{"id":21363,"date":"2018-08-31T09:34:02","date_gmt":"2018-08-31T09:34:02","guid":{"rendered":"https:\/\/legalblog.ie\/sheriff-ii\/"},"modified":"2023-06-17T13:18:41","modified_gmt":"2023-06-17T13:18:41","slug":"sheriff-ii","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/sheriff-ii\/","title":{"rendered":"Sheriff Execution II"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/sheriff-ii\/#General\" title=\"General\">General<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/sheriff-ii\/#Breaking_and_Entering\" title=\"Breaking and Entering\">Breaking and Entering<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/sheriff-ii\/#Fieri_Facias\" title=\"Fieri Facias\">Fieri Facias<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/sheriff-ii\/#Goods_which_may_be_Seized\" title=\"Goods which may be Seized\">Goods which may be Seized<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/sheriff-ii\/#Exempt_Goods\" title=\"Exempt Goods\">Exempt Goods<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/sheriff-ii\/#Sale\" title=\"Sale\">Sale<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-7\" href=\"https:\/\/legalblog.ie\/sheriff-ii\/#Completion_of_Execution\" title=\"Completion of Execution\">Completion of Execution<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-8\" href=\"https:\/\/legalblog.ie\/sheriff-ii\/#Fees\" title=\"Fees\">Fees<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"General\"><\/span>General<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The office of Sheriff is a very ancient office, dating back to the early middle ages.\u00a0 Formerly, they played a variety of roles in administration, the judicial sphere as well as in enforcing the law. One of their principal remaining roles is the enforcement of court orders, by the seizure and sale of goods<\/p>\n<p>Where no sheriff stands appointed, the County Register\\&#8217;s exercise the functions of the sheriff.\u00a0 There are no sheriffs outside the principal urban areas. Originally, the sheriff executed superior court (principally High Court) orders.\u00a0 Their functions in this regard have been extended by statute to the execution of District and Circuit Court orders.<\/p>\n<p>In principle, only one execution issues on foot of a judgment. Execution orders may be issued concurrently in a number of different counties, although they may not be acted upon concurrently.\u00a0 Where the sheriff receives the whole or part of a debt by levy, he must countermand other orders.\u00a0 If there is a levy under an order other than a seizure, the second order should not be issued until the first one has been returned.<\/p>\n<p>A sheriff is bound to execute a proper and lawful order.\u00a0 He must act under and within the scope of the order.\u00a0 His duty is to execute as soon as reasonably practicable. The sheriff should execute an order within a reasonable time. The sheriff\\&#8217;s duty is to seize goods reasonably sufficient to meet the relevant debt.\u00a0 He may be liable for excessive execution, if he exceeds what is necessary, at the suit of the party affected.\u00a0 If he does not act in good faith, he may be liable for exemplary damages.<\/p>\n<p>If a judgment or order wrongfully induces the sheriff to seize particular goods by representing that they belong to the judgment debtor, the judgment creditor may be liable.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Breaking_and_Entering\"><\/span>Breaking and Entering<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The Enforcement of Court Orders Act provides that a sheriff may enter and break property without liability.\u00a0 This includes any lands, house, close or other premises.\u00a0 He may enter for the purpose of taking goods, animals or chattels.<\/p>\n<p>Before breaking into a dwelling house or other building, he must make reasonable efforts to enter peacefully and without violence.\u00a0 On breaking and entering a premises of someone other than the person against whom he enforces the execution order, he must have reasonable grounds for believing that some goods, animals or chattels of the latter person was on the premises or must, in fact, finds such goods, animals or chattels.<\/p>\n<p>No action lies against a sheriff for the taking of goods, animals or chattels found in a house occupied by the debtor and alleged to be the property of a spouse of a child or other person residing there. There is a right of indemnity against the debtor, for the persons concerned whose property has been seized.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Fieri_Facias\"><\/span>Fieri Facias<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Fieri facias is a common law execution writ against goods.\u00a0 It is directed to the sheriff or County Register commanding him to cause goods and chattels of the judgment debtor within his bailiwick (area) \u00a0to be recovered, seized and sold to be paid to the party by whom judgment is recovered.\u00a0 If there are no goods available, a return of no goods (nulla bona) may be made and the execution is complete.<\/p>\n<p>Unlike the case with other orders, it is not necessary to serve the order prior to issuing a writ for recovery of the goods.\u00a0 It may be taken out against each of a number of debtors who are jointly and severally liable judgment debtors.<\/p>\n<p>A sheriff may seize goods without physically taking them.\u00a0 An assertion of an intention to seize the goods is sufficient.\u00a0 Some positive act must be done to assert control.<\/p>\n<p>A sheriff may enter a \u201cwalking possession\u201d agreement, in which case the custody remains with the debtor, but the goods are in the sheriff\\&#8217;s legal possession.\u00a0 A request for such an agreement may be deemed sufficient to constitute a seizure, as it is an assertion of a right of control and possession under the court order.<\/p>\n<p>A sheriff is obliged to prepare a list of items seized within 24 hours.\u00a0 If practical before removal, he should cause a list to be given to the defendant or other person in apparent possession.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Goods_which_may_be_Seized\"><\/span>Goods which may be Seized<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Apart from a statutory authority, a sheriff may take goods which are the property of the judgment debtor only.\u00a0 If there is a doubt, the sheriff may take goods and interpleading.\u00a0 Interpleader is a procedure which requires third parties to claim ownership of goods in the possession or custody of the party who interpleads.<\/p>\n<p>A sheriff may execute against movable goods, removable fixtures, crops.\u00a0 He may not seize against goods which have already been seized by another, such as by a landlord by distraint.<\/p>\n<p>Until the Land and Conveyancing Law Reform Act, 2009, a sheriff could technically seize a \u201cchattel real\u201d including a lessee\u2019s interest under a lease.\u00a0 The interest had to be a legal interest. \u00a0\u00a0In practice, this was rarely done and the power has been removed.<\/p>\n<p>The Common Law Procedure Act 1853 \u00a0allows monies including cheques, bills of exchange, promissory notes, bonds, specialty debts and bank notes to be seized by a sheriff.\u00a0 Documents such as security for monies belonging to the person which is subject to the order may be seized.<\/p>\n<p>Jointly own assets may be seized, leaving the other co-owner to claim a share of the proceeds of the sale.\u00a0 The sheriff may seize goods in which debtor has an interest, which is capable of realisation by sale, notwithstanding that he is not the full or principal owner.<\/p>\n<p>Goods subject to a security interest in favour of third parties may be seized, with payment of the proceeds in accordance with the interest to the person entitled on sale.\u00a0 Goods over which the debtor holds a pledge which is irredeemable may be seized. A debtor will not generally have an interest in leased goods or in goods which he holds a possessory lien only.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Exempt_Goods\"><\/span>Exempt Goods<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>A range of goods are exempt from seizure by the sheriff. There are exceptions\/exemptions for necessary wearing apparel, bedding, tools and implements of the debtor\\&#8217;s trade not exceeding statutory set values.<\/p>\n<p>Goods and chattels in any lands held under a lease are not liable in execution unless the judgment creditor pays the landlord a sum of money not exceeding one year\\&#8217;s rent as is due for rent at the time taken.<\/p>\n<p>Under a\u00a0the walking possession agreement, the sheriff may assume control of the goos, while leaving them in the custody of the judgment debtor or another.\u00a0 If there is no such agreement, the goods which have been seized may be deemed to have been abandoned or relinquished from seizure.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Sale\"><\/span>Sale<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The sheriff may sell seized goods seized by auction, once two days has expired since execution, he is obliged not to delay unreasonably.\u00a0 Subject to this, the sheriff has a quite broad discretion in relation to the manner of holding and sale of goods.<\/p>\n<p>On sale, the sheriff may pay the proceeds to the judgment creditor.\u00a0 He may not hand over the goods in specie. The creditor acquires no title or interest in them.\u00a0 The judgment creditor has a right to the recovery of monies on sale.<\/p>\n<p>Where more than one order is lodged with the sheriff, they are to be executed in the order delivered.<\/p>\n<p>The Enforcement of Court Orders Act provides that a person who purchases goods, animals or chattels taken by the sheriff in execution at a sale, take s good title.\u00a0 This is so notwithstanding invalidity in or irregularity in the seizure of goods.<\/p>\n<p>Once a writ has been executed by the sheriff, it technically binds the goods of the judgment debtor.\u00a0 However, a third-party who purchases before the seizure, for good consideration without notice is not affected by reason of a provision in the Sale of Goods Act.<\/p>\n<p>Until the goods are sold by the sheriff, the judgment debtor may pass good title, subject to the above provisions.\u00a0 However, once the goods have been seized, the protection is not available as they do not remain unexecuted in the hands of the sheriff for the purpose of the Sale of Goods act.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Completion_of_Execution\"><\/span>Completion of Execution<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Upon completion of execution, the judgement creditor may retain proceeds even as against a liquidator or assignee.\u00a0 The execution must have been completed, before the commencement of the insolvency process. Completion of the process requires seizure and sale.<\/p>\n<p>Notice may be served on the sheriff that insolvency has commenced. In this case, the sheriff is obliged to deliver goods and monies seized in satisfaction of execution, but not delivered.\u00a0 He is entitled to the costs of execution as a first charge under the Companies Act. The rules in respect of bankruptcy are not as clearly set out, as in the Companies Act provision, but in broad terms, the same principles are likely to apply.<\/p>\n<p>Under the Bankruptcy Acts, when goods have been seized, sold, and monies paid to the sheriff or county register, the monies must be retained for 21 days.\u00a0 If within that period the sheriff or creditor or county register received notice for adjudication, they must be paid or surrendered to the Official Assignee.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Fees\"><\/span>Fees<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>There is a statutory schedule of fees payable on issue of a writ of Fieri facias. Charges are paid by the party seeking execution.\u00a0 However, the fees may be recovered by the sheriff from the party against whom execution is directed for repayment to the judgment creditor.\u00a0 The sheriff is not entitled to a fee for execution where no goods are returned.<\/p>\n<p>The fees payable include<\/p>\n<ul>\n<li>poundage fee on a seizure and sale of person\\&#8217;s property,<\/li>\n<li>fee for execution by a court messenger;<\/li>\n<li>travelling expenses;<\/li>\n<li>expenses of removal to a place for safekeeping;<\/li>\n<li>expenses for sustenance and maintenance of animals,<\/li>\n<li>expenses for storage and safekeeping pending sale; and<\/li>\n<li>expenses for sale of a property.<\/li>\n<\/ul>\n<p>Where payments are tended to release the goods, the sheriff is entitled to require payments of poundage fees and expenses, reasonably or necessarily incurred in removing and storing goods.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-21363\" data-postid=\"21363\" class=\"themify_builder_content themify_builder_content-21363 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>General The office of Sheriff is a very ancient office, dating back to the early middle ages.\u00a0 Formerly, they played a variety of roles in administration, the judicial sphere as well as in enforcing the law. One of their principal remaining roles is the enforcement of court orders, by the seizure and sale of goods [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[326],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/21363"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=21363"}],"version-history":[{"count":1,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/21363\/revisions"}],"predecessor-version":[{"id":21419,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/21363\/revisions\/21419"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=21363"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=21363"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=21363"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}