Form of writs.

Execution in general.

Concurrent writs.

Arrest Act.

As to issuing execution on an order of the House of Lords, see M'Mahon v. Leonard, 10 Ir. C. L. R. 444.

The form of the various writs of execution is provided for by the 105th G. O. of 1854, and may be seen in the schedule annexed to the orders. The 106th G. O., 1854, requires the place of abode and addition of the party against whom the writ is issued to be endorsed. As to the liability of the attorney, in case he endorses an incorrect place of abode or addition, by reason of which the sheriff arrests a wrong person, or seizes goods not belonging to the defendant, see the note to the G. O. in question.

As to the nature of execution in general, the party in whose favour the judgment has been given may either sue out a writ of fieri facias against the goods of the debtor, or (if the judgment has been recovered previous to the 15th July, 1850), he may sue out an eligit against any lands of the debtor not acquired by him as a purchaser for valuable consideration since that date; or (with the exceptions afterwards mentioned) he may have a capias ad satisfaciendum against the body. He may also register his judgment as a mortgage against the interest of the debtor in lands; or he may attach the interest of the debtor in stock shares, &c., standing in his own name, or in the name of a trustee for him (sect. 132, post); or in stock, shares, money, &c., in the Court of Chancery, or one of the Superior Courts (sect. 35, post), or in the Landed Estates Court (23 & 24 Vict., c. 82); or he may attach any debts due to the debtor (Common Law Procedure Act, 1856, ss. 63-69). As to enforcing the specific delivery of chattels, see the Common Law Procedure Act, 1856, s. 80; and as to the expenses, &c., of execution, see s. 130, post.

An execution creditor, after suing out one writ, may abandon it before it is executed, and sue out another. He may also issue any number of writs of execution of the same kind at the same time to different counties (104th Ir. C. L. R. 169 G. O., 1854); and although in Hayden v. Shearman,

(and see also, Kane v. Bridgman, 5 Ir. L. R. 222), it seems to have been considered that it would be irregular to issue a ca. sa. without obtaining a return to a fi. fa. previously issued; yet on the authorities it would appear that a plaintiff may issue such writs concurrently (Primrose v. Gibson, 2 D. & R. 193; Franklin v. Hodgkinson, 3 D. & L. 554; Tidd's Pr., 9th Ed., 995; Dunn v. Harding, 2 Dowl. 803). He cannot, however, act upon both writs concurrently; and if he do, the latter execution will be set aside (Fennell v. Dempsey, 1 Ir. Jur. O. S. 64; Kane v. Bridgman, 5 Ir. L. R. 222); and this is the case even though the plaintiff abandons the first execution-a fi. fa.-(Sugrue v. Hovenden, 7 Ir. C. L. R. 318).

It has been held, upon the construction of the Statute 35 Geo. 3, c. 30, custody under a 8. 31 (Ir.), that where the plaintiff has the defendant ca. sa. he may issue a fi. fa. without previously discharging the debtor, who thereupon becomes entitled to his discharge (Brien v. Brien, I Hud. & Br. 300, n.; Barton v. Seymour, 1 Hud. & Br. 304, n. ; but see Swete v. Austin, "I Hud. & Br. 308, n.).

The power of issuing a ca. sa. is restrained by the 11 & 12 Vict., c. 28, s. 1, under which (except in actions for malicious prosecution, deceit, libel, slander, criminal conversation, seduction, or breach of promise of marriage) no ca, sa, can be issued on a judgment, or order for the payment of a sum not exceeding (exclusive of costs) £10, or on any judgment or order for the recovery of costs only, when such costs due, or to be paid, shall not exceed £10. See the Act, post, in the Appendix.

Writs of execution have priority inter se according to the time they are Priority of delivered to the sheriff, even though they be delivered on the same day execution. Hutchinson v. Johnson, 1 T. R. 729). A creditor, however, who tells the sheriff not to execute, or who otherwise colludes with the debtor, will lose his priority (Kirwan v. Jennings, 3 Ir. L. R. 48; Wall v. Cahill, Cr. & Dix, Ab. Not. Cas. 370). Under the Statute of Frauds (7 Wm. 3, c. 12, 8. 12), the writ bound the defendant's goods, as against a purchaser, from the time it was delivered to the sheriff. Under the Mercantile Law Amendment Act (19 & 20 Vict., . 97, s. 1), the writ only binds them from the time of actual seizure. In order, however, that a purchaser may be able to claim the benefit of the Act, he must be a purchaser for valuable consideration, and must not have had, at the time of acquiring tile to the goods, notice that the writ in question, or any other writ by virtue of which the goods of the owner might be seized or attached, had been delivered to, and remained unexecuted in the hands of the sheriff. It would appear, however, Chattels to be doubtful whether the provisions of the Act referred to extend to chattels real. See In re The Dublin Exhibition Palace Co. (Limited), Ir. R. 2 Eq. 158, 163; O'Brien v. Murray, 17 Ir. C. L. R. 46.

When the sheriff has seized the defendant's goods, the defendant is discharged to the extent of the levy, even though the goods be afterwards rescued, 2 Wms. Saund. 343; Clerk v. Withers, 2 Ld. Raym., 1072, and see Spencer v. Thompson, 6 Ir. C. L. R. 537. When any lands had been extended on an elegit, the plaintiff could in general have no other writ of execution afterwards, except another writ of elegit (see Lancaster v. Fielder, 2 Ld. Raym. 1451), and qu. whether the principle extends to the case of a judgment mortgage. At common law, if the plaintiff had the defondant once taken in execution, he could not afterwards, even if the defendant died, have another execution (Ch. Ar. Pr., 12th Ed., p. 707); but now, under the 35 Geo. 3, c. 30, s. 31 (Ir.), even the voluntary discharge of a debtor under a ca. sa. does not deprive the creditor of his right to issue another execution (Burns v. O'Leary, 3 Ir. C. L. R. 1; Doolan v. Doolan, 13 Ir. C. L. R. 27). He cannot, however, issue another ca. sa. (Seymour v. Clarke, 13 Ir. C. L. R. 537).

As to the return of writs of execution, see the G. Os. 1854, 120-125, and the notes thereto.

As to the renewal of executions, see post, s. 141.

() As to how time is to be computed for the purposes of this section, see the case of O'Meara v. Foley, Ir. R. 4 C. L. 116, referred to ante, p. 145.

real.

Effect of

execution upon judg

ment.

(k) An application for immediate execution may be made either to the Immediate Judge who tries the cause, or to some other Judge, or to the Court. The execution. successful party should apply to the Judge at the trial for the order, while the facts are fresh in his recollection. If the facts on which the order is sought did not appear in evidence at the trial, or there has been no trial, an affidavit is necessary (White v. Byrne, Glas. 337). An exparte application may be made (Jenkins v. Tongue, 29 L. J. Ex. 147). If there be a demurrer pending to a count of the plaint, the Judge may make the order on an undertaking to enter a nolle prosequi ( Allsop v. Smith, 7 C. & P. 708), and so also, even though a bill of exceptions has been tendered, the order may be made if the Judge considers the point frivolous (Dresser v. Clarke, 1 C. & K. 752). Where a certificate is given for immediate execution, notice of taxation may be be given on the day of trial for the following day, and on that day judgment may be signed and execution issued (Alexander v. Williams, 4 D. & L. 132).

Respiting

execution,

Setting aside execution.

Where judgment not revived

Death of parties.

Terms.

Restitution

Execution

Face to any county

15 & 16 Vict. c. 76, s. 121.

Execution to

amount really due.

6 Anne, c. 7. ss. 1, 2.

(Ir).

The unsuccessful party may, on the other hand, apply to the Judge to stay execution beyond the period provided by the Statute. Such an order will not be made except under special circumstances. Where the stay of execution is "until" a certain day, execution may be issued upon that day (Rogers v. Davis, 8 Ir. L. R. 399).

(1) Writs of execution, and the judgments on which they are founded, will be set aside on several grounds which it would be impossible to enumerate here. As to setting aside a judgment and execution, regularly entered up and issued, see ante, p. 102, note (x).

Executions will also be set aside if irregularly issued or improperly executed. Thus, an execution issued after the death of a plaintiff will be set aside (Borridge v. Freeman, Bl. D. & O. 213). So, also, if issued when the judgment should have been revived. See post, s. 148, et. seq.

But the plaintiff's death after execution does not invalidate the writ (Cleeve v. Veer, Cro. Car. 459). Where judgment has been recovered against the defendant by a wrong name, an execution issued against him by the same name is regular (Furlong v. Handcock, Hay. & Jon. 244). The Court has, on motion, set aside a fraudulent judgment and execution at the instance of creditors prejudiced thereby (Byrne v. Falvey, Hay. & Jon. 132). But see Ch. Pr. 12th ed., p. 644. When setting aside executions, the Court will frequently impose terms on the defendant, not to bring an action, and if he do not consent will refuse him his costs (Cash v. Wells, I B. & Ad. 375); and in Telby v. Newman, 12 Ir. L. R. 71, and Fennell v. Dempsey, Ir. Jur. O. S. 64, it seems to have been considered that the Court had the power of imposing such terms in every case, and see Bartlett v. Stinton, L. R. 1 C. P. 483.

(m) As to the manner of restitution, see Chitty's Pr. 12th ed., p. 643.

128. Any writ of execution, except a Writ of Habere facias possessionem, or other writ of possession, may be directed, in the first instance, to the Sheriff of any county, or county of a city, or other shrievalty, as the party suing out the same may think fit, without reference to the county in which the venue is laid, and without any suggestion of the issuing of a prior writ into such county.

129. When any execution is demanded, the party demandissue for the ing the same shall lodge with the officer required to issue such writ a certificate signed by the party or his attorney (n) containing such sum as the party demands to be in good conscience due to him after all just and equitable deductions (0), which certificate shall be filed in the office, and the sum mentioned therein entered in the book wherein executions are entered, and also in the body of the said execution that shall issue, as the sum to be levied on foot of the sum adjudged by the judgment or order of the Court; and if the party at whose suit such execution issues shall appear wilfully, fraudulently, and maliciously to have overcharged the party against whom such execution issues, in

such case he shall forfeit to the party grieved treble damages (p).

(n) This is substantially a re-enactment of 6 Anne, c. 7, ss. 1 & 2 (Ir.). In Certificate of Cassan v. Southwell, 2 Law Rec. N. S. 181, a motion to have a judgment amount due. and execution set aside as irregular, on the ground that the certificate was not signed by the party, or by his attorney, with their own hand, was refused; and in Irwin v. Staunton, 4 Ir. L. R. 270, the Court refused to discharge a defendant arrested under a ca. sa., although no certificate was lodged with the sheriff, pursuant to 6 Anne, c. 7; but the plaintiff was put under terms to enter an appearance to an action to be brought on the Statute by the defendant.

execution.

(0) Where a creditor, having seized the goods of a principal debtor in Over execution, afterwards caused a return of nulla bona to be made, and forebore marking to sell the goods, and then issued a ca. sa. against the person of the surety for the full amount, it was held that the value of the goods seized was an equitable deduction within the meaning of the Act, and that an action lay (Spencer v. Thompson, 6 Ir. C L. R. 537).

certificate.

(p) The action given by the Statute is for overcharging the certificate; Overan action lies at common law for maliciously overmarking the execution charging (Spencer v. Thompson, 6 Ir. C. L. R. 537); Gilding v. Eyre, 10 C. B. N. S. 592). In such an action, or in an action under the Statute, the plaintiff must prove malicé. The mere fact of a judgment being overmarked does not per se warrant a jury in finding malice. The proper question in such a case is Did the defendant draw the conclusion which he did as to the amount due to him fraudulently? (Mills v. Nerney, Cooke & Alc. 81). See also Carmichael v. Waterford & Limerick Railway Co., 13 Ir. L. R. 313.

As a general rule, so long as the judgment on which the execution issued stands, the debtor can bring no action, as he is estopped from alleging that any other sum is due than what appears by the judgment ( Kidd v. Cusack, Sm. & Bat. 63; Huffer v. Allen, L. R. 2. Ex. 15; and see M'Kenna v. Sexton, 8 Ir. Jur. N. S. 216). It might be otherwise in the case of a judgment marked in a penal sum to secure a smaller one. See Mills v. Nerney, Cook & Alc. 81.

In Crawford v. Cinnamon, Ir. R. 1 C. L. 325, the plaintiff in the first action sued his attorney for overmarking execution, by reason of which he was sued, and it was held that the bankruptcy of the plaintiff was a good defence.

15 & 16

130. In every case of execution, the party entitled to Expenses of execution may levy the poundage fees and expenses of vict the execution by law payable over and above the sum c. 76, s. 123. recovered (q).

(7) At common law the sheriff was entitled to no fees, and he is now Sheriff's fees. entitled only to the fees allowed him by Statute. The first Statute allowing the sheriff fees is the 10 Car. 1, Sess. 3, c. 19 (Ir.), which provides that he shall not take, upon an execution against the body, lands or goods of a defendant more than a shilling for every pound, when the sum does not exceed £100, and sixpence for every pound for the overplus.

On a ca. sa.

Expenses of execution.

Interpleader

By the 6 Anne, c. 7, s. 3, the sheriff was forbidden to take poundage for any greater sum than the amount appearing to be due by the certificate of the execution creditor or his attorney; and in cases where the execution was against the goods, for any greater sum than the amount actually levied and paid over.

By the 43 Geo. 3, c. 46, s. 5, the plaintiff was allowed, in the case of an execution against the goods, to levy the poundage and expenses, over and above the sum recovered; and now, by the present section of the Act, the party entitled to execution is in every case allowed to levy the poundage and expenses of execution.

The plaintiff is entitled to poundage fees and expenses, even where he is not entitled to costs (Armitage v. Jessop, L. R. 2, C. P. 12).

The sheriff is entitled to his poundage fees on every writ of ca. sa, executed by him, even though the defendant be already in custody on another execution (Taylor v. Ward, Tidd's Pr. 9th ed., p. 1040). He may sue the plaintiff for the amount (Bagot v. Malone, 5 Ir. L. R. 454). Previous to the above section, it was held that, in case of a ca. sa., the defendant could not be detained for the amount of the poundage, nor could the sheriff sue him for the amount (Chadwick v. Atkinson, 2 Ir. C. L. R. 37). So that, practically, the plaintiff had to bear the expense; but now, by the above section, the plaintiff is permitted to levy the poundage and expenses in every species of execution.

In cases where a fi. fa. is issued, the sheriff is not entitled to poundage where there has been no actual levy, as when the money is paid without a levy (Nash v. Dickenson, L. R. 2 C. P. 252). The expenses of the execution may, however, be enforced (Bayley v. Potts, 8 A. & E. 272). The sheriff, however, is entitled to poundage, although the judgment and execution be afterwards set aside for irregularity (Bullen v. Ansley, 6 Esp. 111). He is also entitled to poundage on the amount paid over to the landlord, under the Statute of Anne (Davies v. Edmonds, 12 M. & W. 31).

As to the expenses of execution, as distinguished from fees, the shriff is not, as against the defendant, directly entitled to any, unless incurredat his instance, or with his sanction. But when the defendant has sanctioned expenses incurred in the preservation of the goods, or in bringing them to a more advantageous sale, or otherwise, the sheriff becomes entitled to them as against the defendant (Yates v. Meehan, 11 Ir. C. L. R. Ap. 1; Stevens v. Rothwell, 6 Moore 338; King v. Fitzgerald, 1 Jones, 35). In the latter case it was held that the auctioneer's fees were not chargeable as against the defendant, it being the sheriff's duty to sell, and the auctioneer not having been employed at the defendant's request. So, also, as against the plaintiff, in the execution, the sheriff is not entitled to charge any expenses beyond his poundage, unless incurred with his sanction (Moran v. Tyrrell, 5 Ir. Jur. O. S. 148). If such expenses have been incurred, the plaintiff may levy the expenses so incurred, but he should take care to levy only such reasonable sum as would be allowed on taxation (Benwell v. Oakley, 2 Taunt. 174). The plaintiff is not entitled to levy as expenses of execution the expenses of a previous abortive execution (Salisbury v. Ray, 8 C. B. N. S. 193).

In cases of interpleader, when a summoning order has been obtained, the jurisdiction of the Courts thereupon attaches, and the costs of keeping and preserving the goods seized, incurred after but not before the making of the order, are within the jurisdiction of the Court (Yates v. Meehan, 11 Ir. C.