906 When the sheriff becomes a trespasser by remaining on premises an unreasonable time.-The writ of fi. fa. authorizes the sheriff, who has entered upon premises for the purpose of making a levy under it, to remain there for such time as is reasonably necessary for the execution of the writ; but if he remains more than a reasonable time he abuses the legal authority conferred upon him by the Queen's writ and becomes a trespasser, and in the position of a man who has walked into another person's house without any authority (ante, p. 322). The reasonableness of the time is a question for the jury(s).

907 Seizure of the goods of the wrong person.-A sheriff or his officer seizing goods under a writ of execution is responsible in damages if he takes the goods of the wrong person. "If he takes the goods of a stranger, though the plaintiff assures him they are the defendant's goods, he is a trespasser; for he is obliged at his peril to take notice whose the goods are, and for that purpose may impanel a jury to inquire in whom the property in the goods is vested(t), or compel rival claimants to interplead and establish their title "(u). Where, therefore, two persons, being father and son, both had the same name of baptism and surname, and both resided in the same house, and an action was brought against the son, who suffered judgment by default, and a writ of execution was issued against him, under which the sheriff, by mistake, took the goods of the father, it was held that the sheriff was responsible for the consequences of his mistake(x).

The sheriff has no right to seize the goods of a stranger in the possession of the execution debtor as the ostensible owner(y). If a woman, having furniture of her own, cohabits with the execution debtor, and assumes his name, and gives herself out as his wife, and permits him to appear to be the owner of her furniture, this does not give the sheriff any right to seize it under an execution against him(2). And if the man and woman have actually gone through the form of marriage, and are supposed to be man and wife, and the goods have been seized and sold by the sheriff, as the goods of the husband, without any notice or objection, and it afterwards transpires that the marriage was void, and that the goods belonged to the supposed wife before the celebration of the void marriage, the sheriff will be responsible to her

(8) Ash v. Dawnay, 8 Exch. 243.
(t) Bac. Abr. EXECUTION, N. 5.

Playfair v. Musgrove, 14 M. & W. 239.

Roberts v. Thomas, 6 T. R. 88. Saunderson v. Baker, 3 Wils. 309. See Markley v. Rand, 12 Cal. 275.

(u) Post, s. 3. INTERPLEADER.

(z) Jarmain v. Hooper, 6 M. & Gr. 847; 7 Sc. N. R. 679.

(p) Dawson v. Wood, 3 Taunt. 260. Caldwell v. Arnold, 8 Minn. 265.

(*) Edwards v. Bridges, 2 Stark. 396.

in damages for the unlawful seizure(a). The acquiescence of the woman was held to be of no moment, the execution being a proceeding in invitum, she having no power to resist, and not having discovered the error.

But where the woman takes an active part in misleading the sheriff, and asserts that she is the wife of the execution debtor, knowing the assertion to be untrue, she is then herself the cause of the injury of which she complains, and is estopped from disputing the accuracy of her representation(b). And if the evidence shows that she had given the property to the man with whom she cohabited, and had made him. the owner of it, the sheriff will then have a right to seize it(c).

As one man's goods cannot be seized by the sheriff to pay another man's debts, it follows that the goods of a testator in the hands of an executor cannot be seized under an execution against the executor to satisfy a judgment debt due from the executor himself in his own right(d); but if a devastavit has been committed by the executor, and the goods have been converted to his own use, the executor cannot take advantage of his own wrong, and justify his own misconduct, by saying that the goods are not his, but his testator's(e).

An illegal seizure of goods under void process does not prevent the sheriff from afterwards executing a legal warrant. The subsequent valid seizure is in nowise vitiated by the previous trespass, but a different rule prevails with respect to an illegal arrest(ƒ).

It is not sufficient for a sheriff to enter a house with a writ of fi. fa. in his hands, and to demand the debt and costs, together with the expenses of the levying. He must do some overt act to execute the writ(g). But he need not actually seize anything. It is sufficient if he states to the persons left in charge of the property that he seizes everything there, and that nothing must be removed(h). And when he has thus taken possession of the goods, his officer shall continue in possession, in order to sustain the seizure against others afterwards coming under legal authority to seize the same goods(i). If he (a) Glasspoole v. Young, 9 B. & C. 701.

(b) Langford v. Foot, 2 M. & Sc. 349.

(c) Edwards v. Farebrother, 2 M. & P. 293. As to the seizure of goods let to hire to the execution debtor, see Tancred v. Allgood, post, 794.

(d) Farr v. Newman, 4 T. R. 621. Gaskell v. Marshall, 1 M. & Rob. 132. Fenwick v. Laycock, 2 Q. B. 110.

(e) Quick v. Staines, 1 B. & P. 295.

(ƒ) Percival v. Stamp, 9 Exch. 171. Hooper v. Lane, 6 H. L. C. 443.

(g) Nash v. Dickenson, L. R., 2 C. P. 252.

(h) Gladstone v. Padwick, L. R., 6 Exch. 203.

(i) Blades v. Arundel, 1 M. & S. 711. Ackland v. Paynter, 8 Pr. 95. As to the withdrawal of the sheriff under an interpleader order, see Darby v. Waterlow, infra.

give up possession without a lawful excuse, he will be liable to an action(j).

908 Seizure by sheriffs and their officers of privileged or protected goods.An action is not maintainable against a sheriff who has seized privileged or protected goods, in obedience to the commands of a writ, but the person injured must apply to the court for an order upon the sheriff to restore the goods. Thus, if the sheriff seizes the property of a person, who has obtained an order, from a court of competent jurisdiction, of protection from process, the remedy is by application to the court for an order upon the sheriff to withdraw, and not by action(k). No writ of fi. fa. can be executed in any of the palaces belonging to the crown, which is either at that time the residence of the sovereign, or in which there is an intention, and present power, on the part of the crown, to resume such residence; but if, although in one sense a royal palace, it has, for many years, been put to uses practically inconsistent with the personal residence of the sovereign, the exemption will cease().

The Mercantile Law Amendment Act, 19 & 20 Vict. c. 97, s. 1, provides that the delivery of a writ of fi. fa. is not to affect any title to the goods seized acquired bonâ fide before the actual levy without notice(m). The provisions of the Companies Act, 1862, ss. 87 and 163, have been cited, ante, p. 649. The words "put in force," there used, mean the taking of possession by, not the delivery of the writ to, the sheriff. Where, therefore, the execution creditor placed the writ in the hands of the sheriff three hours before a petition for winding up the company was presented, but possession was not taken till three hours afterwards, all further proceedings under the writ were stayed(n). Under particular circumstances, however, i.e., where the company have not acted fairly towards the judgment creditor, he will be allowed to complete his execution (o). Where the creditor takes possession before the winding up, the Court of Chancery will not, under the provisions of the 87th section, restrain him, as a general rule, from reaping the benefit of his diligence(p). And so, if the creditor would have been in possession but for the fact of the judgment debtor having prevented him by force(9).

(2) Att.-Gen. v. Dakin, L. R., 2 Exch. 290; 3 ib. 288; 4 Engl. & Ir. App. 938.

(m) See Hobson v. Thelluson, L. R., 2 Q. B. 642.

(ny Re London & Devon Biscuit Co., L. R., 12 Eq. Ca. 190.

(0) Re Bastow & Co., L. R., 4 Eq. Ca. 681.

(p) Re Great Ship Co., 10 Jur. N. S. 3. Plas-yn-Mhowys Mining Co., L. R., 4 Eq. Ca. 689. (q) Re London Cotton Co., L. R., 2 Eq. Ca. 53.

By the 30 and 31 Vict. c. 127, s. 4, continued by 34 & 35 Vict. c. 95, no execution can be levied on the rolling stock or plant of a railway company up to the 1st of September, 1872, and the end of the then next session, if the line is open for public traffic(r). The 7th section of the first-mentioned Act provides, that after the filing of a scheme of arrangement between the company and its creditors, under s. 6, the Court of Chancery may restrain any action against the company on such terms as it thinks fit; and the 9th section provides, that after publication of a notice in the London Gazette, that the scheme has been filed, no execution, attachment, or other process against the property of the company shall be available without the leave of the court. Under these sections the court has only an interim power, between the filing and the enrolment of a scheme of arrangement, to allow an execution, but after the enrolment any creditor bound by the scheme would, it seems, be prevented from issuing execution(s).

909 Power of the sheriff to compel rival claimants to interplead and establish their title.-By 1 & 2 Wm. 4, c. 58, s. 6, reciting that difficulties arise in the execution of process against goods and chattels, by reason of claims made to such goods and chattels by persons not being the parties against whom the process has issued, whereby sheriffs and officers are exposed to actions, it is enacted, that "when any such claim shall be made to any goods or chattels taken, or intended to be taken, in execution, under any such process, or to the proceeds or value thereof," it shall be lawful for the court from which such process issued, upon application of the sheriff or officer, made before or after the return of such process, and before or after any action brought, to call before them, by rule of court, as well the party issuing the process as the party making such claim, and thereupon to exercise, for the adjustment of such claims, and the relief and protection of the sheriff or officer, any of the powers conferred by the statute, and to make such rules and decisions as shall appear to be just. And the 1 & 2 Vict. c. 45, s. 2, enables any single judge of the superior courts to exercise the powers and authorities for the relief and protection of the sheriff or other officer given by virtue of 1 & 2 Wm. 4, c. 58, s. 6. Among the powers contained in the last-named Act is the power of making rules and orders (s. 1), calling upon the claimant to appear and state the nature and particulars of his claim, and maintain or relinquish his claim, and to stay proceedings in actions, and to order

(r) See Re Cambrian Railways Company's Scheme, L. R., 3 Ch. App. 278.

(8) Re Potteries, Shrewsbury, & North Wales Rwy., L. R., 5 Ch. App. 67. Potteries, Shrewsbury, & North Wales Rwy. v. Minor, L. R., 6 Ch. App. 621

actions to be tried, and direct which of the parties are to be plaintiff or defendant in such actions.

These powers may be exercised, though the titles of the claimants have not a common origin, but are adverse to, and independent of, one another(t). But they do not apply to claims for rent, unless the landlord claims the goods themselves, or the proceeds of them, as being his property(u).

It is not necessary that the sheriff should have made an actual seizure of the goods in order to be entitled to the benefit of the statute. It is sufficient if he intends to seize the goods, having the writ or process in his possession(v).

The object of the Act is to give protection to the sheriff, whenever, by reason of claims to the property, he is in danger of actions by the execution creditor if he yields to the claim, or by the claimant if he executes the writ. But it is not intended to protect the sheriff, where the resistance is to the writ itself, i.e., where the party in the cause objects to any execution on his own goods, for there the process itself, properly executed, would be the sheriff's defence(w); nor does it apply where there has been an unlawful breaking open of the outer door of a dwelling-house by the sheriff, in order to effect the seizure of the chattels, for this is a wrong quite independent of any question of ownership of the goods seized, and the court or a judge has no authority to stay proceedings in an action brought in respect thereof. The statute is altogether silent respecting such a subject-matter of complaint, and therefore affords the sheriff no protection in respect of it. "It is quite clear," observes Maule, J., "that an action for unlawfully breaking and entering a house in the execution of process is no more within the contemplation of this Act than an assault and battery of the party would be. It cannot be said that the damages in such an action are something as to which the sheriff doubts who is entitled to them. He is charged as a wrong-doer; there is nothing to interplead about; nobody but himself is interested in the result, or liable for the consequences"(x)

But when there has been no independent trespass, when the outer door of a dwelling has not been broken open, and the entry into the house would be lawful, and protected by the process, if the goods found

(t) 23 & 24 Vict. c. 126, s. 12.

(u) Bateman v. Farnsworth, 29 Law J., Exch. 365.

(v) Lea v. Rossi, 11 Exch. 13; 24 Law J., Exch. 280. Day v. Carr, 7 Exch. 886.

(w) Fenwick v. Laycock, 2 Q. B. 110.

(z) Hollier v. Laurie, 3 C. B. 342.