray, 36 Ch. D. 
138 ; 56 L. J. Ch. 1106 ; 57 L. T. 605. 

In In re Bryant, 4 Ch. D. 98, a sheriff's officer and an 
auctioneer proceeded with the sale of the property of a trader 
seized under a fi. fa, after they had received notice by a letter 
from the debtor's solicitor that he had filed a liquidation 
petition, and had also received notice by telegram that the 
Court of Bankruptcy had made an order restraining further 
proceedings under the writ. It was held, that the sheriff's 
officer and the auctioneer had been guilty of contempt of Court, 
and that they must pay the costs of a motion to commit them. 
See as to restraining the sale by the sheriff of the bankrupt's 
property, Ex parte Tidey, 21 L. T. 685. 



Discharge of Bankrupt. 

Discharge of As to discharge of bankrupt, see the Bankruptcy Act, 1890, 
bankrupt. geci gj syxh . sect 1 (a), and the Rules of 26th November, 1890, 
W. N. (1890) 513. 



(a) Sect. 28 of the Bankruptcy Act, 1883, is repealed by the Bankruptcy 
Act, 1890, and sect. 8 of that Act substituted. 



DISCHARGE OF BANKRUPT. '> : > : > 

As to the effect of an order of discharge, by the Bankruptcy Effect of order 
Act, 1883, sect, 30, suh-sect. 1, "An order of discharge shall not of dischar o e - 
release the bankrupt from any debt on a recognizance nor from 
any debt with which the bankrupt may be chargeable at the 
suit of the Crown, or of any person for any offence against a 
statute relating to any branch of the public revenue, or at the 
suit of the sheriff or other public officer on a bail bond entered 
into for the appearance of any person prosecuted for any such 
offence ; and he shall not be discharged from such excepted 
debts unless the Treasury certify in writing their consent to his 
being discharged therefrom. An order of discharge shall not 
release the bankrupt from any debt or liability incurred by 
means of any fraud or fraudulent breach of trust to which lie 
was a party, nor from any debt or liability whereof he has 
obtained forbearance by any fraud to which he was a party." 
By sub-sect. 2, " An order of discharge shall release the 
bankrupt from all other debts provable in bankruptcy." 
By sub-sect. 3, " An order of discharge shall be conclusive 
evidence of the bankruptcy, and of the validity of the proceed- 
ings therein, and in any proceedings that may be instituted 
against a bankrupt who has obtained an order of discharge in 
respect of any debt from which he is released by the order, the 
bankrupt may plead that the cause of action occurred before 
his discharge, and may give this Act and the special matter in 
evidence." By sub-sect. 4, " An order of discharge shall not 
release any person who at the date of the receiving order was a 
partner or co-trustee with the bankrupt or was jointly bound or 
had made any joint contract with him, or any person who was 
surety or in the nature of a surety for him." And by the 
Bankruptcy Act, 1890, sect. 10, " An order of discharge shall 
not release the bankrupt from any liability under a judgment 
against him in an action for seduction, or under an affiliation 
order, or under a judgment against him as a co-respondent in a 
matrimonial cause, except to such an extent and under such 
conditions as the Court expressly orders in respect of such 
liability." 

Subject to any special conditions attached to his discharge Bankrupt's 
(as to which see the Bankruptcy Act, 1890, sect. 8), the bankrupt "^'l^ v , K ._ 
is entitled to any property ho may acquire after his discharge, quired after 
The discharge is frequently suspended until a dividend of ten 
shillings in the pound has been paid. See In re Hawkins, [1892] 
1 Q. B. 890 ; Gl L. J. Q. B. 458. 

a a 2 



discharge. 



356 BANKRUPTCY. 

Relation back of Trustee's Title and Commencement of 
Bankruptcy. 

Relation back By the Bankruptcy Act, 1883, s. 43, " The bankruptcy of a 
title and 6 com- debtor, whether the same takes place on the debtor's own peti- 
mencement of tion or upon that of a creditor or creditors, shall be deemed to 
have relation back to, and to commence at, the time of the act 
of bankruptcy being committed on which a receiving order is 
made against him, or, if the bankrupt is proved to have com- 
mitted more acts of bankruptcy than one, to have relation back 
to, and to commence at, the time of the first of the acts of bank- 
ruptcy proved to have been committed by the bankrupt within 
three months next preceding the date of the presentation of the 
bankruptcy petition ; but no bankruptcy petition, receiving 
order, or adjudication shall be rendered invalid by reason of 
any act of bankruptcy anterior to the debt of the petitioning 
creditor." And see the Bankruptcy Act, 1890, s. 20, as to 
relation back in the case of a receiving order against a judg- 
ment debtor in pursuance of sect. 103 of the principal (1883) 
Act. See also/;? re McHenry, Ex parte McDermott, 21 Q. B. D. 
580; (C. A.) 36 W. E. 725; Sharp v. McHenry, Sharp v. 
Brown, 57 L. J. Ch. 961 ; 55 L. T. 747 ; and Barrow v. Mlers, 
Seel cy Co., 1 C. & E. 432. 



Extent of the Bankrupt's Property divisible amongst Creditors. 

Extent of By the Bankruptcy Act, 1883, s. 44, " The property of the 

property* divi- bankrupt divisible amongst his creditors, and in this Act referred 
sible amongst to as the property of the bankrupt, shall not comprise the 

creditors. « ni . , . , 

following particulars : — 

" (1.) Property held by the bankrupt on trust for any other 
person ; 

" (2.) The tools (if any) of his trade and the necessary wearing 
apparel and bedding of himself, his wife and children, 
to a value, inclusive of tools and apparel and bedding, 
not exceeding twenty pounds in the whole. 
" But it shall comprise the following particulars : — 

" (1.) All such property as may belong to or be vested in the 
bankrupt at the commencement of the bankruptcy, or 
may be acquired by or devolve on him before his dis- 
charge ; and 



bankrupt's property divisible amongst creditors. 351 

" (2.) The capacity to exercise, and to take proceedings for 
exercising, all such powers in or over or in respect of 
property as might have been exercised by the bank- 
rupt for his own benefit at the commencement of his 
bankruptcy or before his discharge, except the right of 
nomination to a vacant ecclesiastical benefice ; and 
" (3.) All goods being, at the commencement of the bank- 
ruptcy, in the possession, order, or disposition of the 
bankrupt, in his trade or business, by the consent and 
permission of the true owner, under such circumstances 
that he is the reputed owner thereof ; provided that 
things in action, other than debts due or growing due 
to the bankrupt in the course of his trade or business, 
shall not be deemed goods within the meaning of this 
section." 
The reputed ownership of a bankrupt in goods is interrupted Effect of 
if the sheriff has lawfully taken possession of them. Thus, in sheriff o/ 
the case of Fletcher v. Manning, 12 M. & W. 571 ; 1 C. & K. re P uted . 
350 ; 13 L. J. Ex. 150, where the goods, for the proceeds of 
which the action was brought, had been mortgaged by the 
bankrupt, and at the time of the act of bankruptcy were in the 
hands of the sheriff, having been previously seized by him under 
an execution, it was held that the goods, not being in the bank- 
rupt's order and disposition at the time of the act of bankruptcy, 
did not pass to his assignees. Also, in Ex parte Fox*, In re 
Baldwin, 2 Be G. & J. 230; 27 L. J. Bank. 17 ; 4 Jur. N. S. 
522, it was decided that property, which was seized by the sheriff 
before the bankruptcy, and in his possession down to the bank- 
ruptcy, was not in the order, disposition, and reputed ownership 
of the bankrupt. But goods are still in the reputed ownership 
of the bankrupt if the sheriff has wrongfully taken possession of 
them, or if the possession of the sheriff is merely formal. In 
Barrow v. B<U, 5 El. & Bl. 540 ; 25 L. J. Q. B. 2; 2 Jur. N. S. 
159, it was held that goods, left in possession of a trader, at the 
time he became bankrupt, with the owner's consent, pass to the 
assignees, although before bankruptcy the sheriff, under a fieri 
facias against the bankrupt's goods, entered on the premises 
and stated that he took possession of the goods, but in fact 
left the bankrupt apparently in possession of them ; for the 
sheriff was not justified in seizing the goods, and therefore his 
assertion that he took possession had no effect in law. In the 
undermentioned case the sheriff, on behalf of an execution 



358 BANKRUPTCY. 

creditor, seized goods on which there was a registered bill of 
sale. Two days after the seizure by the sheriff, the debtor filed 
his petition, and the trustee in the liquidation took possession of 
the goods before possession was either demanded or taken by 
the holder of the bill of sale. It was held, that the wrongful 
seizure by the sheriff did not prevent the goods from being in 
the debtor's order and disposition, with the consent of the true 
owner, when he filed the petition, and that they, therefore, 
passed to the trustee. Bacon, C. J., in his judgment, said : " It 
is clear that the sheriff took possession under the execution 
before the petition was presented, and that he continued in 
possession for some days after, but then, as he took possession 
on behalf of an execution creditor when there was a registered 
bill of sale, such possession was wrongful, and could not be held 
to disturb that of the debtor." Ex parte Edey, In re Cuthbert- 
son, L. E. 19 Eq. 264 ; 44 L. J. Bank. 55 ; 31 L. T. 851. 



Effect of Bankruptcy on Antecedent Transactions. 

Restriction By the Bankruptcy Act, 1883, sect. 45, sub-sect. 1, "Where 

credit!^ 8 ° f i a cre( litor has issued execution against the goods or lands of a 
execution or debtor, or has attached any debt due to him, he shall not be 
entitled to retain the benefit of the execution or attachment 
against the trustee in bankruptcy of the debtor, unless he has 
completed the execution or attachment before the date of the 
receiving order, and before notice of the presentation of any 
bankruptcy petition by or against the debtor, or of the commis- 
sion of any available act of bankruptcy by the debtor." 
When exe- By sub-sect. 2, " For the purposes of this Act, an execution 

attachment against goods is completed by seizure and sale ; an attachment 
regarded as of a debt is completed by receipt of the debt ; and an execution 
against land is completed by seizure, or, in the case of an equit- 
able interest, by the appointment of a receiver." Where a 
sheriff has seized goods on behalf of an execution creditor, but 
is ordered before sale to withdraw in favour of a receiver in an 
action in the Chancery Division, the execution has not been 
" completed " within sect. 45, and the goods seized pass to the 
trustee in bankruptcy of the debtor. Mackay v. Merritt, 34 
W. R. 433 ; and see Ex parte Moore, In re Dickenson, 37 W. R. 
96 and 130; In re Dickenson, Ex parte Charrington, 22 Q. B. D. 



complete. 



EFFECT OF BANKRUPTCY ON ANTECEDENT TRANSACTIONS. 359 

10:} ; 58 L. J. Q. B. 1 ; and also Ex parte Brown, In re Hastings, 
61 L. J. Q. B. 654 ; 67 L. T. 234 ; 9 M. B. R. 234. But an 
order made against a debtor after land has actually been 
delivered by the sheriff, but before the return of the writ of 
elegit, does not oust the right of a judgment creditor, the 
" seizure " being " complete " within sect. 45, sub-sect. 2. In re 
Hobson, 33 Ch. D. 493 ; 55 L. J. Oh. 754 ; 55 L. T. 255 ; 34 
W. R. 786. 

As to sufficiency of notice of an act of bankruptcy, see Lucas Notice of 
v. Dicker, 6 Q. B. D. 84 ; 50 L. J. Q. B. 190 ; and In re ™ Pt ° c f y bank * 
McGowan, Ex parte Ashton, 64 L. T. 28 ; 39 W. R. 320. A 
sheriff, who after seizure receives notice in general terms that 
the execution debtor has committed an act of bankruptcy, may 
take reasonable time to inquire whether the statement is true 
before proceeding to sell, unless he is aware of circumstances 
which cause him to think that the notice is a mere pretence. 
Ayshford v. Murray, 23 L. T. 470. 

It is the duty of a sheriff's officer, who receives notice by Duty of she- 
telegram, purporting to be sent by solicitors in London, of an "n ^J^of 
injunction being granted by the Court to restrain a sale in the notice of 
country under an execution, to telegraph to the Court, or to the 
London agents of the sheriff, to ascertain whether an injunction 
has really been granted. This, however, is not the duty of the 
auctioneer who is conducting the sale ; he is only bound to 
communicate with the sheriff's officer who has instructed him 
to sell. Ex parte Langley, In re Bishop, 13 Ch. D. 110; 49 
L. J. Bank. 1 ; 41 L. T. 388 ; 38 W. R. 174. Where a sheriff's Liability for 
officer and an auctioneer proceeded with the sale of the property after notice. 
of a trader seized under a fi. fa. after they had received notice 
by letter from the debtor's solicitor that he had filed a liquidation 
petition, and had also received notice by telegram that the Court 
of Bankruptcy had made an order restraining further proceed- 
ings under the writ, it was held that the sheriff's officer and 
the auctioneer had been guilty of contempt of Court. In re 
Bryant, 4 Ch. D. 98 ; 35 L. T. 489 ; 25 W. R. 230. 

By sect, 11, sub-sect. 1 of the Bankruptcy Act, 1890 (b), Duty. if 
"Where any goods of a debtor are taken in execution and goods taken 
before the sale thereof, or the completion of the execution by inexecution 
the receipt or recovery of the full amount of the levy, notice is receiving 

order. 

(b) By this Act the corresponding provision (sect. 46, sub-sect. 1) of the 
Bankruptcy Act, 1883, is repealed. 



360 BANKRUPTCY. 

served on the sheriff that a receiving order has been made 
against the debtor, the sheriff shall, on request, deliver the 
goods and any money seized or received in part satisfaction of 
the execution to the official receiver, but the costs of the execu- 
tion shall be a first charge on the goods or money so delivered, 
and the official receiver or trustee may sell the goods, or an 
adequate part thereof, for the purpose of satisfying the charge." 
It is the duty of the sheriff in possession of goods taken in 
execution, when required under this section, to deliver them to 
the official receiver, notwithstanding pending interpleader pro- 
ceedings. In re Harrison, Ex parte Essex (Sheriff), [1893] 2 
Q. B. Ill ; 62 L. J. Q. B. 266 ; 68 L. T. 590 ; W. N. (1893) 
68. Under the provisions of this section it is still the duty of 
the sheriff to proceed with the sale, unless the official receiver or 
trustee requests that the goods be delivered up. WoolforcVs 
Estate v. Lev//, [1892] 1 Q. B. 772; 61 L. J. Q. B. 546; 66 
L. T. 812 ; 40 W. E. 483. Lord Esher, M. E., in that case 
said, " I think that, if no request is made, his [the sheriff's] duty 
to sell remains unaltered and unaffected by the receiving order. 
He must proceed with the execution and sell the goods ; but, 
when he has done so, the creditor is not to have the benefit, but 
the proceeds must be handed to the receiver or trustee less the 
expenses to which the sheriff is entitled." 
Costs of The costs of execution are limited to the date of the official 

receiver's notice, for any further costs of possession are no longer 
costs of execution. In re Harrison, Ex parte Essex (Sheriff), 
[1895] 2 Q. B. Ill ; 62 L. J. Q. B. 266; 68 L. T. 590; W. 
N. (1893) 68. The "costs of execution" do not include the 
sheriff's poundage. In re Ludford, Official Receiver v. War- 
wickshire (Sheriff), 13 Q. B. D. 415; 53 L. J. Q. B. 418. See, 
however, Smith v. Darlow, 26 Ch. D. 605 ; 53 L. J. Ch. 696. 
See also under the title " Interpleader" (" When Sheriff entitled 
to Costs " and " Appeal "),post, pp. 389, 395 ; as to costs of execu- 
tion, Ex parte Craijcraft, In re Browning, 8 Ch. D. 596 ; 47 L. J. 
Bank. 96 ; as to right to possession money where the receiving- 
order is made before sale, and delay of sale, In re Essex (Sheriff'), 
Ex parte Levy, 63 L. T. 29 1 ; 38 W. E. 784 ; 65 L. T. 466 ; 7 M. 
B. E. 125 ; and under the title " Sheriffs' Fees, &c," post, 
p. 505. Costs of the sheriff for harvesting corn taken in exe- 
cution, but not sold before notice of tho receiving order, are not 
"costs of: execution." In re Woodham, Ex parte Conder, 20 Q,. 
B. I). 40; 57 L. J. Q. B. 46. 



execution. 



EFFECT OF BANKRUPTCY ON ANTECEDENT TRANSACTIONS. ; j61 

In the undermentioned case a judgment debtor, against whom 
there was an execution in the sheriff's hands, had committed an 
act of bankruptcy of which the sheriff had notice and on which 
the judgment debtor was subsequently adjudicated bankrupt. 
The sheriff, notwithstanding such notice, sold the debtor's goods 
under the execution, deducted his poundage fees and expenses of 
the sale, and paid the balance to the assignees. It was held that 
the sheriff was not entitled to these deductions. In re Priestly, 
23 L. 11. Ir. 536. 

With due regard to the substitution of sect. 11, sub-sect. 1 Taxation of 
of the Bankruptcy Act, 1890, for sect. 46, sub-sect. 1 of the 
Bankruptcy Act, 1883, the following rule is apparently still 
applicable, viz. : — " In any case in which, pursuant to sect. 46, 
sub-sect. 1 of the Act [Bankruptcy Act, 1883], a sheriff is re- 
quired to deliver goods to an official receiver or trustee, such 
sheriff shall, without delay, bring in his bill of costs for taxation, 
which shall be taxed by the taxing officer of the Court having 
jurisdiction in the bankruptcy ; and unless such bill of costs is 
brought in for taxation within one month from the date when 
the sheriff makes such delivery, the official receiver or trustee 
may decline to pay the same." Bankruptcy Rules, 1886, 
Eule 118. 

By the Bankruptcy Act, 1890, s. 11, sub-s. 2(e), "Where Duty of 

-i !_• j n • n r. sheriff as to 

under an execution m respect of a judgment lor a sum goods taken 
exceeding twenty pounds, the goods of a debtor are sold or in execution 

•-!• i - -i i ;i i •»» i ii -■ i i ■ when judg- 

money is paid m order to avoid sale, the sheriff shall deduct his ment debt 
costs of the execution from the proceeds of sale or the money exceeds ° 01 - 
paid, and retain the balance for fourteen days, and if within 
that time notice is served on him of a bankruptcy petition having 
been presented against or by the debtor, and a receiving order 
is made against the debtor thereon or on any other petition of 
which the sheriff has notice, the sheriff shall pay the balance 
to the official receiver or, as the case may be, to the trustee, who 
shall be entitled to retain the same as against the execution 
creditor." Where the sheriff sells under an execution for more 
than 20/. and within fourteen days afterwards receives notice of 
a bankruptcy petition, the sale is not therefore rendered abso- 
lutely void, but the execution creditor is consequently deprived 
of the fruits of the sale, and they are transferred to the trustee 



(c) By this Ari the corr ispondiiig provi i 16, sub-sect. _' of the 

Bankruptcy Act, L888, is repealed. 



362 BANKRUPTCY. 

in the bankruptcy for the benefit of the general body of the 
creditors. Where, therefore, a sheriff is in possession under 
several writs, some for more and some for less than 20/., and 
proceeds to sell, the writs are payable in order of priority so 
long as there are funds to pay ; but if he receives notice of a 
bankruptcy petition within fourteen days after the sale, only 
those writs are entitled to be paid which are for less than 20/. 
and which would have been paid had not bankruptcy super- 
vened. In re Pearcc, Ex parte Crossthwaite, 14 Q. B. D. 966 ; 
54 L. J. Q. B. 316 ; and see Heatheote v. LwUsey, 19 Q. B. D. 
285 ; 56 L. J. Q. B. 645. 

The following authorities in relation to the corresponding 
section (87) of the Bankruptcy Act, 1869, indicate the meaning 
of an execution in respect of a judgment for a sum exceeding 
20/. ((/). In Ex parte Liverpool Loan Co., In re Bullen, L. R. 
7 Ch. 732 ; 42 L. J. Bank. 14; 27 L. T. 669, judgment having 
been entered up against a trader for 48/. 19s. 0d., and the 
sheriff having levied and sold goods of the debtor to the amount 
of 50/. lis. 0(7. (being the amount of the judgment with 
1/. 12s. 0r7. for the costs of the execution), it was held (affirming 
the decision of the chief judge) that the goods had " been taken 
in execution in respect of a judgment for a sum exceeding 50/. 
and sold" within the meaning of the Bankruptcy Act, 1869, 
s. 87, and that the proceeds must therefore be paid to the 
trustee in bankruptcy, and not to the execution creditor. This 
decision was followed in Hours v. Young, Ho/res v. Stone, 1 Ex. 
D. 146; 45 L. J. Ex. 499; 34 L. T. 739. And where, although 
the seizure was under an execution for an amount less than 50/., 
the amount for which the execution was ultimately levied 
exceeded 50/., owing to expenses including possession money 
incurred by the sheriff, the execution was held to be "an execu- 
tion in respect of a judgment for a sum exceeding 50/.," and 
the trustee was held entitled to the proceeds of sale. In re 
Fenton, Ex parte Lythgow, 10 Ch. D. 169 ; 48 L. J. Bank. 64; 
38 L. T. 886. But a creditor, who had sued a trader for a debt 
exceeding 50/., was entitled to abandon part of his claim, and to 
sign judgment for a sum less than 50/., so as to avoid the ope- 
ration of the 87th section. Ex parte Rei/a, In re Salinger, 6 Ch. 
D. 332 ; 46 L. J. Bank. 122 ; 37 L. T. 17. Moreover, a credi- 
tor who had sued a trader for a debt, and who had signed 

(d) 50/., the corresponding limit under the 1869 Act. 



EFFECT OF BANKRUPTCY ON ANTECEDENT TRANSACTIONS. 363 

judgment for upwards of 50/., might, by issuing execution for 
less than 50/., avoid the operation of that section. In re Sinks, 
Ex parte Berthier, 7 Ch. D. 882; 47 L. J. Bank. 64; 26 W. E. 
576. The fourteen days above referred to run from the date of 
the sale, and not from that of the sheriff's receipt of the proceeds. 
In re Cripps, Ross <$• Co., Ex parte Ross, 21 Q. B. D. 472 ; 58 
L. J. Q. B. 19 ; and see Jones v. Parsell, 11 Q. B. D. 430 : 52 
L. J. Q. B. 672 ; 49 L. T. 197, which, though a decision under 
the 1869 Bankruptcy Act, is presumably still applicable. 

By the case of Curtis v. Wainbrook Iron Co., 1 C. & E. 351, Notice to 
it was decided that the notice to be served on a sheriff of a bankfupw 
bankruptcy petition having been presented against or by the petition, &c. 
debtor, under sect. 46, sub-sect. 2 of the Bankruptcy Act, 1883, 
need not necessarily be in writing; but it is provided by Rule 13 
of the Bankruptcy Rules, 1886, that " All notices required by 
the Bankruptcy Act and Rules shall be in writing, unless the 
Rules otherwise provide, or the Court shall in any case other- 
wise order," and by Rule 92, that " Where notice of an order 
or other proceeding in Court may be served by post, it shall be 
sent by registered letter." The notice of a bankruptcy petition 
must be served on the sheriff or his recognized agent (such as 
the under-sheriff) for the purpose of receiving such notices ; it 
is not sufficient to serve it upon an ordinary bailiff or man in 
possession. Ex parte Warren, In re Holland, 15 Q. B. D. 48 ; 
54 L. J. Q. B. 320 ; and see Bellyse v. McGinn, [1891] 2 Q. B. 
227 ; 65 L. T. 318, where Ex parte Warren, In re Holland, is 
followed. 

A sheriff who has remained in possession for an unreasonable Sheriff's costs 
period at the instance of the execution creditor, and without the of P OSSOS!ilon - 
debtor's consent, was held not to be entitled under the corre- 
sponding section (46) of the Bankruptcy Act, 1883, to charge 
against the debtor the costs of retaining such possession beyond 
what was a reasonable time. In re Finch, Ex parte Essex 
(S/>erlf), 65 L. T. 466; 40 W. R. 175; 8 M. B. R. 284. 

By the Bankruptcy Rules, 1886, r. 119(f), "If the official Taxation of 
receiver or trustee shall, in writing, require any costs which a SSdiS' 8 
sheriff has deducted under sect. 46, sub-sect. 2, of the Act tion - 
[Bankruptcy Act, 1883] to be taxed, the sheriff shall, within 
seven days from the date of the request, bring in such costs for 



(e) This rule is, it is conceived, still applicable, subject only to the 
alteration effected by the Bankruptcy Act, 1S90, s. 11. 



364 



BANKRUPTCY. 



Liability of 
sheriff for 
paying- after 
notice of 
bankruptcy 
petition. 



Title of 
purchaser 
of debtor's 
goods. 



Sale to be by 
public auction 
if execution 
for more 
than 201. 



taxation, which shall be taxed by the taxing officer of the court 
having jurisdiction in the bankruptcy ; and any amount dis- 
allowed on such taxation shall forthwith be paid over by the 
sheriff to the official receiver or trustee, as the case may require." 

If, after he has received notice of a bankruptcy petition, the 
sheriff pays the proceeds of a sale to the execution creditor, it 
seems he will be liable to be sued by the trustee in an action for 
money had and received (Notley v. Buck, 8 B. & C. 160) ; but 
the sheriff will be entitled to bring an action against the execu- 
tion creditor to recover the money so paid. In the under- 
mentioned case, a creditor issued execution for a debt above 50/. 
and, after sale by the sheriff, issued another execution against 
the same debtor for another debt above 50/. The sheriff, having 
had no notice within fourteen days from the sale of any bank- 
ruptcy petition against the debtor, paid the money produced by 
the second sale to the execution creditor, but afterwards the 
debtor was adjudicated a bankrupt upon the act of bankruptcy 
committed by the seizure and sale under the first execution. 
It was held, that, though it was not proved that the creditor 
had, when the sale took place under the second execution, any 
actual knowledge that the sale had been made under the first, 
he must be deemed to have had notice of the proceedings under 
his own execution, and must therefore refund the money pro- 
duced under the second execution. Ex parte Daurs, In re 
Husband, L. E. 19 Eq. 438 ; 44 L. J. Bank. 62. The sheriff, 
on the other hand, will be liable to an action for damages by 
the execution creditor, if he has improperly paid over the money 
to the trustee. Ex parte Harper, In re Bremner, L. R. 10 Ch. 
379. 

By the Bankruptcy Act, 1883, sect. 46, sub-sect. 3, "An 
execution levied by seizure and sale on the goods of a debtor is 
not invalid by reason only of its being an act of bankruptcy, 
and a person who purchases the goods in good faith under a 
sale by the sheriff shall in all cases acquire a good title to them 
against the trustee in bankruptcy." 

By the Bankruptcy Act, 1883, sect. 145, " The sale under an 
execution for a sum exceeding twenty pounds (including legal 
incidental expenses) must, unless the Court from which the 
process issued otherwise orders, be made by public auction, and 
not by bill of sale or private contract, and must be publicly 
advertised by the sheriff on and during three days next pre- 
ceding the day of sale." See on this subject, Hunt v. Fensham, 



EFFECT OF BANKRUPTCY ON ANTECEDENT TRANSACTIONS. 365 

12 Q. B. D. 162, and under the title " Writ of Fieri Facias;' 
ante, p. 84. 

By the Bankruptcy Act, 1890, sect, 12, " Where any goods Application 
of a debtor are taken in execution, and the sheriff has notice of p r i va te sale, 
another execution or other executions, the Court shall not con- 
sider an application for leave to sell privately until the notice 
directed by rules of Court has been given to the other execution 
creditor or creditors, who may appear before the Court and bo 
heard upon the application." By the Eules of the Supreme 
Court under sect, 12 of the Bankruptcy Act, 1890 (Sales uDder 
Executions), Order XL1IL, "Every application under sect. 140" 
of the Bankruptcy Act, 1883, and sect. 12 of the Bankruptcy Act, 
1890, for an order that a sale under an execution may be made 
otherwise than by public auction shall be made by summons at 
chambers. Upon service of a copy of the summons on the 
sheriff he shall forward to the applicant a list (hereinafter called 
the sheriff's list) of the names and addresses of every person at 
whose instance any other writ of execution against the goods of 
the debtor has been lodged with him (rule 8). The summons 
shall contain a short statement of the grounds of the application 
(rule 9). Notice of the application shall be given by serving a 
copy of the summons four clear days before the day on which 
the summons is returnable : — (a) If the applicant is an execution 
creditor, upon the sheriff and upon every person named in the 
sheriff's list ; (b) if the applicant is the execution debtor, upon 
the execution creditor at whose instance the execution has been 
levied under which the sale is intended to be made, the sheriff, 
and every other person named in the sheriff's list (rule 10). On 
the hearing of the application the applicant shall produce to the 
Court or judge the sheriff's list (rule 11). The sheriff and 
every other person on whom the summons has been served may 
attend the hearing of the application and be heard in opposition 
to or in support of the application (rule 12). The Court or a 
judge may, at the hearing of any summons under these rules, 
direct that all or any part of the costs may be borne by any of 
the persons attending, or otherwise as may be just (rule 13). 
In these rules, 'sheriff' includes any officer charged with the 
execution of any writ of execution (rule 14)." 



366 



BANKRUPTCY. 



Small Bankruptcies. 

As to small bankruptcies, that is, where the assets are expected 
to be under 300/., see the Bankruptcy Act, 1883, s. 121. 



Certain pro- 
visions to 
bind Crown. 



Administra- 
tion in bank- 
ruptcy of 
person dying 
insolvent. 

Evidence and 
computation 
of time. 

Definition 
of word 
"sheriff." 



Supplemental Provisions. 

By the Bankruptcy Act, 1883, s. 150, " Save as herein pro- 
vided, the provisions of this Act relating to the remedies against 
the property of a debtor, the priorities of debts, the effect of a com- 
position or scheme of arrangement, and the effect of a discharge, 
shall bind the Crown." 

As to administration in bankruptcy of persons dying insol- 
vent, see the Bankruptcy Act, 1883, s. 125 (subject to the 
partial repeal thereof by the Bankruptcy Act, 1890), and also 
the Bankruptcy Act, 1890, s. 21. 

As to evidence, see the Bankruptcy Act, 1883, ss. 132 — 140, 
and as to computation of time, see sect. 141, sub-sect. 1. 

By sect. 168, the word " sheriff " in the Bankruptcy Act, 
1883, includes any officer charged with the execution of a writ 
or other process. But a man who seizes, keeps possession of, 
and sells the goods of a judgment debtor by a direction of the 
sheriff is not " an officer charged with the execution of a writ or 
other process," and therefore is not a " sheriff " within the 
meaning of sect. 168. Officers of the inferior courts charged 
with analogous duties are included. Ex parte Warren, In re 
Holland, 15 Q. B. D. 48; 54 L. J. Q. B. 320. 



II. Arrangements with Creditors. 
Statutory Arrangements. 

As to composition or scheme of arrangement with creditors 
under the Bankruptcy Acts, see the Bankruptcy Act, 1890, 
s. 3 (/), the Bankruptcy Act, 1883, ss. 19 and 23 (as qualified 



(/) Substituted for tlio corresponding section (IN) of the Bankruptcy 
Act, 1883. 



PRIVATE ARRANGEMENTS. 367 

by the Bankruptcy Act, 1890, ss. 6 and 29), the Debtors Act, 
1869, s. 15, the Bankruptcy Eules, 1886, rr. 267, 269, and 336, 
and the Bankruptcy Rules, 1890, rr. 18 — 38. See also In re 
Burr, Ex parte Board of Trade, [1892] 2 Q. B. 467; 61 L. J. 
Bank. 591 ; 66 L. T. 553 ;9M.B. R. 133. 



Private Arrangements. 

Under the present bankruptcy law, private deeds of arrange- Private deeds 
ment may be made between a debtor and his creditors, but such °| e ^Q°f e " 
deeds bind those creditors only who assent to them ; it is not Mud assent- 
necessary that such assent should appear by the creditor actually ° 
signing the deed, c. g., acting upon or accepting a benefit under 
the deed would be sufficient evidence of assent. See this subject 
discussed in Robson on Bankruptcy, 7th ed., p. 770. 

A voluntary assignment to trustees for the benefit of creditors How far 
is a revocable mandate by the debtor (In re Ashby, Ex parte ^°^ ble by 
Wreford, [1892] 1 Q. B. 872 ; 66 L. T. 353 ; 40 W. R. 430 ; 9 
M. B. R. 77) ; but, it seems, it is only revocable as against cre- 
ditors who are neither parties nor privy to the deed. Aeton v. 
Woodgate, 2 Myl. & K. 493. 

If a debtor makes a conveyance or assignment of his property Assignment 
to a trustee or trustees for the benefit of his creditors he there- foVbeuefit^of 
upon commits an act of bankruptcy, and it will be observed that creditors an 
the Bankruptcy Act, 1883, sect. 6, sub-sect. 1 (c) enacts that a ruptcy/ 
creditor shall not be entitled to present a bankruptcy petition 
against a debtor unless the act of bankruptcy on which the 
petition is grounded has occurred within three months before 
the presentation of the petition. But where a creditor has 
assented to, acquiesced in, or submitted to a deed of assignment 
for the benefit of creditors, he cannot afterwards rely on the 
execution of the deed as an act of bankruptcy. Ex parte 
Michael, 8 M. B. R. 305. An assignment is rendered void 
upon adjudication, and the property of the debtor thereupon 
vests in the trustee in bankruptcy. 

By sect. 4, sub-sect. 1 of the Deeds of Arrangement Act, 1887 Deeds of ar- 
(50 & 51 Vict. c. 57), "This Act shall apply to every deed of ^X^ol- 51 
arrangement, as defined in this section, made after the com- Vict. c. 57. 
mencement of this Act." By sub-sect. 2, " A deed of arrange- 
ment to which this Act applies shall include any of the following 



303 



ARRANGEMENTS WITH CREDITORS. 



Unregistered 
deeds of 
assignment 
to be void. 



Creditors may- 
sign deed 
after regis- 
tration. 



Mode of regis- 
tration, &c. 



instruments, whether under seal or not, made by, for, or in 
respect of the affairs of a debtor for the benefit of his creditors 
generally (otherwise than in pursuance of the law for the time 
being in force relating to bankruptcy), that is to say : — 

(a) An assignment of property ; 

(b) A deed of or agreement for a composition. 

And in cases where creditors of a debtor obtain any control 
over his property or business : — 

(c) A deed of inspectorship entered into for the purpose of 

carrying on or winding up a business ; 

(d) A letter of licence authorising the debtor or any other 

person to manage, carry on, realise, or dispose of a 
business, with a view to the payments of debts ; and 

(e) Any agreement or instrument entered into for the purpose 

of carrying on or winding up the debtor's business, or 

authorising the debtor or any other person to manage, 

carry on, realise, or dispose of the debtor's business, 

with a view to the payment of his debts." 

By sect. 5, " From and after the commencement of this Act a 

deed of arrangement to which this Act applies shall be void 

unless the same shall have been registered under this Act within 

seven clear days after the first execution thereof by the debtor 

or any creditor, or if it is executed in any place out of England 

or Ireland respectively, then within seven clear days after the 

time at which it would, in the ordinary course of post, arrive in 

England or Ireland respectively, if posted within one week after 

the execution thereof, and unless the same shall bear such 

ordinary and ad valorem stamp as is under this Act provided." 

Creditors may append their signatures to the deed after regis- 
tration. Ex parte Milne, 22 Q. B. D. 085 ; 58 L. J. Q. B. 333 ; 
57 W. R. 499; 5 T. L. R. 423. In that case the deed of 
arrangement was executed on the same day by the debtor, the 
trustee, and one creditor, and duly registered in compliance with 
the Act. Subsequently to such registration six other creditors 
signed and affixed their seals. It was held that the execution of 
the deed by creditors after registration did not amount to an 
alteration of the deed so as to avoid it or vitiate the registration 
of it ; and that the provisions of the Act were sufficiently com- 
plied with by the registration of the deed as it existed at the 
time of such registration. 

The other sections of the Deeds of Arrangement Act, 1887, 
provide for the mode and form of registration, the registrar, the 



VOLUNTARY OR FRAUDULENT DISPOSITIONS OF PROPERTY. 309 

office for registration, and other incidental matters. And see as 
to registration of deeds, transmission of copies to the County 
Courts, and searches and extracts, the Deeds of Arrangement 
Act Rules, 1888, W. N. (1888) p. 333, and in connection with 
the Deeds of Arrangement Act, 1887, In re Batten, Ex parte 
Milne, 22 Q. B. D. G85 ; 58 L. J. Q. B. 333. See also the 
Land Charges Registration and Searches Act, 1888, and as to 
deeds of arrangement, the Deeds of Arrangement Rules, 1890, 
W. N. (1890) p. 533. 



III. Voluntary or Fraudulent Dispositions of Property. 
By 13 Eliz. c. 5, conveyances of lands, tenements, heredita- Fraudulent 

COH V6V£iDC(?S 

ments, goods and chattels, made with a view to defrauding under i3EHz. 
creditors, are void as against such creditors, subject to a proviso c - 5 > V0ld - 
for conveyances made bond fide and on good consideration. 

A settlement, even for valuable consideration, made with the Settlements, 
intention of defrauding creditors, is void under this statute, defraud credi- 
The mere fact, however, of a settlement being voluntary is not tors > V0ld - 
sufficient to render it void against creditors ; but if the settlor 
was at the time of making the settlement — not necessarily in- 
solvent — but so largely indebted as to induce the Court to believe 
that the intention of the settlement was to defraud his creditors, 
and some of his debts are still unpaid, the settlement may be set 
aside. Holmes v. Penney, 3 Kay & J. 90. In order to make 
void a deed as fraudulent against creditors, it is not necessary to 
prove that the party was insolvent at the time, if it appear that 
the intention was to delay creditors. Richardson v. Smalhcood, 
Jac. 552. "It is not necessary to show, from anything actually 
said or done by the party, that he had the express design by the 
deed to defeat creditors ; but if he includes in it property to 
such an amount that, having regard to the state of his property, 
and to the amount of his liabilities, its effect might probably be 
to delay or defeat creditors, if the Court is satisfied of that, the 
deed is within the meaning of the statute." Per Kindersley, 
V.-C, in Jenkyn v. Vaughan, 3 Drew. 424; see also Thompson v. 
Webster, 4 Drew. G32 ; and Freeman v. Pope, L. R. 5 Ch. 538; 
but see the judgment of LordEsher, M.R., in Ex parte Mercery 
In re Wise, 17 Q. B. D. 298. 

m. n i! 



370 



VOLUNTARY OR FRAUDULENT DISPOSITIONS OF PROPERTY. 



Voluntary 
settlement, if 
settlor about 
to engage 
in hazardous 
business, may 
be set aside. 



Subsequent 
creditors 
participate in 
assets if deed 
set aside ; 

and they may 
bring - action 
to set aside 
settlement. 



Valuable 
consideration 
may be 
proved. 



Duty of 
sheriff under 
13 Eliz. c. 5. 



In order to set aside a voluntary settlement as being void 
against creditors, it is not necessary to show that the settlor 
contemplated becoming actually indebted. It is sufficient if he 
contemplated a state of things which might result in bankruptcy 
or insolvency, as e.g. if he were about to engage in business of a 
hazardous or speculative character, or if he was incurring heavy 
liabilities. Machay v. Douglas, L. R. 14 Eq. 106 ; Ex parte 
Basse//, In re Sutterworih, 19 Ch. D. 588 ; and Crossley v. 
Elworthy, L. E. 12 Eq. 158. 

Where a deed is set aside as fraudulent against creditors the 
property becomes assets and is applicable to the payment of 
debts generally, and all the creditors come in at whatever times 
their debts may have arisen. Richardson v. Small wood, Jac. 552. 

A voluntary settlement, whereby the settlor takes the bulk of 
his property out of the reach of his creditors shortly before 
engaging in trade of a hazardous character, may be set aside in 
a suit on behalf of creditors who became such after the settle- 
ment, though there are no creditors whose debts arose before the 
date of the settlement, and though when the settlement was 
made it was doubtful whether the arrangements, under which 
the settlor was to engage in the business, would take effect. 
Mackay v. Douglas, L. R. 14 Ch. 106. 

A deed of settlement which in form appears to be voluntary 
may be proved by extrinsic evidence to have been made for 
valuable consideration, and thus be good against creditors. 
Pott v. Todhunter, 2 Coll. C. 1\. 76. An obligation, which is 
voluntary as regards the person in whose favour it was originally 
created, ceases to be voluntary when it passes into the hands of 
other persons who have given valuable consideration for it. 
George v. Milbanke, 9 Yes. Jun. 193 ; Payne v. Mortimer, 1 
Giff. 118. 

"With regard to the sheriff's duty under 13 Eliz. c. 5, it has been 
decided by the case of Imray v. Magnay, 11 M. & W. 267; 12 
L. J. Ex. 188 ; 7 Jur. 240 (which was followed by Christopher- 
son v. Burton, 3 Ex. 160 ; 18 L. J. Ex. 60), that the sheriff is 
obliged, under a writ founded on a bona fide debt, to seize, or 
seize and sell, goods which have been fraudulently conveyed or 
assigned ; and that if he neglect to do so, having notice of the 
fraud at the time that he ought to have executed the writ, or 
if he could then have discovered it by reasonable inquiry, he is 
responsible for neglecting to seize and sell them, and an action 
lies against him. 



VOLUNTARY OR FRAUDULENT DISPOSITIONS OF PROPERTY. 371 

As to fraudulent transactions under 13 Eliz. c. 5, see further 
Tiri/i t f\ Case, Sm. L. C. Vol. I. pp. 1, et seq., and the recent case 
of In re Pennington, Er parte Cooper, 59 L. T. 774, affirmed by 
the Court of Appeal, W. N. (1888) 205 ; 5 T. L. R. 29. 

As to the bankruptcy provisions in relation to an act of bank- Fraudulent 
ruptcy being committed by a debtor who has made a fraudulent prefCrince^an. 1 
conveyance, &c. of property, or a fraudulent preference, see the acfc " f bank - 
Bankruptcy Act, 1883, sect. 4, sub-sect. 1, (b) and (c). 

By sect. 47, sub-sect. 1, "Any settlement of property not Avoidance of 
being a settlement made before and in consideration of marriage, settlements 
or made in favour of a purchaser or incumbrancer in good faith under Bank- 
and for valuable consideration, or a settlement made on or for 1883. 
the wife or children of the settlor of property which has accrued 
to the settlor after marriage in right of his wife, shall, if the 
settlor becomes bankrupt within two years after the date of the 
settlement, be void against the trustee in the baukruptcy, and 
shall, if the settlor becomes bankrupt at any subsequent time 
within ten years after the date of the settlement, be void against 
the trustee in the bankruptcy, unless the parties claiming under 
the settlement can prove that the settlor was at the time of making 
the settlement able to pay all his debts without the aid of the 
property comprised in the settlement, and that the interest of the 
settlor in such property had passed to the trustee of such settle- 
ment on the execution thereof." By sub-sect. 2, "Any covenant 
or contract made in consideration of marriage for the future 
settlement on or for the settlor's wife or children of any money 
or property wherein he had not at the date of his marriage any 
estate or interest, whether vested or contingent, in possession or 
remainder, and not being money or property of or in right of 
his wife, shall, on his becoming bankrupt before the property or 
money has been actually transferred or paid pursuant to the 
contract or covenant, be void against the trustee in the bank- 
ruptcy." By sub-sect. 3, " 'Settlement' shall for the purposes of 
this section include any conveyance or transfer of property." 
See Ex parte Todd, In re Askcrqft, 19 Q. B. D. 18G ; 56 L. J. 
U. B. 431 ; 35 TV. R. 676. 

By sect. 48, sub-sect. 1, " Every conveyance or transfer of pro- Avoidance of 
perty, or charge thereon made, every payment made, every J^^ ffl 
obligation incurred, and every judicial proceeding taken or 
suffered by any person unable to pay his debts as they become 
due from his own money in favour of any creditor, or any person 
in trust for any creditor, with a view of giving such creditor a 

B 1? 2 



S72 VOLUNTARY OR FRAUDULENT DISPOSITIONS OF PROPERTY. 

preference over the other creditors shall, if the person making, 
taking, paying, or suffering the same is adjudged bankrupt on a 
bankruptcy petition presented within three months after the date 
of making, taking, paying, or suffering the same, be deemed 
fraudulent and void as against the trustee in the bankruptcy." 
By sub-sect. 2, " This section shall not affect the rights of any 
person making title in good faith and for valuable considera- 
tion through or under a creditor of the bankrupt." To bring a 
transfer of personal property within the above section, it must 
be apparent from the nature and circumstances of the trans- 
action that the intention of the transferor was that the property 
transferred should permanently remain in the transferee. In re 
Vansittart, Ex parte Brown, [1893] 1 Q. B. 181 ; 62 L. J. Q. B. 
277. 
Voluntary With regard to 27 Eliz. c. 4, as amended by the Voluntary 

mKier^Ellz. Conveyances Act, 1893 (56 & 57 Yict. c. 21), the object of which 
c - 4 - is to protect subsequent purchasers or mortgagees against prior 

voluntary conveyances, in the case of a voluntary settlement the 
settlor's subsequent judgment creditors cannot, it appears, acquire 
rights in derogation of it which he would not have possessed. 



373 



Chapter XXVI. 

INTERPLEADER. 

PAGE 

I. Introductory -------- 373 

Genera! 373 

When Sheriff relieved 377 

When Sheriff not entitled to Relief - - - -379 

II. Procedure 381 

Application -------- 381 

Hearing 382 

Issue 386 

Judy mod -------- 387 

Costs 388 

(1) Preliminary 388 

(2) When Sheriff entitled to Costs - - -389 

(3) When Sheriff' not entitled to Costs - -391 

(4) When Sheriff to pay Costs - - - 393 

(5) When Each Party to pay h