Sheriff Goods Seizure

Cases

Donoghue v Dean

Circuit Case.

1 March 1885

[1885] 19 I.L.T.R 39
Palles C.B.

 

Palles, C.B.

I prefer to decide this case upon general principles rather than to base my ruling upon the authorities which the industry of Mr. Fleming has produced to me here, as it is doubtful to my mind whether those authorities exactly govern the point at issue in this instance. Now, the old law upon the subject was this: everything which was permanently attached to the soil formed a part of the freehold, and could not be seized under a writ of fi. fa. ; but there were some crops, such as corn and potatoes, which, inasmuch as it could never have been intended that they should remain permanently attached to the soil, were considered by the law to be mere chattels deposited in the earth as in a storehouse; but the fact that a plant or crop had been sown or planted by the hand of man never was held to constitute it a chattel, and thus, although a tree was planted by man, yet, as it remained permanently in the ground, it became portion of the freehold and as much a part of the soil as the earth itself in which it grew. This doctrine was carried so far, that at one time artificial grass sown after tillage was considered to have become soi much a part of the freehold, that it was not seizable when it came to maturity the following year, although n reality it was as much a temporary crop as corn or potatoes could be. However, when these artificial grasses came very commonly into use, an exception to the strictness of the old law was introduced, and the same rule was applied to artificial grasses as to corn, and they are now seizable by the sheriff under a writ of fi. fa., but with this important restriction, that it is only the first year after they are sown that they are considered to constitute a crop. After the first year, although a large proportion of the herbage of the field may consist of artificial grasses, yet as they become part of the permanent grass of the field, they are not considered a crop in the sense of the word which I have mentioned, that is, a chattel placed in the earth as it would be in a storehouse. Now in this case, it having been proved to me that this meadow had been in the same condition for some years, the hay which grew upon it ought not to have been seized and sold, and the plaintiff is entitled to recover. As to the rough grass which grew upon the fallow land, no seed was sown there the year before—it was natural grass, and falls within the same rule. I therefore confirm the decision of the County Court Judge, and give the plaintiff a decree for £10.

In re Hackett

Court of Bankruptcy.

2 May 1876

[1876] 10 I.L.T.R 96
Miller J.

May 2, 1876

 

If an execution debtor authorises the employment of an auctioneer to sell his goods seized by the sheriff, the proper expenses incurred by reason of a sale by auction may be deducted by the sheriff from the amount realised by the sale.

The sheriff is only entitled to poundage on the amount of the execution debt.

Motion, on behalf of the bankrupt, that the sheriff of the county of the city of Cork should lodge with the official assignees several small sums of money specified in the notice of motion. The sheriff, in the month of October, 1875, seized part of the stock-in-trade of the bankrupt, who was a jeweller, in Cork, under two writs—one for £38, and the other for £41. The goods seized and a considerable quantity of other goods were subsequently sold by public auction at an auction mart, under circumstances which were disclosed in the affidavits, the total proceeds of the sale being nearly £140. Within fourteen days after the sale the execution debtor was adjudicated a bankrupt, and the sheriff, under the 54th section of the Bankruptcy Amendment Act of 1872, lodged with the official assignees the proceeds of the sale, less certain deductions. The deductions included the sheriff’s poundage of five per cent., a sum of £2 for bailiffs, two several sums of £7 4s. 11d. costs of the writs, a sum of £19 levied for the purpose of paying rates, another small sum handed to the execution debtor to pay a private debt, £4 18s. for advertising the sale, and between £6 and £7 paid to the auctioneer. A composition after bankruptcy was offered by the bankrupt, *96 and accepted by his creditors, and was in course of payment, and the sums which the bankrupt required the sheriff to bring into Court were the amount of the auctioneer’s fees, the money paid for advertising, one of the two sums of £7 4s. 11d., and so much of the sheriff’s poundage as represented the difference between five per cent. on the amount of the execution debt and on the amount of goods actually sold.

There were some controverted questions of fact, the sheriff alleging that the auctioneer had been employed with the sanction and assent of the bankrupt, and that the advertisements were, at his express request, so framed as to exclude his name; whilst the bankrupt asserted that he had never authorised the employment of the auctioneer, but had brought the articles of jewellery seized to the sheriff’s office, after which he heard nothing of them until the sale took place.

Kisbey, for the bankrupt.—The 54th section of the Act of 1872 contains a proviso, that where a sheriff has seized and sold the goods of a trader in respect of a judgment for a sum exceeding £20, he shall, in the event of bankruptcy within fourteen days, retain and pay the costs and expenses of the action and execution out of the proceeds of the sale, and pay over the balance to the assignees. The judgments in the two cases in respect of which the bankrupt’s goods were seized were obtained by default, and the costs of each would, therefore, be £7 4s. 11d., being the amount ascertained by the General Order of 1st February, 1854: Bewley & Naish C. L. P. Acts, App. xiv. But it is contended that the costs of one action only should be deducted, upon the principle that, the moment there is a seizure and sale of the goods of a trader under an execution for £20 or upwards, an act of bankruptcy is committed, and any one having notice of that act of bankruptcy must be bound by it. In this case the attorney for the plaintiffs in both actions was the same person, and he could not be heard to say that he had not notice of his own act. Notice to the attorney of an act of bankruptcy would be notice to the client, for whom the attorney was acting in the matter. The 87th section of the English Bankruptcy Act of 1869 requires the entire proceeds of the sale, “after deducting expenses,” to be handed to the trustee, and there is in England no provision whatever by which the execution creditor can get any costs. Therefore, there is not on this particular ground any authority. The case of Ex parte Dawes, in re Husband, L. R. 19 Eq. 438, comes nearest to it. There a creditor issued an execution for a sum over £50 against a trader, and there was a seizure and sale under it. The same creditor issued a second execution before he removed the proceeds of the first sale, and the Court held that, at the time of the second sale, he must be taken to have had notice of an act of bankruptcy. If several sets of costs should be paid to an attorney who had lodged several writs against a trader, the entire proceeds might be swept away. The second question is, what “expenses” is the sheriff entitled to? And probably, the true answer is that he is entitled to what the statute gives him, and no more. The Common Law Procedure Act, 1853, section 130, shows that he is entitled to “the poundage fees and expenses of the execution by law payable.” At common law he was not entitled to any fees. The statutes gave him a shilling in the pound when the sum does not exceed £100, and six-pence in the pound for every pound above that limit. If he employ an auctioneer he must remunerate him out of his own fees, unless the employment is at the instance of the execution debtor. The law on this subject is clearly laid down in Woodgate v. Knatchbull, 2 T. R. 148. In Ireland the same principle was decided in King v. Fitzgerald, 1 Jones 35; and in a recent case—Byrne v. Hutchinson, I. R. 9 C. L. 75, 9 Ir. L. T. & S. J. 139—the Court of Queen’s Bench decided that the sheriff is entitled to poundage fees on the sum marked on the writ, and no more, and that neither the execution debtor nor his attorney can waive the provisions of the law. Unless, then, it is found as a fact that the execution debtor not merely stood by and saw an auctioneer employed, but authorised his employment, the auctioneer’s fees and the costs of advertising were not proper deductions; and in no case could the sheriff be allowed to take poundage on more than the sums marked on the two writs.

O’Shaughnessy, for the sheriff.—The case of King v. Fitzgerald, cited for the bankrupt, shows that if an auctioneer is employed by the authority of the execution debtor the fees of the auctioneer were chargeable against him. Other cases go beyond this, and show that expenses incurred with his sanction may be paid by the sheriff out of the proceeds of the execution: Yates v. Meehan, 11 I. C. L. R. Ap. 1; Stevens v. Rothwell, 6 Moore 338; Moran v. Tyrrell, 5 I. J. O. S. 148. Special circumstances may be taken into consideration: Rooney v. Farrell, I. R. 5 C. L. 377. Poundage may be deducted on the whole levy: Davies v. Edmunds, 1 Dowl. & L. 395. Upon the affidavits it is plain that the bankrupt assented to the employment of the auctioneer, and even made a request that his name should be kept out of the auction bills; and if this were so, the Court should hold that the auctioneer was employed by the bankrupt’s authority, and at his request. As to the costs of the judgments and executions, it is true that the attorney in each action was the same person, but the affidavits show that the writs had been handed to the sheriff simultaneously, and it was the sheriff’s duty to sell under both: Watson on Sheriffs, p. 248. When a surplus remains after satisfying the executions, the sheriff may retain it till applied for by the execution debtor; Atkinson on Sheriffs, 236; Impey, 132. Again, it should not be held that notice to an attorney in a matter of this kind was notice to his client. Notice of an act of bankruptcy ought to be brought home to the person who is to be visited with the consequences of it, and the client ought not to be deprived of his costs because the attorney happened to be also the attorney for another execution creditor. The 54th section is express in its terms, and allows the sheriff to deduct the costs of the action in respect of which the judgment debt is levied by seizure and sale; and could it be said that, when two writs are simultaneously lodged, the sheriff is to decide which of the plaintiffs shall and which shall not get his costs? The only remaining question is as to the amount of the sheriff’s poundage. It is true the sheriff had sold considerably more than enough to satisfy the two writs, but the affidavits show that he did so at the request of the execution debtor, in order to pay rates and a private debt. Byrne v. Hutchinson is distinguishable. There, in order to levy a debt of £30, the sheriff seized and sold a term of years which brought £530, and the Court held that he could not retain poundage on the larger sum. A different rule might be applied where the sheriff, having properly sold enough and no more than sufficed to satisfy the two executions, was requested by the debtor to sell a further amount of goods to pay other demands. *97

Miller, J.

This case has been very clearly argued, and although the amount involved is small, some questions of considerable interest have been raised. I entirely yield to the view of the law contended for by Mr. Kisbey, that a sheriff is not entitled to charge anything but what the statute gives him, unless expenses have been incurred at the request or by the authority of the execution debtor. The cases establish that principle. But I entertain no doubt that, as a matter of fact, the execution debtor did, in this instance, authorise the employment of the auctioneer. It was not that he knew and did not dissent, but that he took steps showing assent and authority. The execution debtor was not content to leave the goods seized upon his own premises, but himself brought them to the sheriff’s office. Could it be supposed that he thought the sheriff would himself sell them there? Obviously, he knew and intended that they should be removed from his own premises for sale, and, if so, that they should be sold in some public sale-rooms. But, moreover, it is not denied that he requested that his name should not be given in the advertisements and auction bills. I hold this to be a direct recognition of the auction, amounting to an authority and request under all the circumstances; and therefore, I hold that the auctioneer’s fees and the costs of advertisements and bills were properly deducted by the sheriff, and come under the head of “expenses” mentioned in the 54th section. Then, comes the question of the second sum of £7 4s. 11d., costs of one of the two actions. It was contended that an act of bankruptcy was committed as soon as there was a seizure and sale under a judgment for a sum exceeding twenty pounds. So far I go with the counsel for the bankrupt. But, without deciding more than is necessary for the present case, I cannot hold that this was an act of bankiuptcy of which the second execution creditor had notice, assuming that we could distinguish between first and second. It was said that the attorney for both execution creditors was the same person; but notice of the act of bankruptcy to the attorney is not notice to the client, and therefore I hold that the sheriff properly paid the costs of each action, and deducted them from the sums levied before handing the amount to the assignees. The only remaining part of the case is as to the sheriff’s poundage on the amount realised over and above what sufficed to pay the two judgment debts. I go the full length of Byrne v. Hutchinson. The sheriff can only get the fees given him by the statute, and even the assent of the execution debtor cannot enable him to take more. Therefore, the sheriff will sooner or later have to bring in the sum of £2 18s., being the poundage retained in excess of what he was entitled to. I shall not make any order that he bring in this sum, for this motion is made by and on behalf of the bankrupt; and if it had been objected to as not being made on behalf of the assignee, I would not have heard it. The bankrupt, no doubt, has carried a composition after bankruptcy, and is paying his composition, but the bankruptcy in such a case exists in full force until it is annulled. If it were even a case for refusing the motion with costs, it is unnecessary to say that costs cannot be given against a bankrupt.

Horan v Coakeley

Common Pleas Division.

11 February 1881

[1881] 15 I.L.T.R 19
Morris C.J., Lawson, Harrison JJ.

 

Motion, on behalf of defendant, to have a judgment by default, and execution, and all proceedings thereon, set aside. The writ, under the Summary Procedure Bills of Exchange Act, was on foot of a promissory note for £30. It was served Nov. 10, 1880; judgment by default was marked Nov. 26, and a writ of fi. fa. was lodged with the sheriff Nov. 29. An affidavit on behalf of defendant stated that on Nov. 15, when he was about to sell his cattle at a fair, in order to realise money for the payment of the debt, plaintiff, who was his brother-in-law, told him he would not press him for payment, and he need not sell his cattle, adding that it was on account of his wife and children, and not of himself. Defendant also alleged that, owing to further and subsequent conversations with plaintiff, who referred him to his solicitor, he was under the impression and belief that no further proceedings were to be taken against him in the action, and he heard no more on the subject from the plaintiff or his solicitor, or anyone else, till he was informed by some person on Dec. 9th that his farm and public-house had been sold by the sheriff by auction on Dec. 7th.

Plaintiff’s affidavit denied that there was any foundation for defendant’s assertion, that he had agreed to give time. Defendant, on December 1, wrote to plaintiff’s solicitor, begging for time and promising to pay the following March. The solicitor wrote in reply, on December 2, that he had delayed longer than he was justified in placing the execution in hands of the sheriff. The sheriff or his bailiff never entered on the farm or public-house, nor did the sheriff do any act to intimate that he intended to sell them; but, having posted notices of the intended sale at Abbeyfield (which is in Co. Limerick), Castleisland, and Tralee, respectively six, nine, and twenty miles from Brosna, the town nearest defendant’s farm, and wherein the public-house is situate, four days before the sale, he sold said premises at Tralee, on December 7th, by auction. The affidavit of the auctioneer stated, that they were knocked down to plaintiff for £5, there being no other bidder. Defendant valued the farm, which contained 122 acres, held under lease, the public-house and the goods, at £750; the movable chattels being worth £150. Though subsequently offered the full amount of the judgment and costs, plaintiff refused it.

T. Wall, in support of motion, cited

Dillon v. Byrne, 1 T. R. 600;
Keightley v. Birch, 3 Camp. 524.
O’Riordan, Q.C., contra.—The proceedings up to execution were clearly regular; and the judgment cannot be set aside. No fraud is alleged. After execution issued, the proceedings were taken out of the hands of the plaintiff, and the plaintiff stands upon his lawfully acquired rights. The sheriff need not enter on the lands before the sale; but if the defendant has any right of action, it is against the sheriff, On a *19 motion the Court will not set aside a regular sale. He cited Murphy v. Sandes, Ir. R. 10 C. L. 309, 10 Ir. L. T. Dig. 28.

Morris, C.J.

The circumstances of this case are of a very strange nature. The affidavits show that there were very considerable discussions between the parties as to giving time to pay the debt. We do not, however, view these transactions as a ground for setting aside the judgment. The plaintiff, as appears from the several dates, proceeded with what I will call reasonable haste and expedition. Considering that Kerry is the farthest county in Ireland from Dublin, the fi. fa. reached the sheriff almost as quickly as it possibly could. Passing on, we come to the extravagant and extraordinary proceedings which followed. No doubt the letter from the plaintiff’s solicitor of December 2 put the defendant at arm’s length, but it never informed him that the writ had been put in the sheriff’s hands on November 29, and that instructions had been, probably before this, given to the printer of the notices. And then they proceeded to sell all this valuable property although the movable goods alone were four times the value of the debt. This auction was a most audacious and fraudulent proceeding. The notices were posted at long distances from the premises, no notice was given to the defendant or posted in the locality where the value of the property would be known, and where the buyers might be expected to attend. [The learned Judge then read the conclusion of his judgment in Murphy v. Sandes (ubi supra) as to advertising sales.] I consider something more than mere advertisement should be done by the sheriff before he sells. I will not prostitute the term by calling it a sale; there seems to have been no one present. We will set aside this execution and all the proceedings thereon, and let the judgment stand on terms of defendant paying the amount of the debt and costs within one week, in default of which execution may issue.

Harrison, J.

I concur. I consider that what occurred did not amount to a sale.

Ryan v Nolan

Exchequer Division.

15 June 1881

[1881] 15 I.L.T.R 91
Palles C.B., Fitzgerald B.

June 10, 15, 1881

 

Motion, on behalf of defendant, to set aside a sheriff’s sale under a fi. fa., on the ground that it was unnecessary and an abuse of the powers of the Court, and without any due or proper notice, and a surprise and fraud on defendant, and at a gross under-value.

The plaintiffs were trustees of the settlement of Frances Power on her marriage with John Power. The action was for £102 10s., being a half-year’s rent due Sept. 29, 1880, by the defendant as tenant of the lands of Ringville, in the County of Tipperary, under a lease of November, 1878, for 21 years, in which the said Frances had a life interest to her separate use. Judgment was marked, and a writ of fi. fa. issued to the sheriff April 20, 1881, which was executed by seizing the defendant’s interest in the lands. The affidavit of defendant stated that he heard nothing of the proceedings in the action from the service of the writ of summons till the seizure; that there were then on the premises stock and movables (which he specified) to the value of £427; that he asked the bailiff to seize these, which he refused to do; that he wrote to Mr. M’Dermott, the sub-sheriff, asking him to give him (the defendant) a couple of days notice of any intended sale of the farm, but he heard no more till *91 May 3rd, when he received a letter at his residence on the farm, 35 miles from Kilkenny, apprising him that on that very day his farm would be sold; that he immediately telegraphed to postpone the sale, and received a reply that the farm had just been sold. It appeared that no one was present at the sale except the sub-sheriff and his bailiff, and Mr. Power and an assistant of his solicitor’s. On the farm being put up to auction at the Court-house of Kilkenny, the sheriff himself bid £51, and it was knocked down to Power for £53. On May 21st, defendant tendered to plaintiffs the amount of said execution and costs, which they refused. On May 11th, the sheriff executed an assignment to Power, who served a writ of ejectment on defendant the following day. Defendant alleged that the sheriff bid in order to give the sale a kind of colour, and that the sale was a fraudulent contrivance to deprive him of his lands. The affidavit of plaintiffs’ solicitor alleged that since the plaintiffs purchased the lands in 1880, they had been compelled to institute these actions against defendant for the three half-yearly gales of rent; that on his warning defendant in March, 1880, against cutting shrubs and trees without consent, and ploughing (as he had done) 40 acres out of 75, and on calling on him to repair the house and offices, he replied that he would take three corn crops successively out of the lands, sell all the straw, give no manure but a dust of artificial manure to the last crop, and then pitch up the land; that he would easily evade the law and his lease too, and in three or four years he expected the landlords and agents would be swept out of the country; that on another occasion defendant said to him he would sow the land with £5 worth of garlic, so that no man again could put milch cows thereon, and that he has in part acted on these threats. This was corroborated by Power, who was present at the interviews. It was sworn that a sale of the farm was necessary, as a sale of the stock and chattels in the existing state of the country would be futile. The sheriff swore that, on his bailiff informing him that there was not sufficient stock or movables on the premises, he, on April 30th, caused notices of a sale of the farm and growing crops to be posted in the usual way in and about the City of Kilkenny; that on April 30th, he wrote to defendant apprising him of the sale, and on same day gave the letter to one of his men to post. [The Kilkenny post mark on the envelope bore date May 2.] The bailiff swore that on the occasion of the seizure, defendant himself informed him that there was not sufficient movables to satisfy the judgment. In a further affidavit defendant denied this, and added that, as the bailiff only came to the house from the gate, he could not possibly have seen all his cattle and stock; he also denied that he had threatened to sow the land with garlic.

 

 

Fitzgerald, B.

This is an application to set aside a sale under a writ of fi. fa., and I think it ought to be refused. [His Lordship stated the facts.] The defendant swears falsely that there was no notice or advertisement of any kind touching or relating to the said sale, but it is proved that there was. If there were any impropriety or irregularity in the conduct of the sheriff in the execution or at the sale, the proper mode of trying it would be by an action by defendant against the sheriff, of which there are many instances in the books; Phillips v. Bacon, 9 East. 298; Gowler v. Chaplin, 2 Ex. 503; but cases of summarily setting aside a sale under an execution are very few, and in these the plaintiffs were the purchasers, and there was collusion, in the proof of which gross under-value was doubtless a principal element. I know nothing to prevent a plaintiff from being a bidder, and there is no obligation on a plaintiff to see after the mode and proper conduct of the sale. It is not necessary for a sheriff to give notice of the sale to the defendant, and the sheriff swears he acted bona fide. Of the alleged under-value, there is no evidence. A single passage in defendant’s affidavit places the real value at £400, but the extent of his interest in the lease is not stated, and no particulars are given of what the crops consisted, while Power swears it was not of anything like that value. An inquiry into the sheriff’s conduct is relevant only so far as it is necessary to see if there was any collusion; there is no evidence of collusion, and he positively swears against it. It is significant that allusion is made by both Power and the sheriff to the present state of the country, and the threats of the defendant show he was prepared to avail himself of it. After the seizure, there was no offer on the part of the defendant to pay the amount of the judgment; no tender was made till after the sale. The time at which the offer was made is alone sufficient to disentitle defendant to any relief. No satisfactory case of collusion having been made out, I think this motion should be refused.

Palles, C.B.

I have come to an opposite conclusion from my brother Fitzgerald. If we are to decide on the affidavits before us, I am of opinion we should decide for the defendant. The relations of the parties as landlord and tenant were not of the happiest description, and I am as anxious as my brother Fitzgerald to condemn the defendant’s conduct. If there is any legitimate mode of visiting on him those breaches of conditions—for such they are—there can beano objection to Mr. Power resorting to those means. At any rate, an intelligible reason is given for the plaintiff’s wishing to get rid of such a tenant, but then it must be in the ordinary and legitimate course of law; and if the sale cannot be upheld upon legal grounds, I cannot see how the misconduct of the defendant can support it. As to the seizure by the bailiff, there is a conflict in the affidavits; but whether the defendant had or had not sufficient movables to satisfy the judgment is immaterial. I entertain no doubt that the sheriff was entitled to seize the term of years. Defendant asked that notice should be given him of any intended sale, but he got none till the day of the sale. Were there nothing else in the case this would not per se be sufficient to set aside the sale. The sheriff is not bound to give such notice, as distinguished from notice to the public or intending purchasers; and a defendant who deliberately abstains after execution from paying the judgment debt cannot complain solely on this ground. At the same time, this notice, in this particular case, is important, taken in connexion with the next ground for setting aside the sale. The defendant swears there was no notice to purchasers; and my brother Fitzgerald describes this statement as false. I think this word too strong. The only notices posted were at Kilkenny, 35 miles from where the defendant resided, and then only on the same day as the sheriff says he wrote to inform defendant. I cannot here impute intentional falsehood. The next circumstance is that the sheriff himself bid £51; it is not denied, and no explanation is given of this conduct. The defendant says it was to give colour to the sale; and this is of importance when the real value is stated to have been £400. Power demes this in a general way, but he does not say what was the value. I arrive, then, at two conclusions of fact. First, there was insufficient notice of the sale. Posting notices in Kilkenny on a Saturday, of a farm 35 miles away, for the succeeding Tuesday, is little more than illusive.1 The sheriff says that owing to the *92 condition of the country it is useless to give notice, for he has had 10 sales within the last fortnight, all of which were attended by none but the plaintiffs in the different executions. I assume that the condition of the country now is the same as it was at the time of the sale; and I assume that at these sales the usual bidders are persons present in the interest of the parties. It is unexplained why notice was not given to defendant as one of these parties. Taking the country in its normal condition, it is the duty of the sheriff to give reasonable notice to intending purchasers. No care was taken to reach these, it being assumed that there would be none such present. Whilst I agree with my brother that there is no obligation on a sheriff to give notice to the defendant of the sale, such notice is here important as forming part of the notice to intending purchasers. Then comes an unpleasant fact in this case—a fact vital to the defendant. He requested notice of the intended sale. The answer is not posted till it cannot reach him till the sale is practically over. Is it saying too much to say that the Court should have the fullest explanation of this? There we have the non attendance of the defendant, or anyone representing him. This should have attracted the attention of the sheriff. He should have made inquiries into the circumstances, and when he found there was no one present, representing the defendant, he should have stayed his hand. The notice, then, was illusive, whether we consider the country in its normal or its abnormal condition. The second conclusion of fact is that the sale was had at a gross under-value. The affidavits do not affect to make out that there was any proportion between the sum paid and the value of the farm sold; the price being so very small the sheriff ought not to have proceeded—he should have adjourned the sale. It was pointed out that he ought to have waited for a venditioni exponas (Keightley v. Birch, 3 Camp. 524), which means that he should have made a return that there were no buyers, when a venditioni exponas would have issued, and he could sell for the best price that could be gotten. This was misconduct on the part of the sheriff. I see no argument to support a sale for £53 that would not support a sale at a much less—at a nominal—sum. There are these two circumstances in the case: (1) Power was the purchaser; (2) the sheriff bid. It is true Power is not the plaintiff, he is the husband of the equitable tenant for life, who is entitled to her separate use; but he was the dominus litus. If a third party had bid £53 and Power had objected, the sheriff should have adjourned the sale, though not the plaintiff—he is not an utter stranger. But the sale cannot be invalidated merely because Power bid: Stratford v. Twynam, Jacob, 418. The bidding of the sheriff was misconduct; it was either a mere sham or a bid in the interest of Power—whichever form of the dilemma we take, it was not a bona fide sale. If the latter, it was substantially a contract by Power with Power’s agent. But more probably it was a mere sham; then the whole transaction is pervaded by the same unreality; and it affects the bid for £53 as well as the bid for £51. A sale under an execution need not necessarily be by auction; it may be by private contract. A sale by private contract, without notice to defendant, for £53 would be invalid. This was a sale by private contract under colour of a sale by auction. I admit the full force of my brother Fitzgerald’s observation as to the impropriety of dealing with such a serious question on a mere summary application. If there was a more satisfactory mode of trial, by examination and cross-examination in open court, instead of by these unsatisfactory affidavits, I would not listen to this motion. But I do not see that it could be raised by an action of ejectment. Besides we have perfect jurisdiction to see that the process of the Court is not abused, and we should control the action of our officers; and, having this jurisdiction, I do not think it should be declined.

On the whole, I think there was misconduct on the part of the sheriff, resulting in a sale at what courts of equity have called “gross under-value.” There was no moral misconduct on the part of the purchaser; but he had notice, and he availed himself of the misconduct of the sheriff, and in consequence obtained the farm at an undervalue.

The order, then, that I think should be made is that the plaintiff be at liberty to take an issue to find whether the sale was proper; or, in default, that the sale be set aside. I have given my judgment at length, because I have the misfortune of differing from my brother Fitzgerald.

Moher v O’Grady

Exchequer Division.

18 January 1879

[1879] 13 I.L.T.R 146
Fitzgerald, Dowse BB.

J

Demurrer to paragraphs 1 to 4 of the plaintiff’s statement of claim.—The action was brought to recover damages for the defendant’s breach of contract in not having a sale by a sheriff, who held an execution issued by the defendant, carried out according to an agreement entered into between the plaintiffs and the defendant.

The paragraphs of the statement of claim demurred to, were as follow:—1. The plaintiffs were by a mortgage deed, dated the 19th day of August, 1875, mortgagees of the chattel interest of William Moher in the lands of Crinaghtane, in the County of Cork, for £200 and interest; and one Edward Mahony, subsequently to the date of the said mortgage, obtained a judgment for a certain sum of money against the said William Moher, and the defendant as his solicitor issued a writ of fieri facias on the said judgment, and lodged the same for execution with the sheriff of the County of Cork. 2. The defendant having so issued and lodged the said writ, proposed to the plaintiffs, and it was thereupon agreed by and between the plaintiffs and defendant, that in consideration that the plaintiffs as such mortgagees would consent to a sale of the said interest in the lands by the defendant, through the said sheriff, under the said writ of fieri facias, he, the said defendant, promised and undertook to and with the plaintiffs, that he, the said defendant, would take care to have the same sold, subject to and guarded by proper conditions of sale, so that the said sale should be completed, and the plaintiffs’ said mortgage debt should, in the first instance, be paid out of the proceeds of the sale. 3. Although the plaintiffs, for and in consideration of the said promise and undertaking, did give the said consent to the said sale on the terms aforesaid, and although the defendant accordingly proceeded to sell, and did sell through the said sheriff, under the said writ, the said William Moher’s interest in the said land, and the same was sold to one Maurice Rice for the sum of £700: 4. Yet, the defendant did not take care to have the same sold subject to and guarded by proper conditions of sale, so that the said sale should be completed, and the plaintiffs’ said mortgage debt should, in the first instance, be paid out of the proceeds of the said sale. And by reason thereof the said sale was not completed, and the plaintiffs’ said mortgage debt was not paid out of the proceeds of the said sale.

James Murphy, Q.C., and Shannon, for the defendant, in support of the demurrer.—They cited Griffin v. Caddell, I. R., 9 C. L. 488, s. c. 9 Ir. L. T. Rep. 225, judgment of Whiteside, C.J.; Eichholz v. Bannister, 17 C. B. N. S. 722; Nerot v. Wallace, 3 T. R. 17.

W. M. Johnson, Q.C. (with him, O’Riordan ), for the plaintiffs, contra.—They cited Tennent v. Robinson, 2 Ir. C. L. R. 142; Chitty on Contracts (10th ed.) pp. 44, 45.

Fitzgerald, B.

This case comes before us on the defendant’s demurrer to the first, second, third, and fourth paragraphs of the plaintiffs’ statement of claim.

The first paragraph shows that one William Moher was possessed of a chattel interest, by which I presume is meant a term of years, in certain lands in the County of Cork; that a judgment for a sum of money was obtained against him by one Mahony; that the defendant, as solicitor of Mahony, issued a writ of fieri facias on the judgment, and lodged it for execution with the sheriff of Cork.

On the state of facts so far, I may observe that the only duty of the sheriff, as regards the term of years, would have been to sell the interest of the judgment debtor in the lands, and apply the proceeds of the sale, in the first instance, in satisfaction of the judgment. But it is also stated in the first paragraph that previously to the date of the judgment, Moher had mortgaged his term to the plaintiffs to secure the sum of £200 and interest; so that when the judgment was obtained, and when the writ was delivered to the sheriff, the debtor had nothing but the equity of redemption of the term. The effect of this further fact is, that the sheriff had no duty whatever to discharge under the writ as regards the term of years or the debtor’s interest therein.

The second paragraph then states an agreement made while the writ was still in the sheriff’s hands, between the plaintiffs and the defendant—that is to say, in consideration that the plaintiffs, as mortgagees, would consent to a sale of the said interest by the defendant, through the sheriff; and under the writ of fieri facias, the defendant promised that he, the defendant, would take care to have the same ( i.e., the chattel interest) sold subject to and guarded by proper conditions of sale, so that the said sale should be completed, and that the plaintiffs’ mortgage debt should, in the first instance, be paid out of the proceeds of the sale. *146

It seems to me that as the sale was to be made through the sheriff, and under the writ of fieri facias, this was an undertaking by the defendant for the act of the sheriff, that the chattel interest, which was not in the execution debtor, but the plaintiffs, should be sold as the chattel interest of the debtor under the writ; and that the proceeds of the sale should be, in the first instance, applied not to payment of the execution creditor, but of the plaintiffs’ mortgage debt; that, in short, the sheriff should, under colour of the writ, do what under the writ he was not authorised to do—sell the interest of another person than the debtor, and apply the proceeds of such sale, in the first instance, to another person than the execution creditor.

That the sale was to be a sale of the chattel interest as the interest of the debtor is made still more clear by the third paragraph, which states that the plaintiffs did consent to the sale being made on the terms aforesaid, and the defendant accordingly proceeded to sell, and did sell, through the sheriff, and under the writ, the debtor’s interest in the lands to one Rice for £700.

The fourth paragraph then states, as breach of the agreement, that the defendant did not take care to have the same ( i.e., the debtor’s interest in the lands) sold subject to, and guarded by, proper conditions of sale, so that the sale should be completed, and the plaintiff’s mortgage debt in the first instance paid out of the proceeds of the sale, and that by reason of such default the sale was not completed, and the plaintiffs’ mortgage debt was not paid.

It appears to me that the act of the sheriff, for performance of which the defendant undertook, was, in its nature, the act of an officer of a court of justice in discharge of his duty, which would be a violation of that duty in two respects; the sale under the writ of an interest, the sale of which the writ did not authorise, as something which it was not, and an application of the proceeds of the sale of it, as such, to a person other than the execution creditor.

I am of opinion that such a sale by the sheriff, under colour of the writ, and such application of the proceeds would be a breach of public duty on his part, and that a promise by a third party to procure the commission by him of such breach of duty cannot be enforced: Nerot v. Wallace, 3 T. R. 17.

The main argument for the pleading I understood to be, that the only persons who could by any possibility be injured by a sale of the term through the sheriff were the mortgagees who consented; the execution creditor, whose consent the defendant, who was his solicitor in the execution, must be presumed to have had, or might have had, and the mortgagor, whose consent it must be considered that the defendant had promised to secure; and that assuming all those assents to have been obtained, the agreement might have been lawfully carried out on the principle volenti non fit injuria. I agree that while the writ was in the sheriff’s hands unexecuted, the mortgagees, the execution creditor, and the mortgagor, might together have made an effectual sale of the term, and applied the proceeds of such sale as agreed between them, and might have made such sale through an agent of their own; but I fail to see how such a sale could be legally made through the sheriff, as sheriff, and under the writ of fieri facias, without a plain breach of duty on the sheriff’s part. The public officer for executing the process of courts of justice cannot be allowed, under colour of that process, to do what the process does not authorise him to do, for the purposes of a contract between the execution creditor and a third party. I think the demurrer ought to be allowed.

Dowse, B., concurred.

Kelly v Browne

Exchequer Division.

21 February 1883

[1883] 17 I.L.T.R 23
Palles C.B., Andrews J.

 

This action, tried on the 29th June, 1882, by Lawson, J., and a jury, was brought against the defendant as former High Sheriff of the County of Mayo. The statement of claim alleged that the defendant had only levied off the goods and chattels of one Mary Coen the sum of £86 1s., being the amount endorsed upon a certain fi. fa. in an action of Kelly v. Mary Coen, and had not paid said moneys to the plaintiff; that the defendant falsely returned upon the said writ that the said Mary Coen had no goods or chattels in his bailiwick whereof he could levy the moneys on said writ; that the defendant had received from the said Mary Coen the sum of £98 for the plaintiff’s use and had not paid same; and the plaintiff claimed £150 damages for the cause of action, so stated in the 1st and 2nd paragraphs, and £86 1s. in respect of the cause of action in the 3rd paragraph of the statement of claim.

The defendant, in the statement of defence, pleaded that he did not levy the moneys endorsed on said writ, or any part thereof, and that the return to the said writ was true, and denied that he received any money for the use of the plaintiff.

At the trial it appeared that Mary Coen lived in Ballina, and kept a shop there. She was daughter of one Michael Coen, and carried on the business in succession to him, and chiefly with the stock which had been in his possession. The writ of fi. fa. was lodged with the sheriff on the 9th of March, 1881, but he having been told that there were proceedings pending in Chancery for the administration of the estate of Michael Coen, declined to seize the goods in the shop until he received an indemnity, which was given to him. On proceeding to seize the goods in the shop a cheque for the amount was given by one Devany as security that they should be forthcoming, and on subsequently coming to the conclusion that they were not seizable he returned the cheque. This was not done, however, until after this action was brought, and meanwhile it had been lodged to his credit in the bank.

The jury found for the plaintiff for £86 1s. A conditional order for a new trial having been obtained:

Carton, Q.C. (with him Eiffe ), for plaintiff, showed cause. The real question is whether there was a levy. There is no count for not levying. In order to constitute a levy it is not necessary that there should be a sale. A sheriff has been held entitled to poundage although the debt was paid before sale: Mortimore v. Cragg, 3 C. P. D. 215; Bissicks v. Bath Colliery Co., 3 Ex. D. 174. As to the question whether the goods in the shop belonged to the estate of deceased, it appeared that about half were purchased since his death. When goods are kept by an executor and treated as his own after a long time he cannot prevent them from being taken in execution: Ray v. Ray, Cooper’s Rep. 264; Quick v. Staines, 1. B & P. 293. A considerable portion of the goods in the shop had been purchased after the death of deceased. These were clearly seizable: Palmer v. Mitchell, 2 M. &. K. 672.

The Macdermot, Q.C. (with him Shannon ), for the defendant.—There is no evidence that the cheque was given for any other purpose than as an indemnity. The goods purchased since the death of deceased were purchased with his assets, and as such are assets: Abbott v. Parfitt, L. R. 6 Q. B. D. 346; Pillgrem v. Pillgrem, 18 Ch. D. 93. The execution debtor would be held responsible for these goods in an administration action in Chancery.

Palles, C.B.

[To follow them as property, and to make her chargeable for them as assets, is a different thing.]

In Lord Talbot de Malahide v. Moran, 15 Ir. L. T. Rep. 63, 8 L. R. I. 307, it was held that a farm belonging to a deceased tenant could not be seized under a fi. fa. against his widow and executrix.

Palles, C.B.—There are two questions which arise in this case on the answer to which our decision must depend: firstly, whether the judge was wrong in leaving the question to the jury as to whether there was a levy or not? and secondly, if we decide that the judge ought to have left it to the jury, whether the verdict was against the weight of evidence? Now, to my mind, it is clear to demonstration that this case was one for the jury, and the jury alone. The facts are those:—There *23 was an execution against a lady carrying on business in the house of a deceased gentleman named Coen. She is found there with a large quantity of stock. The sheriff, being in doubt whether it belongs to her personally, requires an indemnity before seizing. From this I think the jury might reasonably conclude that he agreed to levy on getting it. The indemnity was given him, on the arrangement, as the jury might conclude, that he would levy. He received a cheque for an amount exceeding the execution sufficient to cover his fees, according to his own case, in order that in the event of the goods not being forthcoming the money should be kept clearly for the purpose of covering the execution. The money is lodged by the sheriff to his own credit, and after the lapse of many months we find it still standing to his credit, and it was not repaid until after this action had commenced. We may assume that the sheriff was acting in the course of his business. His own case is that he received the money as a stakeholder. But he took no steps whatever to determine whose the money should be. He keeps it until this action is brought—his only title to keep it being that he was entitled as sheriff, or in other words, to satisfy the execution.

The second question is more difficult—namely, whether the verdict was against the weight of evidence. It does not appear whether there was a personal representative or who he was. The defendants at the trial offered to put in evidence letters of administration to his estate, but the plaintiffs objected, on what grounds I do not know, and the learned judge sustained their objection. I asked the defendants’ counsel here would he put in the letters of administration, and the plaintiffs consented, but the defendants refused to put them in. Had the plaintiffs objected here, as they did at the trial, I would have granted them a new trial, but they having declined we must treat the case as if there was no personal representative. The case is then that of a person carrying on business with the assets of a deceased person, there being no representative to his estate; and if there was nothing more in the case I would treat it as clear that there was no property which could have been seized. But I have it proved that one half of the goods were purchased after the death of the deceased, and evidence is given that these were purchased by proceeds of the sale of assets. As to that, it is, of course, a question for the jury to decide, and they are not bound to act on the statement that they were purchased by proceeds of the sale of assets. In this case you cannot hold that the property vested in the intestate or his administrator immediately on being put into the shop, although it might become assets on the application of a beneficiary. The case of Abbott v. Parfitt (6 Q. B. D. 346), cited by the Macdermot, has no application, for there the business was rightly carried on under the trusts of the will; and it is clear that goods purchased became assets. But here there is no evidence of any personal representation, or of any authority to carry on the business. The writ is placed in the hands of the sheriff at a time when there is property which may or may not be seizable. He seizes under an indemnity, and takes a cheque in satisfaction of the claim. This cheque is to be taken as representating the goods seized. If it is found that the goods are liable to seizure they are to be seized; if they are not forthcoming, he may treat the money as goods. There are two events on which the money is to be given back — (1) That the goods are not seizable; (2) that they are forthcoming when shown to be seizable. In one case only is the sheriff entitled to hold the cheque—namely, if the goods are liable to seizure and not forthcoming. He kept the cheque after many months, and, in my opinion, he is now estopped from Baying that he did not receive it for the seizure.

Andrews, J.

I entertain no doubt that the judge was right in leaving the question to the jury, and that there was evidence on which the jury might find that there were goods in the shop belonging to the debtor. I agree that the verdict should stand.

 

Dunville and Company v Birney

Queen’s Bench Division.

1 October 1898

[1899] 33 I.L.T.R 20
Murphy, Boyd, Kenny JJ.

 

Motion on notice by the plaintiffs that the sheriff of the County of Tipperary do amend his return to the writ of fi. fa. issued by the plaintiffs by giving the particulars of all decrees and writs of fi. fa. affecting the property seized by the sheriff, and sums realized therefor, and particulars of any payments made or guarantees given to the sheriff by or on behalf of the defendant in respect of the sale of defendant’s goods, and by showing how all moneys paid or realized were disposed of, giving particulars of all deductions for fees, or in the alternative that the return be set aside as insufficient and bad in law.

On 3rd Sept., 1897, plaintiffs obtained judgment against the defendant for £46 4s. 4d. and £5 11s. costs, and on the same day the writ of fi. fa. was lodged with the returning officer for the sheriff of the County of Tipperary. On the 21st Sept. the sub-sheriff wrote to the plaintiffs’ solicitor the following letter:—“21st Sept., 1897. Dear Sirs,—I seized under your writ and a number of prior writs, and found that defendant had not goods valuable enough to satisfy probably the first writ. However, a considerable amount of money is due to him, and he is issuing a number of processes for the coming sessions. He has also some straw to sell, which in my hands would be more or less valueless. Accordingly a local auctioneer advanced some money to me, and has guaranteed some further sums, so that I hope to collect all debts in full. If you or any creditor presses for a sale the benefit of the guarantee would be lost, so that it is in the interest of all persons to allow me to arrange as I can.” And on the 11th Nov., 1897, wrote again—“Dear Sirs,—I seized defendant’s chattel interest in some land, and a small public-house, but have not yet sold. I also seized all his stock-in trade and furniture in the house, but they seem insufficient to meet the rent claim, and I consequently withdrew therefrom. A local auctioneer, who has been selling grass, &c., for him, promised to endeavour to raise sufficient money to pay the various executions. I will press the matter, and will otherwise sell the chattel interests, in which case the creditors should be prepared to bid.”

On the 23rd Feb., 1898, the sub-sheriff wrote a letter enclosing a return of nulla bona.

Further correspondence passed in which plaintiffs’ solicitor requested particulars of all prior executions, and of the entire amount levied since delivery of writ of fi. fa. and the manner in which money was applied, and not being satisfied with the explanation applied to the Court as above.

Pim, for the judgment creditor (plaintiff).— Alcock v. Kavanagh, 2 Jones 484; Williams v. Murphy, 4 Ir. C. L. R. 13.

Ball, for the sheriff, was not called upon.

Murphy, J.

The simple return of nulla bona is on the face of it a good return. It is open to anyone to impeach it, and the return in any other form would be an argumentative return.

Armytage v Ladd

Court of Appeal

15 February 1899

[1899] 33 I.L.T.R 54
Fitzgibbon L.J, Walker, Holmes L.JJ

 

Appeal from an order of Murphy, J., refusing a motion on behalf of the defendant to set aside a Sheriff’s sale held in Co. Cork, near Castletownroche. Defendant held, at a fair rent of £400, a farm of 489 acres. Judgment was marked against him and a fi. fa. issued for £312, arrears of rent. The Sheriff of Co. Cork proceeded to sell the tenant’s interest in the holding. Advertisements of the sale were posted on the farm in Castletownroche, and in the Courthouse, Cork. The sale took place on Aug. 20, 1898, and no one was present but the defendant, a few persons who did not bid, and the landlord’s sub-agent, who offered £100 for the farm, in trust for the landlord, at which price it was sold to him. Subsequently negotiations were entered into between the landlord and the tenant for an arrangement, which were unsuccessful, and finally an action was brought, on the Sheriff’s assignment, for possession of the lands, and that action was now pending. The appellant (defendant) contended that there had not been sufficient publicity given to the sale, that there had not been long enough notice (3 days), that there were not a sufficient number of notices *54 placarded, and that the lands were sold far below their proper value, the appellant’s interest being worth, at least, £1,000.

Representation
Bourke, Q.C., and Redmond Barry, for the appellant.
Matheson, Q.C., and F. P. Hamilton, for the respondent.
Cases cited:—

Dillon v. Byrne, Ir. Term R. 600;
Keightley v. Birch, 3. Camp. 521;
Edge v. Kavanagh, 22 Ir. L. T. & S. J. 624;
24 L. R. Ir. 1;
Cramer v. Murphy, 20 L. R. Ir. 572.
FitzGibbon, L.J.

The application in this case is to set aside not only a Sheriff’s sale of property, which took place 20th August, 1898, but also the conveyance of it, which was made 21st Nov., 1898. The terms of the application can hardly be brought to agree with the actual facts of the case—they come much nearer the facts of a former case (Edge v. Kavanagh), to which this was thought to be similar. In that case there was a sale of a farm, 10 miles from Maryborough and 4 from Abbeyleix, of which the defendant had no notice, and also, except for a notice posted in Maryborough—not because it was the nearest town, but the county town—there was no advertisement of the sale at all. There were no notices posted on the lands, and no knowledge on the part of the defendant. There were no advertisements in the papers, and the holding was knocked down to the landlord for £5. In that state of facts, Cramer v. Murphy was cited, in which a sale of a farm for £1 was held good, because there had been two adjournments of the sale, and because the Court was satisfied that the absence of bidders could not have been avoided by the Sheriff. Edge v. Kavanagh is an authority that the Court has jurisdiction to regard a sale as not being a real sale at all, and further that, where there has been a clear departure by the Sheriff from his duty, there is also a clear remedy for the party injured, by taking away from the purchaser the advantage obtained, and selling over again. [His Lordship here read a passage from the judgment of Andrews, J., in Edge v. Kavanagh, 24 L. R. Ir., at p. 6.] Taking this as a general statement of the law, let us apply it to the present case. This farm is a large tract of 489 acres, held at a rent of £400 a year, and at that £400 a year this large tract should be worth a considerable sum of money, if sold in the ordinary way, as distinguished from a Sheriff’s sale. The sale, taken together with previous circumstances, shows that the tenant was in great pecuniary difficulties, and that he was not in a position to expect any great indulgence from his landlord. The place was duly seized, and special posters advertising the sale were printed, which were carefully prepared and posted in the county town, on the farm, and also in several places in the nearest village, Castletownroche. In other words, the exact thing which Andrews, J., said ought to have been done in Edge v. Kavanagh was done here. The notice was quite sufficient. The matter duly came to a sale in the Courthouse, Cork, and we cannot hold that the Sheriff had exposed himself to an action on the ground of insufficient notice. The defendant in person attended the sale, and the landlord’s representative was also present. There is no evidence of outside competition; but before it can be attempted to prove that there was no real sale, there must be evidence to show that further publicity would have brought purchasers there, and that they would have bid more than was given. It was not knocked down for a nominal sum, as in Edge v. Kavanagh, and the Sheriff did his best to get as much as possible, and finally sold to the representative of the landlord for £100. That £100 meant a great deal more than £100 to anyone else but the landlord, and we must look into the matter to see what that price meant to anyone else. At the date of the sale there was £366 rent due, and anyone who bought would have become liable, on Sept. 29, for £200 more. Therefore, a purchaser before getting any profit from the lands would have had to expend £566; in addition he would have had the 489 acres on hands, with the winter approaching, and another £200 would become due on March 25th, before any profit could be got out of it. If the profit was to be derived from meadowing, he would not get any money before June or July, and then only by instalments. It is not surprising that there were no bidders; but, further, what was sold was not actual possession, but only a right to bring an action to get possession. As a matter of fact, the original tenant is in possession still. These Sheriff’s sales do not give the same satisfactory title as a purchaser gets at an ordinary sale, that is the depreciation necessary from the mode of sale itself. But all that has been said only leads up to what is conclusive in the case. Within a week of the sale there was a correspondence between the landlord’s agent and the tenant, in which the former offered the farm to the tenant again on payment of the rent due and arrears, and even gave him permission to sell to any solvent purchaser. What a contrast to a case where a purchaser is trying to hold on to a harddriven bargain! It was practically an offer to give back the farm to the execution debtor at £100 less than the sale price. Gross undervalue must be from a realisable point of view. Subsequently the landlord offered to allow the tenant to subdivide the farm, and return one portion and sell the other, on condition that the rent and arrears were paid. He got from Aug. 20 to Nov. 1 to carry out this arrangement; the conveyance did not take place until Nov. 21. The appeal must be dismissed with costs.

Walker and Holmes, L.JJ., concurred.

Dogherty v Nelson

High Court of Justice.

Queen’s Bench Division.

1 November 1894

[1894] 28 I.L.T.R 146
Harrison, Johnson, Holmes JJ.

 

Civil Bill action of ejectment on the title by which the plaintiff sought to recover certain premises situate in Malin-street, Carndonagh, in the County of Donegal, lately in the occupation of Neal Nelson, deceased. In January, 1894, His Honor Judge Webb gave a decree to the plaintiff for possession, against which the defendant appealed, and the case now came before the Queen’s Bench Division on a special case slated by Andrews, J., at the Spring Assizes. By admissions on both sides it appeared that Neal Nelson, deceased, had been tenant from year to year of the premises, which were under £30 valuation, up to the time of his death, in April, 1891. The defendant, widow of the deceased, continued in occupation of said premises, and was accepted as tenant from Nov., 1891. In June, 1892, she was granted a lease of the premises to herself personally, for a term of 100 years, beginning the 1st Nov., 1892. On the 25th March, 1893, a judgment debt for £34 9s. 6d., with £5 16s. costs de bonis test., was recovered in the Exchequer Division, at the suit of Bridget Crampsey, against the defendant as executrix of Neal Nelson, and a writ of fi. fa. was issued and lodged with the sheriff on the 27th March, 1893. Subsequent to the lodgment of the writ with the sheriff, but before its execution, the defendant had deposited the lease as equitable security with another creditor of the deceased for money advanced, and notice of the deposit had been given to the sheriff before the execution of the writ. The writ was executed, and an assignment of the interest of Neal Nelson, deceased, was made by the sheriff on 21st Sept., 1893, to the plaintiff Dogherty. The defendant had not taken out administration to N. Nelson, deceased.

D. S. Henry, for appellant.—When there is a judgment against the goods and chattels of a deceased person in the hands of an executor, you cannot take the executor’s personal goods, and the same consideration applies to an executor de son tort. It is questionable here whether there had not been practically a surrender of the premises as executor, and there was no interest of the deceased in the premises that he could seize. Again, in a judgment against an executor de son tort it is not open to the sheriff to pass any title to a chattel real. The interest cannot pass by delivery, and there is no estate in the executor de son tort which he can convey. No doubt there would be a liability for the profits, but the corpus cannot he dealt with by the sheriff, there being no estate. Chattels can be vested by delivery, but a chattel real must be vested by way of conveyance, but there was no estate here for the sheriff to convey. Under s. 15 of the Court of Probate Act (Ir.), 1859, the estate would be in the hands of the Judge of the Court of Probate: Williams v. Williams, *146 20 Ir. L. T. R. 46; Yardley v. Arnold, C. & M. 434; Mayor of Norwich v. Johnson, 3 Levins R. 35; Cresswell v. Cresswell, 13 Ir. L. T. & S. J. 374; Doe dec. Hornby v. Glenn, 1 A. & E. 49; Williams v. Heales, L. R. 9 C. P. 177; 3 Bac. Abr. Ex. & Adm. (B.) Wm. on Executors (Ed. 1893), 209, 560; O’Brien v. Murray, 17 Ir. C. L. R. 46; Garth v. Taylor, 1 Freem. 261.

Wylie, Q.C., for respondent.—There is no distinction between chattels personal and chattels real in the hands of an executor de son tort, and the writ de bonis testatoris goes behind all questions of executor or executor de son tort. There can be a delivery of a chattel real, the only difference from a delivery of a chattel pure being in the method of delivery. If there be no executor then the sheriff conveys as from the estate: In re Morris, 3 L. R. Ir. 451; Kearney v. Ryan, 2 L. R. Ir. 61; Paull v. Simpson, 9 A. & E. (N.S.) 365; Fielding v. Cronin, 16 L. R. Ir. 379; Talbot de Malahide (Lord) v. Moran, 8 L. R. Ir. 307; 2 Prest. on Convey. 319, et seq.

Harrison, J.

We are all of opinion that the decree should be affirmed. In Williams on Executors, at p. 262 of the edition of 1879, describing what acts will constitute an executor de son tort, there is this passage: “So there may be a tort executor of a term for years, as where a man enters upon the lands leased to the deceased, and takes possession, claiming the particular estate; though with respect to a term of years in reversion there can be no executorship of this nature because it is incapable of entry;” and the authorities are collected by him. This is a clear statement, and the facts that appear here bring the case within its terms, for the wife after the death of the husband stayed in possession of the lands. It is not necessary for us, upon the facts, to consider the effect of the lease that she obtained in her own name. A great deal has been said as to how the chattel real can be disposed of by the sheriff, but the answer has been given during the argument by my brother Holmes, that in reality there is a delivery of the chattel real as well as of the chattels pure, the difference being merely a difference of procedure and method of delivery. They would be both dealt with in the due course of administration, and indeed this was done in this very matter.

Johnson and Holmes, JJ., concurred.