Chap. XVII. company cannot be issued or proceeded with without leave. What can be seized under a fi. fa. In the case of the bankruptcy of a judgment debtor, the rights of a judgment creditor to issue execution, or to retain the proceeds of an execution already levied, are affected by the Bankruptcy Acts, 1883 and 1890.2 Execution may be effected by means of a writ or order addressed to the sheriff or other public officer, or by the Court making an order supplemental to the judgment, or giving special directions to some private person for the purpose of enforcing the judgment. Fieri Facias. A writs of fieri facias (commonly called fi. fa.) is a writ given to a judgment creditor by the common law. It is a writ addressed by the Crown to the sheriff,5 by virtue of which he seizes the goods and chattels of the debtor and sells them, and (in practice) applies the proceeds in payment to the judgment creditor of the amount due to him instead of paying it into Court as directed by the writ. At common law the sheriff could seize under a fi. fa. all the debtor's corporeal personal property which can be sold, except wearing apparel actually in use and (perhaps) goods in the personal possession of the debtor. But it is provided by statute that "the wearing apparel and bedding of any judgment debtor or his family and the tools and implements of his trade," not exceeding in the whole the value of 51., shall not be liable to seizure. 8 11 The common law rule as to things liable to seizure has been extended by statute 10 to money, bank notes, cheques, bills of exchange, promissory notes, bonds, specialties, or other securities for money, and the sheriff can pay the money or bank notes to the 1 Companies Act, 1862 (25 & 26 Vict. c. 89), ss. 85, 87, 163. 2 46 & 47 Vict. c. 52, ss. 9, 10, 45, 46, as amended by 53 & 54 Vict. c. 71, s. 11. See Woolford v. Levy, [1892] 1 Q. B. 772; Burns-Burns v. Brown, [1895] 1 Q. B. 324; Hasluck v. Clark, [1899] 1 Q. B. 699. 3 As to the meaning of "writ," see M. L. R. P. 382. See the form of fi. fa. in R. S. C., Appx. H. An order, as well as a judgment, for payment of money can be enforced by a fi. fa., R. S. C., Ord. XLII., rr. 17, 24. In the County Court a warrant of execution in the nature of a fi. fa. is addressed to the high bailiff of the Court, and in any other inferior Court a warrant of the like nature is issued to one of the bailiffs of the Court. 6 Including leaseholds for years; Elph. & Cl. Searches, 68. 7 Legg v. Evans, 6 M. & W. 36. 8 Sunbolf v. Alford, 3 M. & W. 254. 98 & 9 Vict. c. 127, s. 8. See Re Dawson, [1899] 2 Q. B. 54. 101 & 2 Vict. c. 110, s. 12. 11 I.e., coin, not debts due to the judgment debtor; Harrison v. Paynter, 6 M. & W. 387. execution creditor, and hold the other property so authorized to be Chap. XVII. seized as security for the amount directed to be levied by the fi. fa., with power to sue thereon at the time of payment. Even since this Act deeds and writings cannot be seized unless they are securities for money.1 2 -crops. Fixtures annexed to the freehold of the debtor cannot be seized; Fixtures. but, where the debtor is possessed of the land for a term of years, fixtures which may be removed by him can be seized.3 Emble- Emblements ments,* i.e., those growing crops which pass to the executor as being the fruit of the industry of the owner, can be taken in execution, but not permanent growths, such as trees or grass. Things let to the debtor may be seized, but only his interest Things hired therein can be sold, and, if the sheriff sells more, he becomes liable by or pledged to an action for the conversion. Goods pledged can be seized for the debt of the pledgor on payment of the debt to the pledgee, but not otherwise; and the interest of the pledgee can be taken in execution under a fi. fa. for the debt of the pledgee." to debtor. The rolling stock and plant of a railway company are in some Railway cases protected from execution." The pay, arms, ammunition, companies. equipments, regimental necessaries or clothing of all soldiers of the regular forces cannot be seized in execution.10 Soldiers. sheriff. By the effect of the seizure the sheriff acquires possession of the Possession of goods, and therefore may maintain an action against any person who takes them; 11 but the debtor remains the owner of them till the sheriff sells.12 13 Where the goods seized are on any messuages, lands or Execution tenements leased 13 for life or lives, term of years, or otherwise," subject to they cannot be taken unless the execution creditor, before the 1 See, as to what are securities for money, Stokoe v. Cowan, 29 Bean. 637; Alleyne v. Darcy, 5 Ir. Ch. R. 55; Re Sargeant, 7 L. R. Ir, 66. 2 Winn v. Ingilby, 5 B. & Ald. 625 ; 24 R. R. 503; Steward v. Lombe, 4 Moo. 83. 3 Minshall v. Lloyd, 2 M. & W. 459 ; 46 R. R. 638; Poole's Case, 1 Salk. 368; Dumerque v. Rumsey, 2 H. & C. 777. See notes to Elies v. Maw, 2 Sm. L. C. 204. 4 M. L. R. P. 23. See 56 Geo. 3, c. 50, s. 1. 6 Consider Fenn v. Bittleston, 7 Ex. 152. G.P.P. 7 Rogers v. Kennay, 9 Q. B. 592. * Re Rollason, 34 Ch. D. 495. 9 30 & 31 Vict. c. 127, s. 4; 38 & 39 Viet. c. 31, s. 1; 46 & 47 Vict. c. 39. 10 44 & 45 Vict. c. 58, s. 144. 11 Wilbraham v. Snow, 2 Wms. Saund. 47. 12 Giles v. Grover, 9 Bing. 128; 1 Cl. & F. 72; 36 R. R. 27; Woodland v. Fuller, 11 A. & E. 859. 13 I.c., under an existing lease, not under a lease which has determined before the seizure; Cox v. Leigh, L. R. 9 Q. B. 333. 20 rent. Chap. XVII. removal of the goods from the premises, pays the landlord all Sale by sheriff. Goods seized, when bound as against purchaser from debtor. Sale of Goods sums due for rent, not exceeding, in the case of tenements let at a weekly rent, four weeks' arrears; in the case of tenements let for any other term less than a year, the arrears of rent accruing during four such terms, and in any case not exceeding one year's rent.1 The sheriff levies for the amount so paid for rent for the benefit of the execution creditor.1 After the seizure the sheriff's officer employs an auctioneer to catalogue and sell the goods. The sale is on the premises where the goods are seized if the person in possession of the premises consents; if he does not, they are removed for the purposes of the sale. The sheriff's officer may remain on the premises a reasonable time for the purpose of removing the goods to a place of safe custody till they can be sold. Where the execution is for upwards of 201., including incidental legal expenses, the sale must be by public auction and not by bill of sale or private contract, unless the Court from which the proceedings issued orders otherwise.3 5 At common law the goods are bound from the teste of the writ of execution, so that no subsequent dealing with them by the debtor could take away the sheriff's right to seize them if he could find them within his bailiwick. By the Statute of Frauds it was provided that the goods were not to be bound, as regards purchasers for value, until the writ was delivered to the sheriff; and, by the Mercantile Law Amendment Act, that no writ of fi. fa. should prejudice the title to goods acquired before the actual seizure of the goods by a bona fide purchaser for value without notice that the writ had been delivered to the sheriff. These provisions were repealed by the Sale of Goods Act, 1893, which provides that "a writ of fi. fa., or other writ of execution against goods shall bind the property in the goods of the execution 18 Anne, c. 14 (c. 18 in Revised Statutes), s. 1, as amended by 7 & 8 Vict. c. 96, s. 67. See Re Mackenzie, [1899] 2 Q. B. 566. Playfair v. Musgrove, 14 M. & W. 3 The Bankruptcy Act, 1883, s. 145; I.e., the date, because, when the contained in the clause beginning "Teste meipso." Anon., Cro. El. 174; Fleetwood's Case, 8 Rep. 171a. 629 Car. 2, c. 3, s. 16. 7 Hutchinson v. Johnston, 1 T. R. 729; 1 R. R. 380. 8 Guest v. Cowbridge R. Co., 6 Eq. 619; Ex p. Williams, 7 Ch. 317, per Mellish, L. J. 919 & 20 Vict. c. 97, s. 1. debtor as from the time when the writ is delivered to the sheriff to Chap. XVII. be executed," and that the date of such delivery shall be indorsed on the writ. But "no such writ shall prejudice the title to such goods acquired by any person in good faith and for valuable consideration" without notice "that such writ, or any other writ by virtue of which the goods of the execution debtor might be seized or attached, had been delivered to and remained unexecuted in the hands of the sheriff." 1 66 In practice the writ is generally executed by a "bound bailiff"2 Bailiff, under an order from the sheriff, called " a warrant," to execute the writ. But it may be executed by the sheriff in person or by the under-sheriff, or by a special bailiff under the sheriff's warrant.3 When a fi. fa. is once sued out, it may be executed notwithstanding the death of the execution creditor or of the debtor." Strictly speaking, it is the duty of the sheriff to draw up and sign a formal statement of what he has done in obedience to the writ; which statement when signed is called "the return to the writ" and he ought afterwards to send the writ and the return to the writ to the Supreme Court. This latter process is sometimes called "the return of the writ." The judgment creditor or judgment debtor can compel the sheriff to return the writ." The return to the writ must be carefully distinguished from the return of the writ; the difference between them is analogous to the difference between writing and posting a letter. Return to the writ-and of the writ. Under a fi. fa. against a partner on a judgment against such Execution partner for a private debt the sheriff could formerly seize all such against partnership of the assets of the firm as are seizable under a fi. fa., but he property. could only sell the share and interest of the execution debtor in the goods so seized, and not the whole of the debtor's interest in the partnership, including book debts and goodwill, for these could not be reached by a fi. fa.; and the only way in which the purchaser could ascertain what he was entitled to under the sale was by taking the accounts of the partnership; for, as we have pointed out, the share of each partner is not a share in any 156 & 57 Vict. c. 71, s. 26; Bagshawes v. Deacon, 78 L. T. 776. 21.e., a person who has entered into a bond with sureties for the due performance of his office. See Blackstone, bk. i., ch. 9. 3 See as to the under-sheriff and other officers, Sheriffs Act, 1887 (50 & 51 Clerk v. Withers, Holt, 303, 646. 5 Park v. Mosse, 1 Leon. 144. 6 R. S. C., Ord. LII. r. 11; Edmunds v. Watson, 7 Taunt. 5; Angell v. Baddeley, 3 Ex. D. 49. Chap. XVII. specific asset. By the Partnership Act, 1890, a writ of execution is not to issue against any partnership property except on Elegit. Execution by means of the Court. Attachment of debts. Garnishee. 3 a judgment against the firm, but the judgment creditor of a partner may obtain an order charging the partner's interest in the partnership property and profits with payment of the amount of the judgment debt and interest thereon, and the appointment of a receiver of that partner's share of profits and of any other money which may be coming to him in respect of the partnership; and the other partner or partners may redeem the interest charged, or, in case of a sale being directed, may purchase it. 4 Elegit. Under the writ of elegit, which is founded upon the statute 13 Edw. 1, c. 18, the sheriff seized and delivered to the judgment creditor all the chattels of the debtor (saving only his oxen and beasts of the plough), and one half of his land, until the debt was levied. Subsequently it was enacted that the whole of the debtor's land could be seized under the writ. Now a writ of elegit does not extend to goods." 66 5 A creditor to whom the debtor's land has been delivered under an elegit" can obtain an order for the sale of the debtor's interest.7 We proceed to consider various modes of execution by means of orders of the Court itself as distinguished from execution under the authority of writs. Attachment of debts. A judgment creditor may obtain from the Court or a judge ex parte an order that all debts owing or accruing from any person, called the garnishee, to the judgment debtor, shall be attached to answer the judgment, and directing by the same or a subsequent 1 Ante, p. 9. 253 & 54 Vict. c. 39, s. 23. As to execution where a judgment or order is against a firm, see R. S. C., Ord. XLVIIIA. r. 8; Davis v. Hyman, [1903] 1 K. B. 54. 4 Post, p. 311. Brown v. Hutchinson, [1895] 2 Q. B. 126. 5 1 & 2 Vict. c. 110, s. 11. 646 & 47 Vict. e. 52, s. 146. 7 27 & 28 Vict. e. 112, s. 4; Order LV. r. 9B. 8 In this place the phrase includes any person who has obtained a judgment or order for payment of money, |