Holmes against Newlands
| Jurisdiction | England & Wales |
| Judgment Date | 08 February 1844 |
| Date | 08 February 1844 |
| Court | Court of the Queen's Bench |
English Reports Citation: 114 E.R. 1288
IN THE QUEEN'S BENCH
[367] holmes against newlands. Friday, November 24th, 1843. Plaintiff sued out a fi. fa., which was returned nulla bona, and afterwards an alias fi. fa., under which goods were seized. An injunction issued to restrain the sheriff from selling, on the ground that the goods seized were not the property of the defendant; and a Master in Chancery so reported ; whereupon the sheriff withdrew from possession. Plaintiff then issued a ca. sa., on which defendant was taken, but discharged, on the ground that the alias fi. fa. had not been returned. Plaintiff then issued a scire facias on the judgment. Held that, although it must be taken, after the discharge of the ca. sa. for the non-return of the alias fi. fa., that something had been done under the alias fi. fa., yet the scire facias ought not to be set aside for irregularity as having issued before the return of the alias fi. fa., inasmuch as the defendant, if any thing had been taken under the alias fi. fa., might plead the fact, whether that writ had been returned or not, and whether or not the plaintiff had been satisfied. The defendant, in person, on a preceding day of this terra, obtained a rule calling on the plaintiff to shew cause why a scire facias, issued in this cause at the suit of the plaintiff, should not be set aside. The affidavit in support of the rule stated (a) that, in November 1839, a fi. fa. for 4451. 5s. issued on behalf of the plaintiff on a judgment against the defendant, under which the Sheriff of Surrey, on 28th November, 1839, took possession of all the goods and chattels in defendant's dwelling house. That, on the same day, an injunction was issued at the suit of defendant's wife to restrain the sheriff from seizing any of the goods in certain houses, including the house above mentioned. That the sheriff remained in possession a few days, and then withdrew by order of plaintiff, and returned nulla bona. That the injunction was afterwards dissolved, and another issued, restraining the sheriff' from selling any of the property under any writ of execution that had issued or should issue in the cause. That on 30th December, 1839, the sheriff resumed possession, under an alias fi. fa., and continued in possession of the property till 31st December 1840. That the last writ had not been returned. That defendant was arrested, [368] January 15tb, 1842, on a capias on the same demand, and was discharged by rule of this Court on 10th February 1842 ; and that the capias was returned and filed. That a scire facias on the same demand was issued on 4th November 1843. In answer, it was deposed that the Lord Chancellor, on dissolving the original injunction, ordered that the sheriff' should be restrained (as above mentioned), and that the execution should be withdrawn on the plaintiff in equity paying, or giving security for, the amount of the execution, which had not been done. That, after the sheriff' had resumed possession, the Lord Chancellor referred it to the Master to ascertain what portion of the property belonged to defendant's wife; and the Master reported, on 29th January 1841, that none of the property was liable to the debts or control of defendant; which report was afterwards confirmed; and the sheriff, in consequence, withdrew from possession on 31st December 1840, before the issuing of the ca. sa. That plaintiff had recovered nothing in satisfaction of the judgment; and that the ca. sa. had been issued on the supposition that the return of the alias fi. fa. was therefore unnecessary ; but that the ca. sa. had been set aside for want of such return. That plaintiff had, in April 1842, ruled the sheriff to return the alias fi. fa.; and that an attachment had issued against the sheriff for not returning it; but that () See the statement of facts on the motion in the Exchequer Chamber in the...
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