have decided that he may do so, there has been more diversity of opinion (b).

It has been argued that the first deed or judgment, Fraudulent even if fraudulent, is good between the parties them- judgment selves and between either of the parties and a stranger strangers. good against other than a creditor; that the sheriff or other officer is a stranger unless he can prove that he seized (under Sheriff must the second execution) by legal authority on behalf of a prove he was acting for a creditor (c). This question was first raised in Lake V. creditor Billers (d), and it was there decided that "as it was an action of trespass by a third party (for [* 172 ] whom a prior fraudulent execution had issued) the defendant, though sheriff, ought to give in evidence a by copy of a copy of the judgment. But it would have been other judgment. wise if the trespass had been brought by the person against whom the fi. fa. issued." This was followed and approved in Martin v. Podger, (e) and other cases (f); but this state of the law was disturbed by the case of Bessey v. Windham, (g), in which it was decided that Bessey V. the mere recital of the writ of fi. fa. in the warrant was Windham. sufficient evidence of the sheriff's authority. The warrant in that case was put in by the plaintiffs as evidence against the sheriff (the defendant) in order to connect him with the act of trespass; and, no doubt, against the sheriff the recital was proof of the seizure. So in Goss v. Quinton (h) on which the decision in Bessey v. Windham (g) was partly founded) an agreement, of which the defendant required proof, had come out in an examination of him in bankruptcy; this examination the plaintiffs put in in order to prove another point against the defendant, on which it was held that the agreement formed part of the examination, and that, if any part of the examination were read, the whole of such examination must be considered as being in evidence.

So also in Haynes v. Hayton (i), the other case re

(b) See West v. Ship, 1 Ves. 239, 245; post, p. 174. (c) Martin v. Podger, 2 W. Bl. 701; Turvil v. Tipper, Latch, 222; Bessey v. Windham, 6 Q. B. 166; White v. Morris, 11 C. B. 1015.

(d) 1 Ld. Raym. 733.

(e) 2 W. Bl. 701.

(f) Glade v. Wentworth, 6 Q. B. 173, n.; Ogden v. Hesketh, 2C.

& K. 772, et infra.

(g) 6 Q. B. 166.

(h) 3 Man. & G. 825, 829.

(i) 6 L. J. (O.S.) K. B. 231.

White v.
Morris.

lied on in Bessey v. Windham (k), a letter which was put in by the plaintiff against the sheriff contained proof of his authority. All that Lord Tenterden said was (reading the letter): "You are to make this evidence against the sheriff, and yet not give him credit. for an assertion there made which is in his favour. This seems to me to be the hardest measure possible." But this is evidently a very different affair from allowing the sheriff to prove his authority as against third parties by his own warrant reciting the writ, more especially as the cases quoted above shew that the production of the writ itself is not enough. By the case of White v. Morris (1), the law was brought back to its former state. There the Court of Common Pleas (m) unanimously overruled the decision in Bessey v. [ * 173 ] * Windham (n). Jervis, C.J., there said: "It is an established rule of law, never doubted until the case of Bessey v. Windham (n), that the mere production of the writ, and nothing more, will not enable the sheriff to shew that a deed, good against all except creditors, is fraudulent and void. He must shew that he represents a creditor. For this purpose the bare production of the writ is not enough. The writ merely authorizes and directs the sheriff to do a certain act, and his indorsement or return thereon is a mere statement that he has done as he was directed. There is no statement that a judgment exists, but only that somebody says that a judgment has been obtained." (o).

In Ogden v. Hesketh (p) the sheriff of the County Palatine of Lancaster was sued for wrongful seizure and sale, and defended himself on the ground that the assignment by which the plaintiff claimed was void against creditors. Although the proof of the warrant was not allowed to be enough, yet the mandate from the Chancellor of the Duchy to the sheriff having been put in, it was held that as in the County Palatine the Chancellor's writ was sent to the Chancellor and not to the sheriff,

mandate.

(k) 6 Q. B. 166, 172.

(1) 11 C. B. 1015.

(m) Jervis, C.J., and Maule, Cresswell, and Williams, JJ. (n) 6 Q. B. 166.

(0) In ordinary cases, apart from the statute of Elizabeth, it is enough to shew the writ only and not the judgment in justifying under a writ of execution; but the party himself even then must prove the judgment, so that the principle is the same: Cotes v. Michill, 3 Lev. 20; Moravia v. Sloper, Willes, 30, 34; Andrews v. Marris, 1 Q. B. 3. 17.

(p) 2 C. & K. 772.

who in fact never saw the writ, but acted entirely by virtue of the Chancellor's mandate, the production of the mandate was a sufficient proof of the authority of the sheriff, although it contained no recital of the writ of fi. fa. But if the writ is not sufficient in ordinary cases, it is hard to see how the Chancellor's mandate can be sufficient proof to connect the sheriff with the creditor or creditors, against whom alone the fraudulent assignment was void.

the judgment must be proved.

But this case was decided before the law on the subject had been again established by White v. Morris (q) and the other cases mentioned above, and it therefore Writ of exemay be regarded as clear that where a sheriff justifies cution and a seizure made by him as against third persons-any person except the debtor himself-he must produce both the writ of execution and the judgment; and he cannot be relieved from offering such proof [174] by any recital in the warrant which his opponent may put in evidence as proof of the seizure (r).

Questions have arisen as to whether, in an action Evidence as to fraud in against the sheriff for not executing a writ in spite of a actions by previous seizure alleged to be fraudulent, evidence of persons imthe fraud is admissible. peaching prior judg

There are some cases in which the first execution ments and executions. alone has been impeached, and others in which it has. been necessary to impugn the bona fides both of the execution and the judgment on which it was founded.

As to the first class of cases, Lord Hardwicke said, Prior execuin West v. Skip (s), that "if a creditor, by fi. fa. seize tion alone impeached. the goods of the debtor, and suffer them to remain long in the debtor's hands, and another creditor obtains a subsequent judgment and execution, it has been determined often that it is evidence of fraud in the first creditor, and the goods in the hands of the debtor remain liable." But in Bradley v Wyndham (t), where no actual possession was given under the first execution, it was left to a jury to say whether it was fraudulent or no.

q) 11 C. B. 1015.

(r) 1 Tayl. 20, 8th ed. 646.

(s) 1 Ves. 239, 245, cited and followed in Lovick v. Crowder, 8 B. & C. 136; and see Smallcomb v. Buckingham, 1 Salk. 320, and (as Smallcomb v. Cross) 1 Ld. Raym. 251.

(t) 1 Wils. 44; and see Day v. Waldock, 1 Dowl. 523.

Evidence of execution and judgment being fraudulent

in action by person impeaching a prior judgment.

The question whether evidence that not only the prior execution but also the judgment was fraudulent against the plaintiff-a creditor seeking to enforce a subsequent execution-could be admitted, was for some time left undecided. In Warmoll v. Young (u), the plaintiff brought his action against the sheriff for not executing his writ of fi. fa. His defence was that he had previously levied at the suit of K., and the answer to that defence was that K.'s judgment was fraudulent. Lord Tenterden received the evidence on the authority of a decision of Lord Kenyon's (v), which, however, turns out not to be conclusive, as the sheriff was there indemnified by the creditor, and the action, moreover, was by the first creditor, who had obtained judgment and execution.

In Barber v. Mitchell (w) it was said that the question whether the judgment first obtained was fraudu[*175] lent or not could not be raised in an action against the sheriff; for that purpose an issue must be directed; but that the question whether the first execu tion was fraudulent with the sheriff's knowledge, might be raised in an action against him. But in Tyler v. Duke of Leeds (x) Lord Ellenborough seems to have thought evidence admissible to impeach the judgment on which the action for a false return was founded. In a case (y) of an action against the sheriff by a judgment creditor for falsely returning nulla bona to a writ of the plaintiff, in which the sheriff, being indemnified, had sold the goods under a writ subsequent in date to the plaintiff's, the declaration alleged that the sheriff took in execution goods of the debtor of the value indorsed on the plaintiff's writ, and levied the same there. out. To this the sheriff pleaded that he did not levy the moneys as therein alleged, nor any part thereof, modo et formâ.

Evidence that the plaintiff's judgment was obtained by fraud and collusion with the debtor was objected to. It was held that the words in the declaration, "and then levied the same thereout," must mean that the sheriff had in his hands the proceeds of the sale for

(u) 5 B. & Cr. 660.

(v) Kempland v. Macaulay, 4 T. R. 436.

(w) 2 Dowl. P. C. 574.

(x) 2 Stark. 218; see also Gale v. Williamson, 8 M. & W. 405. (y) Shattock v. Carden, 6 Ex. 725, 728.

the purpose of handing over to the plaintiff (z); that is, that the proceeds of the sale were applicable to the payment of the plaintiff's debt. Unless he had the

money for that purpose no breach of duty was shewn by their not paying over the money, and in order to shew that the money so received was not applicable to that purpose it was open to the sheriff to produce evidence that the plaintiff's judgment was fraudulent; and the return of nulla bona means, no goods to satisfy plaintiff's claim.

These questions were fully discussed in Imray v. Imray v. Magnay (a), which was an action brought by a judg. Magnay. ment creditor against the sheriff of Middlesex for neglecting to levy, and returning nulla bona. The defence was founded on a previous seizure under a former judgment; and to evidence which was offered to shew that the former judgment and execution was fraudulent and void, it was objected that, in an action against the sheriff, evidence was not admissible of fraud, either in the judgment or in the execution.* At the [* 176 ] trial the evidence was admitted and the point reserved. The Court decided the evidence was admissible both as Evidence to the judgment and the execution, and this must be admissible. taken to be the present law on the subject.

It is clear, though, that in an action by the creditor Evidence of under the first judgment and execution against the fraud in sheriff for trespass in having seized under a subsequent process, evidence as to the fraud or bona fides of the first transaction is admissible (b).

action by person whose judgment

&c., is impeached.

In these cases the sheriff not only may, but is bound Sheriff bound to, seize and sell the goods in spite of the fraudulent to seize and sell, process.

"It is settled by the case of Imray v. Magnay (c), said Parke, B., in delivering the judgment of the Court of Exchequer in Christopherson v. Burton (d), "that

(z) Drewe v. Lainson, 11 A. & E. 529.

(a) 11 M. &. W. 267, followed as to this point (the admission of evidence of fraud) by Remmett v. Lawrence, 15 Q. B. D. 1004, 1007; and by Christopherson v. Burton, 3 Ex. 160.

(b) Lake v. Billers, 1 Ld. Raym. 733; Martin v. Podger, 2 W. Bl. 701; Paget v. Perchard, 1 Esp. 205; Riches v. Evans, 9 C. & P. 640; Bessey v. Windham, 6 Q. B. 166; Woodham v. Baldock, Gow, 34 S. C. 3 Moo. 11.

(e) 11 M. & W. 267, 276.

(d) 3 Ex. 160.