Or, demised to another. Dy. 67. b. in marg. (y)

Nor goods taken, and in custody of the sheriff, upon a former execution. R. Sho. 173. R. 3 Mod. 236. (~)

So he cannot take the goods of a stranger (a): for he is to take (b) the goods of the party (c) only, at his peril. (d)

And

(y) 1. Bro. Abr. Pledges, pl. 24.-2. But subject to the right of the pawnee or lessee, the goods may, it seems, be taken in execution. Ibid. Etiam Id. Execution, pl. 107.

(2) Nor goods distrained. Bac. Abr. Exec. 352. Et vide Willes, 131.

(a) 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 had agreed to give for it. 1 Mars. 10.

(b) 1. If he doubt whether the goods shewn him are the defendant's, he may summon a jury de bene esse, to satisfy himself. Dalt. Sheriff, 146. Gilb. Exec. 21. Bac. Abr. Exec. 552. 4 T. R. 633. 648. 7 T. R. 177. — 2. This will justify the sheriff in returning, if it be so found, that the defendant has no goods within his bailiwick; or if it be found that he has, will mitigate damages in an action of trespass, provided the goods should afterwards turn out not to be the defendant's. Tidd, 995. 3. And as this is not a proceeding immediately from the court, but merely to indemnify the sheriff in making his return to the writ, the court will not set aside the inquisition of a jury summoned by the sheriff to inquire in whom the property of goods seized by him under in fi. fa. is vested. 6 T. R. 88. Tidd, ibid. 4. But this proceeding of the sheriff is not conclusive in any case; for inquests of office are always traversable, and therefore an inquisition made by the sheriff's jury, to ascertain to whom the property of goods taken under a fi. fa. belonged, though found in favour of A., is not admissible evidence in an action of trover for the goods, brought by A. against the sheriff. 2 H. B. 457.

(c) 1. On a fieri facias against a husband, it seems that the sheriff cannot take in execution goods fairly vested in trustees, under a settlement before marriage, for the benefit of the wife. Čowp. 432. Et vide Co. Litt. 351. a. n. (1). Sed vide 2 Vern. 239. -2: Therefore where a woman before marriage, with the consent of her intended husband, conveyed all her stock in trade and furniture to trustees, to enable her to carry on her trade separately; it was holden, that if the husband did not intermeddle therewith, and there was no fraud, such effects, though fluctuating, were not liable to be taken in execution for his debts. 3 T. R. 618. Et vide ibid. 620. n. 8 East, 477. 479.-3. And a settlement after marriage would, it seems, have the same effect, if made in consequence of a prior agreement. 1 Eq. Abr. 148. 4. Or for a good and valuable consideration, and without fraud. 8 T. R. 521. Et vide 6 East, 257. — 5. It is no objection to the settlement in these cases that there is no inventory of the goods. 3 T. R. 618. Sed vide Cowp. 439. 6 East, 257. - 6. And the possession of that husband, if consistent with the deed, will not subject them to an execution for his debts, provided it be satisfactorily proved, that they were really and bona fide conveyed to a third person, as a trustee for his wife, and possession taken by such third person. 2 Esp. C. 574. Cowp. 432. 3 T. R. 620. n. — 7. But where the settlement is fraudulent the goods are not protected. 6 East, 257. 8. So where the husband is suffered to carry on the trade intended for his wife; and his possession is not consistent with the deed. 3T. R. 618. 8 T. R. 82.-9. And it is settled, that a term vested in the wife before marriage, and which the husband is entitled to in her right, may be taken in execution for the husband's debt. 4 T. R. 638. 9 Tidd, 996, 997.-10. Where a woman has passed as a married woman, and given herself out as such, and been accordingly reputed, and has goods in the house of the man with whom she cohabits, and is ostensibly his wife, and the goods ostensibly his, neither he nor she shall say, upon the goods being taken in execution by a creditor for a just debt, that she is not his wife, and the goods not his. Lofft. 782.-11. Goods of the testator in the hands of the executor are not the executor's own property, and therefore cannot be taken in execution for his debt. 4 T. R. 621.- 12. But if an executor treat the goods of his testator as his own property, they may be taken under an execution against him individually. 1 B. & P. 293. — 13. So if the husband of an executrix treat goods belonging to the estate as his own, they may be taken in execution for his debt. 1 B. & P. 293.

(d) 1. And though there has been a fraudulent sale of defendant's property, yet if it

has

And if there are joint partners, and execution against one; the sheriff can take (e) only his (ƒ) share. R. Sho. 174. Can sell only his part, (g) though he ought to seize (h) the whole. R. 1 Sal. 392.

So, if execution be upon a judgment against a corporation, he cannot take the goods of a member of the corporation, which he has in his natural capacity; but the goods of the corporation only. 1 Rol. 920. L. 50.

(C 5.) How the sheriff shall proceed upon it.

After a fieri facias delivered to him, the sheriff may enter the house of the defendant, when the door (i) is open, and seize (k) the goods of the defendant there found. R. 5 Co. 92. a.

has afterwards been sold bona fide to another, it cannot be touched in the hands of the second vendee. Godb. 161. 2. But otherwise the sheriff may take any goods which have been fraudulenly sold, or conveyed away by the defendant; and a principal badge of fraud is, the defendant's continuing in possession. Gilb. Ex. 15.-3. For if a man sell goods, and still continue in possession as visible owner of them, such sale is fraudulent and void as against creditors. Pr. Ch. 286, 287.-4. So if a creditor by f. fa. seize the goods of his debtor, and suffer them to remain long in the debtor's hands, and another creditor obtain a subsequent judgment and execution, it has been determined often, that this is evidence of fraud in the first creditor, and the goods in the hands of the debtor remain liable. Ibid. 1 Ves. 245. 456. 5. So where it

was proved, in an action for a false return, that the warrant upon a fieri facias was directed to three persons as special bailiffs; that the plaintiff's attorney was present at the time of executing it, and ordered one of the persons to use the defendant kindly, and not to take away any of his household goods, for that his landlord would soon be in the county, and pay the debt, and thereupon another of the persons rode round the farm and grounds, and said I seize all this corn and cattle,' and took some account thereof for the use of the plaintiff'; afterwards the landlord sued out a fieri facias, and the sheriff's bailiff not being in possession of the goods under the former writ, nor having left any body for them, he got his execution executed; and there was no proof, that he promised to pay the plaintiff: it was left to the jury, upon this evidence, whether the first execution was intended to be, or was really executed; and the jury thought it was not, and gave a verdict for the sheriff which was afterwards confirmed by the court, on a motion for a new trial. 1 Wils. 44. Et vide 1 H. Bl. 543. Tidd, 992.6. A debtor, however, unless prohibited by the bankrupt laws, may, from whatever motive, prefer, by assignment or payment, one creditor or particular creditors, if he does so in payment of his or their just demands, and not as a mere cloak to secure the property to himself. 5 T. R. 235. 420.-7. And goods of which the defendant is ostensible owner, with the real owner's consent, cannot be taken under an execution against him. 3 Taunt. 256. - 8. If the party at whose suit a sequestration out of: chancery is issued, take no measure to compel the execution of it in due time, and the sequestrators do not in fact possess themselves of the goods, it is no excuse to a sheriff, to whom, at a distance of eighteen months, a writ of fi. fa. is directed against the goods of the party defendant in the suit in chancery, for not executing such writ, and selling the goods; the plaintiff in the sequestration having at all events lost his priority by such laches; and therefore the sheriff, who had seized goods under the fi. fa., having on notice of such supposed obstacle, returned nulla bona, was held liable to the plaintiff in an action for a false return. 4 East, 323.

(e) He must seize all the joint property, because the moieties are undivided. 1 Salk. 392. Et vide Comb. 217. Comb. 277. 1 Ves. 259. Cowp. 449. 1 East, 367. 4 Ves. 396. (f) 1. Where three partners (two of whom resided abroad and one in England) were sued for a partnership debt, and the partner resident in England appeared to the action, but refused to appear for the partner who resided abroad, the sheriff, under a distringas against the two partners, might have taken partnership effects, though paid for by the partner resident in England alone, to whom the partnership was largely indebted. 3 B. & P. 354. 2. Vide 51 G. 3. c. 124. s. 2., as to a distringas.

(g) Ld. Ray. 871. 1 Show. 169. Dougl. 650. 3 B. & P. 288.

(h) Supra.

(4) That is, the outer inlet to the house; as a door or window opening to the street. 18 Edw. 4. Easter, 19. pl. 4. Moore, pl. 917. p. 668. W. Jones, 429.

Or,

Or, the house of a stranger. Semb. 5. Co. 92. 2 Cro. 486. Cro. EL 759. 909. Vide post, (C 12.)

And this, by night or by day, if the door be open. Semb. 5 Co. 92. 2 Cro. 486.

But if it be the house of a stranger, he ought to aver that the goods were there. Semb. Lut. 1434.

If the house be open, and the sheriff enters, he may afterwards. break (1) an inner door to take the goods. R. Pal. 54. (m)

And he need not aver that the goods were there. Pal. 54. (n) (0) So, if the goods of A. are conveyed into the house of B. to avoid an execution, the sheriff upon a fieri facias against A. may break the house to make execution. R. 5 Co. 93. a.

So, if the sheriff, &c. enters, and takes goods in execution, and the party locks up and imprisons the bailiffs, &c. in the house; the sheriff may break the house to deliver the bailiffs. R. 2 Cro. 556. Pal. 53. 2 Rol. 137.

So the sheriff may make sale of goods in execution, without any appraisement of them.

So he may, though a supersedeas be delivered to him after the goods were seized into his hands. Per 2 J. Mo. 542.

If, upon sale by the sheriff, money remains in his hands beyond the debt, the sheriff may keep it till the defendant demands it, and need not deliver it to the defendant before request. R. Noy, 59. But the sheriff cannot break a house to make execution upon goods, or body. R. 5 Co. 92. Cro. El. 909. Mo. 668. Yel. 28. (p) Neither can he open the door, though it be only latched.

Or knock, and when'the door is a little opened, thrust in with violence. R. Hob. 62.

Nor use a capias utlagatum to execute a latitat. R. Hob. 263.

(k) 1. A. seizure of part of the goods in a house in name of the whole, is a good seizure of all. Ld. Ray. 725.-2. Where a sheriff after a fi. fa. delivered to him, pays the plaintiff out of his own money, it is made a question by Hobart, whether the sheriff may levy the money on the defendant. Hob. 207.

(1) Trunks, &c. 2 Show 87.

(m) 1. 1 Brownl. 50. 2 Rol. Rep. 137. 2. So that he may force open the door of a lodger's apartment opening to the stairs or passage. Cowp. 1.-3. And it has been held, that a sheriff having entered at the open door of a house, may, without a previous demand of admission, force open the inner doors in order to seize goods which are within them. 4 Taunt. 619. 4. However there is an ancient case which seems to oppose this doctrine, and which was not quoted in the argument in the more recent Hob. 263. Vide 3 B. & P. 229.

one.

3 B. & P. 223.

(n) This was the house of the defendant himself. (0) 1. 2 Rol. Rep. 137. 4 Taunt. 619. 2 H. Bl. 120. - 2. The sheriff under a fieri facias against one deceased, may enter the house of his executor, on reasonable grounds for believing that testator's goods are within, though they are not. 1 Mars. 333. 5 Taunt. 765. 3. But, generally speaking, an entry into the close of one man to seize the property or person of another, will not be justifiable, unless it turns out, that they were concealed therein at the time. Cro. Eliz. 759. Vide 2 Wils. 291. 4. Though if one man has allowed another to use his house as his own, by residing therein, it may be accounted the house of the latter. 2 H. Bl. 120. (p) 1. 18 Edw. 4. 4. pl. 19. Gilb. Ex. 17. 18. Cowp. 1.-2. Though it has been closed for the express purpose of excluding him. Cro. Eliz. 908.-3. And the reason assigned for thus privileging an outer inlet is, that otherwise the family within doors would be left naked and exposed to robbers from without. Cowp. 1,

Nor

Nor take several different chattels, when one is sufficient for the debt. R. Noy, 59.

So the sheriff ought not to deliver goods taken in execution to the plaintiff himself; but ought by sale to levy the debt. R. Cro. El. 504. So he ought not to redeliver them to the defendant, if he pays only part of the debt. Semb. 2 Vent. 94.

So he cannot detain them till the money to be levied, and also the charge of keeping them, be paid; for though the sheriff may make immediate sale, and the keeping is in favour of the defendant, for which he ought to make amends, yet this should be by agreement, and not by detainer till satisfaction. Semb. Lut. 1446.

Yet after the money levied, the sheriff may pay it to the plaintiff. Dub. 3 Lev. 204.

(C 6.) How he shall sell.

When the sheriff has taken goods in execution, he may, (q) sell them, without other direction. Mod. Ca. 295.

Though his office be determined before the sale. Mod. Ca. 299. R. 1 Rol. 893. 1. 50. (r)

So he may sell a term (s) for years. 4 Co. 74. (t)

And it is sufficient (u) to recite, that the party was possessed de termino diversorum annorum, without shewing the commencement, or end of the term. R 4. Co. 74. a. (x)

And if he mistakes the date of the term, if the bill of sale has general words, viz. All the defendant's interest, &c. it is sufficient. R. 4 Co. 74. a.

And a sale by the sheriff continues good, though the judgment be afterwards reversed. R. 5 Co. 90. b. R. 2 Cro. 246.; for the money

(g) 1. Upon a fieri facias the sheriff cannot deliver the goods, though he may sell them, to the plaintiff. Ld. Raym. 346. Cro. Eliz. 504. Lutw. 589. Comb. 452. Carth. 419.-2. And in the case last cited, it was admitted to be the practice to make a bill of sale of the goods to the plaintiff.—3. But though such be the practice, it is not part of the duty of the sheriff to execute a bill of sale to the plaintiff at an appraised value, nor is he compellable to do so, though he even promised it; for this might be very inconvenient, and highly injurious, if it were allowed. Cowp. 406.-4. The sheriff, though he pays the plaintiff out of his own money, cannot keep the goods to his own use, for the authority by which he acted was to sell the goods. Noy, 107. Lutw. 589.

(r) And this without a venditioni exponas. Cro. Jac. 73. Yelv. 44. Salk. 325. 1 Ves. 196.

(s) 1. An equitable interest in a term cannot be taken under a fi. fa. 8 East, 467. 2 N. R. 461.-2. Not therefore an equity of redemption. 3. Atk. 200. 739. -3. And plaintiff's only remedy is to file a bill for redemption, by paying off incumbrances. Ibid. - 4. Though to entitle him to redeem he must first take out a writ of execution against defendant. 3 Atk. 200.

(t) 1. It is said that if a sheriff on a fi. fa., sell a lease or term of a house, he cannot legally put the party out of possession, and the vendee in; but the vendee must bring his ejectment. 2 Show. 85.-2. This, however, must be understood of a forcible expulsion; for it has been determined that under a fieri facias, the sheriff may justify expelling the defendant peaceably. 3 T. R. 292.-3. If the defendant, subsequent to the delivery of the writ to the sheriff, make an assignment of a leasehold estate, the judgment creditor need not bring a suit in equity to come at the estate, by setting aside the assignment; but may proceed at law to sell the term, and the vendee, who is generally a friend of the plaintiff, will be entitled at law to the possession, notwithstanding such assignment. 3 Atk. 739. Tidd, 990.

(u) And the better course, since if he attempt to state the interest particularly and fail, the vendee will not have a good title. 4 Co. 74. Cro. Eliz. 584. 3 T. R. 294. r) Cro. Eliz. 584. 3 T. R. 292. 8 East, 475.

VOL. IV.

only shall be restored. R. Dy. 363. a. If the sale was to a stranger. Yel. 180. Otherwise, if the sale be upon an elegit. Vide post, (C 14.) But a sale of a term by the sheriff, who mistakes the date, &c. shall be void. R. 4 Co. 74.

(C7.) How he shall make the return.

The sheriff need not (y) return a writ of fieri facias. Vide Retorn, (F 1, &c.)

But if the sheriff returns, (z) goods seised to the value of the debt, he shall answer (a) for such value to (b) the plaintiff. Mod. Ca. 299. 1 Sal. 323. R. 1 Sid. 407.

the

Or debt (c) lies against him for the money. Vide Dett, (A 9.) Though they be afterwards rescued from him; for he cannot return rescous. Mod. Ca. 296. 299. R. 2 Rol. 57. (d)

(C 8.) Venditioni exponas.

If the sheriff returns, remanent pro defectu emptorum, (e) the

plaintiff

(y) 1. This means, that making a return to a fi. fa. unlike the case of mesne process, is not essential to enable the sheriff to justify under it. Vide supra. 2. For upon the return-day of the fieri facias, the sheriff may be called upon by rule to return the writ; which if he neglects, without offering a reasonable excuse, he is liable to an attachment. 1 H. Bl. 545.-3. If, however, the property of the goods be disputed, which frequently happens on a commission of bankrupt, &c., the court on the suggestion of a reasonable doubt, will enlarge the time for the sheriff's making his return, till the right be tried between the contending parties, or one of them has given him a sufficient indemnity. Semple v. Lord Newhaven, Tidd, 1000., et vide 2 Blk. 1064. 1181. -4. And accordingly the court, upon the sheriff's application, enlarged the time for his making a return to a writ of fieri facias, upon suggestion of a reasonable doubt, whether the goods seised under the writ were not covered by an extent, afterwards issued at the suit of the crown for malt duties; for the purpose of inducing the plaintiff to go into the court of exchequer, and there contest the question of right with the crown, in a more eligible manner than in the king's bench. 7 T. R. 174.-5. So the return to a fi. fa. will be enlarged, where an extent having issued at the suit of the crown, the sheriff is in doubt which execution is entitled to priority, and is litigating the question in the exchequer. 1 Taunt. 120.

(2) The returns commonly made by the sheriff to a fieri facias are first, nulla bona, which is either general, that the defendant has no goods in his bailiwick whereof he can cause to be made the sum directed to be levied, or any part thereof; or special, with this addition, that the defendant is a beneficed clerk, having no lay fee within his bailiwick; or being an executor or administrator, that he has wasted the goods of the testator or intestate. Secondly, fieri feci, or that the sheriff has caused to be made, of the defendant's goods, the whole or a part of the money, which he has ready to be paid to the plaintiff. Thirdly, that he has taken goods of the defendant to a certain amount, which remain in his hands for want of buyers. Or fourthly, that he has made his mandate to the bailiff of a liberty, who has given him no answer, or returned nulla bona. Tidd, 1001.

(a) By rule of court.

(6) 1. The money it is said, should, in strictness, be brought into court. 3 Bac. Abr. 391.-2. For it is not of record without. Godb. 147. 3. But the law seems otherwise; for though the writ be ita quod habeas, &c. yet the sheriff may return that he hath paid the money to the plaintiff. 2 Show. 87. 3 Lev. 204.

(c) Account, or assumpsit; even though no return be made. Cro. Car. 539. 2 Show. 79. 281. Gilb. Ex. 25.

(d) 1. As to testatum writs, vide in Process, (E 7.)- 2. On a return of nulla bona to the first fi. fa. the plaintiff may have an alias, &c. into the same county.

(e) 1. The sheriff may sell a leasehold estate, which he has seised under a fieri facias, after the return of the writ, and without any writ of venditioni exponas. For the property of the sheriff continues till the execution is completed, which cannot be till sale of the things taken in execution, and payment of the money to the plaintiff. This