PART I. 56 Geo. 3, c. 50. by the 56 Geo. 3, c. 50. The substance of its provisions. is as follows:- The bailiff may not sell straw, straw of crops, chaff, colder, turnips, manure, compost, ashes, or seaweed (f), nor clover, rye, or other artificial grasses which are newly sown, and growing under a crop of standing corn (g); nor can he sell hay, grasses (natural or artificial), tares, vetches, roots, or vegetables, where, by any covenant or written agreement made for the benefit of the owner or landlord, they ought not to be taken off from the land, or ought to be used thereon, if he has received a written notice thereof before sale (h). The tenant or occupier must give notice to the bailiff of such covenants or agreements, and of the name and residence of the owner or landlord, to whom and to whose agent the bailiff must give notice that he has taken possession, and must postpone the sale until the latest day he lawfully can appoint (i). The bailiff may, however, where no such covenant or written agreement is shown, sell such crops by written agreement, in such manner as accords with the custom of the country; and in cases where a covenant or written agreement is shown, then, according to such covenant or agreement; and after sale the purchasers may use all necessary barns, &c., for the purpose of consuming such crops or produce as the bailiff allots to them, and which the tenant or occupier would have been entitled to use (k); should the landlord or owner be aggrieved by breach of such agreement, the bailiff, being indemnified by him, must permit the landlord or owner to use his name for the recovery of damages (1). The bailiff, before selling such crops, must make inquiry within the parish in which the lands are situate, as to the name and residence of the landlord or owner (m). The landlord may not, where such agreement for sale has been made, distrain on corn, hay, straw, or other produce, which at the time of such sale or agreement has been severed from the soil; nor on any turnips, whether drawn or growing, nor on horses, sheep, cattle or beasts, nor on waggons, carts, or implements of husbandry, which the purchaser employs for thrashing, carrying, or consuming such produce (n). The act does not extend to straw, turnips, or other articles which the tenant may remove consistently with some contract in writing (o). The bailiff is not liable for any breach or omission of the provisions of the act, unless it be wilful (p); and all persons acting under it are indemnified (q). The assignees of a bankrupt, &c., may not take produce, manure, &c., in any other way than the bankrupt, &c., would have been entitled to do (r). CHAP. IX. Whose Goods may be seized.]-The bailiff must at his Whose goods peril seize only the goods of the person named in the may be seized. writ; if he seize those of another, he is liable to an action, though the goods are in the possession of, and apparently the defendant's (s). The goods of a woman cohabiting with the defendant cannot be taken, though she passes for his wife (t). Terms of years vested in a husband in right of his wife, and all her goods, though bought with money settled to her separate use (u), may be seized in execution against the husband; but not terms or goods, the legal estate of which is in trustees, though the husband has by the settlement an equitable interest for life, and is in possession of them (x). The goods of a testator or intestate cannot be seized Goods of tesfor the personal debt of the executor or administrator (y), tator. unless by using them he has made the goods his own (z), in which case he cannot deny that they are his pro perty. Under an execution against the goods of one of two Goods of partpartners, the bailiff must seize the goods of both, and sell ners. the moiety belonging to defendant (a). The vendee is tenant in common with the other partner (b), and his PART 1. Goods of bankrupt. Ambassadors. Goods in custody of the law. Lien. Bailment. interest is only what remains after payment of partnership debts (c). By the Bankrupt Act, 12 & 13 Vict. c. 106, s. 133, executions against the goods and chattels of a bankrupt bona fide "executed and levied "(d), by seizure and sale before the date of the fiat or the filing of the petition are valid, notwithstanding any prior act of bankruptcy; provided the person on whose account execution has issued had not at the time of executing or levying such execution, or at the time of making sale thereunder, notice of any prior act of bankruptcy. This does not, however, protect executions on judgments on warrants of attorney or cognovit actionem, given by a bankrupt by way of fraudulent preference (e). "Bonâ fide" in this provision means on the part of the creditor and bailiff, not the defendant (f); the "notice" may be to the execution creditor, or to one of several, or to the attorney (g), but not to the bailiff (h). If the seizure and notice occur on the same day their priority may still be inquired into (i). The execution is not protected where it is itself an act of bankruptcy (k). The goods of ambassadors and other ministers of foreign states and their domestics cannot be seized (1). Goods which are in the custody of the law, as those which are seized under a distress or previous execution, cannot be seized (m). The rule of law being that a bailiff may only seize that which he can sell, goods in the defendant's possession, and on which he has a mere lien, cannot be seized (n). Where, however, goods are let to the defendant for a term, the bailiff may seize them, and sell the defendant's interest in them (o). Goods of the defendant pawned or leased to another may be sold, subject to the right of the bailee or lessee, but cannot be seized till the bailment or СНАР. ІХ. term is determined. Until recently, if the defendant after the delivery of Goods asthe writ to the bailiff assigned his goods, even for a signed. valuable consideration, except it were in market overt, no property passed to the assignee, and the bailiff might still seize and sell them (p): so if the assignment were before the delivery of the writ, if it were made for the purpose of delaying, hindering or defrauding creditors (9). But by the 19 & 20 Vict. c. 97, s. 1, it is provided that a writ of execution against the goods of a debtor shall not prejudice the title to such goods acquired by any person bona fide and for a valuable consideration before their actual seizure or attachment by virtue of the 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. take. Where there are no Goods to take.]—If the amount for Where there which the judgment of the court is exceeds 201., and the are no goods to defendant has no goods or chattels which can be conveniently taken to satisfy the judgment, application may be made to a judge of a superior court for a writ of certiorari to remove it into one of the superior courts, who if satisfied thereof may order the writ to issue; and when it is removed it is to have the same force and effect, and proceedings may be had thereon as in the case of a judgment of a superior court, but no action may be brought upon such judgment (r). Payment of Taxes and Rent, and Priority of Land- Payment of lord.]-The Queen's taxes, due at the time of seizure, to taxes. the extent of one year's arrears, must be paid by the bailiff to the collector before sale or removal (s). The statute 8 Anne, c. 14, s. 1, which forbids the Rent. removal of goods seized in execution, till the landlord has been paid a year's rent, does not apply to executions under process of the county court; but the landlord of a tenement in which goods are taken in execution may (p) Samuel v. Duke, 3 M. & W. 622. (g) 13 Eliz. c. 5; 29 Eliz. c. 5 ; Twyne's case, 3 Rep. 80; 1 Smith's L. C. 1 (6th edit.); see notes. (s) 43 Geo. 3, c. 99, s. 37. PART I. Priority of landlord. Sale. claim the rent at any time within five clear days from the date of the taking, or before the removal of the goods, by delivering to the bailiff or officer making the levy a writing signed by himself or his agent, stating the amount of rent claimed to be in arrear, and the time for and in respect of which it is due. If such claim is made, the bailiff in addition to the levy must distrain for the rent claimed and the costs of distress, but may not, till five days next after the distress, sell any part of the goods. taken unless they are of a perishable nature, or upon the request in writing of the party whose goods have been taken. The bailiff must afterwards sell such of the goods under the execution and distress as will satisfy, first, the costs of and incident to the sale, next the claim of such landlord, not exceeding the rent of four weeks where the tenement is let by the week, the rent of two terms of payment where the tenement is let for any other term less than a year, and the rent of one year in any other case, and lastly the amount for which the warrant issued. If any replevin is made of the goods so taken, the bailiff must, notwithstanding, sell such portion thereof as will satisfy the costs of and incident to the sale under the execution, and the amount for which the warrant issued; and in either event the overplus of the sale, if any, and the residue of the goods, must be returned to the defendant; and the poundage of the high bailiff and broker for keeping possession, appraisement and sale under the distress, will be the same as would have been payable if the distress had been an execution of the county court, and no other fees may be demanded or taken in respect of it (t). If the bailiff seizes goods belonging to a stranger, he cannot, under the above power, distrain them for the rent of the landlord. If he does so, the owner is entitled to have them back (u). Sale.]-Until the sale, the goods must be deposited by the bailiff in some fit place, or they may remain in the custody of a fit person approved by the high bailiff, and put in possession by the bailiff, for keeping possession of which he is entitled to charge sixpence in the pound for each day, calculated on the value of the goods seized (v); (1) 19 & 20 Vict. c. 108, s. 75, p. 419. Somewhat similar provisions were contained in 9 & 10 Vict. c. 95, s. 107, now repealed. (u) Beard v. Knight, 8 E. & B. 865; S. C., 27 L. J., Q. B. 359; Foulger v. Taylor, 5 H. & N. 202; S. C., 29 L. J., Exch. 154. (v) See high bailiff's fees, ante, P. 41. |