ToVin. 555. (T) Against whom it may be fued. 10 Vin. 558. Feme of the Baron. Against the 1. TRESPASS and affault against baron and feme; verdict for the plaintiff, and execution againft both, and the feme taken in execution; upon motion to discharge her the court faid, that the wife was well in execution, and ought not to be difcharged. Cooper v. Old & Ux. Eaft. 13 Ann. Pract. Reg. C. B. 208. 2. Both baron and feme were taken in execution, and the court refused to discharge her. Berryman v. Gilbert & Ux. Eaft. 12 G. 2. Pract. Reg. C. B. 209. S. C. Pract. I. 210. Rep. C. P. C. B. 79. (X) To what Place it fhall be awarded. JUDGM UDGMENT was obtained in the county of Middlesex, and a fi. fa iffued into that county, and was returned nulla bona; and thereupon a fi. fa. was iffued into London, but was not made a tejlatum. And the court being moved to fet afide the latter writ, refused fo to do, being of opinion that the award of the teftatum fi. fa. upon the roll was fufficient to warrant the fi. fa. into London. Oates v. Foreft, Mich. 6 G. 2. Barnes, 196. Pract. Reg. C. P. 212. S.P Bond v. Jacobs, Trin 8,& 9 G 2. S. C. Pract. Reg. C. B. 212. In cafe of a test. fi. fa. 2. Motion to fet afide a writ of teftatum fi. fa. issued immediately after judgment, and before a fi. fa. returned and filed to warrant it; upon a rule to fhew caufe, a fi. fa. was produced, returned in the proper county, and the rule was discharged. Bond v. Jacobs and others, Trin. 8 & 9 G. 2. 2 Barnes, 200. into a nice inquiry when the fi. fa. in the original county to warrant the flatum was fued out; it is fufficient if the first fi fa. returned be produced. Burdus v. Satchwell, H. 18 G. 2. Barnes, 203. Sed vide Smith & Ux. v. Phripp, Mich. 20 G. z. Barnes, 209. femb. contr. the court will not go After a teftatum fi fa executed, and notice of motion to fet it aside, there being no fi. fa. into the original county to warrant it, a fi. fa. was fued out and returned, which the court held fufficient. Sweetapple v Atterbury, Trin. 22 & 23 G. 2. Barnes, 211. Upon an application to the court of K. B to fet afide a a teftatum fi. fa. and have the goods restored to the defendant for irregularity, the plaintiff not having sued out a fi fa. to warrant the teftatum; the court, after con'ulting with the Mafter, faid, that according to the established practice the want of an original fi. fa. was a decifive objection, though the irregularity might be cured by a subsequent production of that writ. Brand v. Mears, Trin. 29 G. 3. 3 Term Rep. B. R. 88. The action was in the Common Pleas at Lancaster, but the record was removed by writ of error into the King's Bench, which being non proffed there, the plaintiff fued out of that court a writ of fi. fa. on the judgment, directed to the fheriff of Surrey. Upon a motion to set the writ afide, it was objected that this should have been a reflatum, to meet which an original fi. fa, to warrant the writ into Surrey was produced, which it was contended was fufficient to induce the court to permit an amendment. And the court were of that opinion, and gave leave to amend on payinent of cofts. Cowperthwaite v. Owen and another, Eaft. 30 G. 3 3 Term Rep. B. R. 657. The court were applied to for a rule to fet afide a teft. ca, fa. because there was no original ca. fa. to warrant it, pending which the plaintiff applied for another rule to fue out and feal an original ca fa. to warrant the teflatum, and it was fa d that the original was actually entered on the record with its return by the sheriff. The first rule was difcharged, and the fecond was made abfolute without payment of cofts. Shaw v. Maxwell, Mich 36 G. 3. 6 Term Rep. B. R. 450. The plaintiff may cure of the objection even after the writ of error brought, per cur. in Milftead and Coppard, East. 33 G. 3. 5 Term Rep. B. R. 272. 3. Motion 3. Motion to quafh a writ of ca. fa. directed to the sheriff of London, and to discharge the defendant, because the judgment is upon a record in Wilts, and no teftatum or fuggeftion that the defendant had been commorant in London; which was ruled with cofts, no roll being yet made up to amend it by. Allen v. Allen, Eaft. 10 G. 3. Blackst. Rep. 694. (Y) What Things may be put in Execution. 10 Vin. 560. ¡OTHING can be taken in execution that cannot be fold, S. C. Cunn. as deeds, writings, &c. Francis v. Nafb, Trin. 7 G. 2. 51. Rep. temp. Hardw. 53. 2. Bank notes, &c. cannot be taken in execution; for, though S. C. Cunn. they are affignable over, yet, notwithstanding they remain in 51. fome meafure chofes in action, and the fheriff or his bargainees cannot bring an action on them without affignment; notwithftanding the act (5 W. & M. c. 20. f. 29.) for afligning them, yet they are fo much things in action, that it was neceflary to have a new act in order to make the ftealing of them felony. Francis v. Nafh, Trin. 7 G. 2. Rep. temp. Hardw. 53. 3. If an execution be fraudulent, a fecond, at the fuit of another plaintiff, fhall have the preference. Whether the first execution were fraudulently executed or not, is matter of evidence to be left to a jury. Bradley v. Wyndham, Hil. 17 G. 2. I Wilf. 44. he for a ule to not retain in his hands for the ufe of the plain it a fum of 4. The defendaut being taken upon a ca. fa., paid the fheriff The court the fum mentioned in the writ; B., to whom the plaintiff had was moved affigned the judgment, applied to the fheriff for the noney; but thew caufe he declined paying it over until te writ was returnable. At the why the the return, the sheriff returned that he took the defendant, who paid riff should him the money; and that afterwards, and before the return, a fi. fa. against the goods of the plaintiff, at the fuit of the defendant, as an executor, was delivered to the fheriff, and that levied the fame out of the money in his hands, which, with poundage, exceeded the money received under the ca.fa. thereupon applied to the court, and obtained a rule for the sheriff to pay him the money received under the ca. fa, deducting only the poundage. Staple v. Bird, Trin. 32 & 33 G. 2. Barnes, 214. in which he was plaintiff. The ground of the motion was, that the plaintiff had not been able to levy on the effects of the fe en tant to the amount of his demand. The rule was only oppofed fo ta- as that the attorney's bil in the caufe, in which the money had been levied, fhould be paid in the first place, and with that qualification it was made ablolute. Aruidead v. Philpot, Trin. 19 G. 3. Doug. 231. B. money which he had levied for the pre fent defendant in an other action, Aflignee, 5. After execution on a warrant of attorney the defendant Vide Raines, became a bankrupt. The affignees, upon a fuggestion that an &c. v Nelact of bankruptcy had been committed by the defendant previous fon, Blackft. to the figning of the judgment, moved that the goods taken in 181. execution fhould remain in the hands of the therill, fubject to the further order of the court. But the court refused to interfere, the application not coming on the part of the fheriff, but left Shew 6. By an indenture made between A. and C., reciting that A. was indebted to C. in 460. upon judgment, that C. had agreed to advance him 207. more, and pay him an annuity of 25 l. per ann., A. affigned to C. the poffeffion of a farm and certain crops, cattle, c. A fi. fa. iffued against the effects of C., and under it the theriff took poffeffion of thefe crops, cattle, &c., but afterwards returned nulla bona to the writ. Upon an action for a false return, the queftion turned upon this, Whether the indenture was void or not? it not having been inrolled under the annuity act; and, confequently, Whether the goods taken under the execution against C. were the goods of C. or not? And it was held, that the deed, for want of being inrolled, was void in point of law, and that the fheriff made a proper return. Crossley v. Arkwright, Trin. 28 G. 3. 2 Term Rep. B. R. 603. 1oVin. 566. (A. a) To what Time it fhall relate for Chattels. What Goods fhall be put in Execution. I. A Fi fa. upon a judgment iffued against the defendant, who, upon hearing of it, went and shot himself; after his death the writ was delivered to be executed by the fheriff, and held well. Springer v. Somerville, Mich. 3 G. 2. Bunb. 271. 2. If the plaintiff or defendant be alive after the execution taken out, and die before executed, yet it may be executed before the continuance or return day. Anonymous, Eaft. 11 G. 2. Pract. Reg. C. B. 215. 3. The fheriff under a fi. fa. feifed a leafehold eftate for 99 years, but made no fale thereof till after the return of the writ of execution, then fold it; but there was no continuance of the writ of execution, nor any writ of venditioni exponas. The question was, Whether the fale by the fheriff was regular by virtue of the writ of execution, fo as to convey a good eftate in point of law to the purchafer? And Lord Hardwicke held that the fale was good, though after the return, and did convey the eftate to the purchafer, and that a writ of venditioni exponas was unneceffary. The fheriff has a fpecial property in the goods feifed. And the goods, by being lodged with the fheriff, are bound from the delivery of the writ by the ftatute of frauds, in the cafe of a common perfon. Jeanes v. Wilkins, Hil. 20 G. 2. 1 Vef. 195. 4. Where an execution by elegit or fi. fa. is lodged in a fheriff's hands, it binds goods from that time, except in the cafe of the crown; and a leafehold eftate is alfo affected from that time; and, if the debtor fubfequent to this makes an affignment of the leafehold eftate, the judgment creditor need not bring a fuit in 13 ejectment ejectment to come at the leafehold eftate, by fetting afide the alignment, but may proceed at law to fell the term; and the vendee will be entitled at law to the poffeffion, notwithstanding fuch affignment. Burden v. Kennedy, Trin. 31 G. 2. 3 Atkins, 739. 5. R. delivered a writ of execution to the sheriff, under which his officer levied the debt and made the bill of fale. Then the fheriff discovered a former execution in the office and returned nulla bona. This was a false return; for, though the other writ of execution, being first delivered was material between the plaintiff in that fuit and the fheriff, and would be fufficient to charge the fheriff with the debt, yet it was not material between R. and the fheriff; for, he having once fold under R.'s execution, was answerable to him for the debt. Rybot v. Peckham, Mich. 19 G. 3. 1 Term Rep. B. K. 731. (n. a). 6. Application was made to the court to fet afide an execution levied under a fi. fa., the facts being that the defendant had been declared a bankrupt, and his certificate figned by four in five in number and value of the creditors, but not allowed at the time the writ was executed: the debt exifted previous to the bankruptcy. But the court were of opinion that it would be directly contrary to the very words of the ftatute (5 G. 2. c. 30.) to extend it to an execution against the goods of the bankrupt. The 13th fection of the ftatute relates to the perfon of the bankrupt only. Callen v. Meyrick, Trin. 26 G. 3. i Term Rep. B. R. 361. 7. On the 25th November 1786 the plaintiff entered up judgment against the defendant for 600 l, and on the fame day fued out a fi. fa. directed to the theriff of Middlefex; on which a warrant was granted, and the officer entered and took the defendant's goods on the evening of that day. On the 27th November another officer entered the defendant's houfe by virtue of a warrant on a f. fa., dated the 23d November, at the fuit of G. On the return. of the plaintiff's writ, he applied to the fheriff for a bill of fale, who informed him, that G.'s execution being brought into the office prior to the plaintiff's, must be firft fatisfied; upon which the plaintiff paid into the fheriff's hands the amount of G.'s execution, and afterwards applied to the court to have that sum repaid to him. But it was refufed; for, the bill of sale to the plaintiff was not a bill of fale under an execution to an innocent. purchafer, but to a person who purchased with notice of a prior claim. Though the poffeffion of an innocent vendee fhall not be difturbed, yet, as to all the rest of the world, the goods are bound from the delivery of the writ; here G.'s writ was firft delivered to the sheriff. Hutchinson v. Johnson, East. 27 G. 3, Term Rep. B. R. 729, 10Vin (81. (H. a. 2) The Body at the Suit of a common Perfon. Adminiftrator, v. Kerfwill, Mich. 10 G. 2. SP. Wright, Fa defendant, a prifoner, be difcharged for want of plaintiff's proceeding to judgment, the plaintiff, after judgment, may take the defendant in execution thereon, and he fhall not be difcharged. But if the plaintiff proceed to judgment, and the Earnes. 376. defendant be difcharged for want of the plaintiff's proceeding to Rep. Ca Pract. C. B. execution, the defendant fhall be totally difcharged, and cannot be afterwards taken in execution on fuch judgment. Clark v. Venner, Mich. 10 G. 2. Pract. Reg. C. B. 333. 135 zoVin 583. (I. a) By Capias. Against what Perfon Execution by Capias lies. 1. THE defendant was brought up by habeas corpus from the King's Bench prifon, to be charged in execution in the Common Pleas he moved to be remanded, upon an affidavit that he was a member of the last parliament, and continued to to the end of the fellion. It appearing by the return of the babeas corpus that the defendant was taken by procefs out of the court of K. B. fince the end of the laft feflion of parliament, and was not charged with any procefs in C. B., the court did not think it proper that he fhould be charged in execution, but remanded him. Dutton v. Pitt, Eaft. 7 G. 2. Barnes, 199. 2. A ca. fa. was made returnable on Thursday next after eight days from the day of the Purification of the Virgin Mary. This appearing upon the pleadings to a fei fa. there was a demurrer, and it was objected, that the word "from" was exclufive, and confequently the writ was not returnable till in vacation; it ought to have been Thursday next after the octaves &c. But it was anfwered and agreed by the court, that it was right and regular in true (a) The Pu- and even ftrict computation (a); and were it otherwife, yet as it was an execution and not mefne procefs, it would not be void, but only liable to be fet afide, on motion, for irregularity. Campbell, Efq. v. Cumming and another, Trin. 1 G. 3. Burr, 1187. rification feil on Mon day, fo that either way the Thurfday next aver eight days from it, or the Thursday next after the octave of it, was the 12th February. 10 Vin. 586. Vide Sir John Parfons v. Gill, 1. TH I. HE trial of a caufe was had at the last fittings in London in Michaelmas term, being the day before the end of the term, Ld. Raym. upon a diflringas returnable the laft day thereof. The plaintiff figned judgment after the term, and took out a ca. fa. tefted the firit, and returnable the last day of the fame term, and alfo a teflatum capias tefted the last day of that term, and returnable the 695. Comyns's Rep. 117. |