Hunt v Hooper and Another
| Jurisdiction | England & Wales |
| Judgment Date | 17 February 1844 |
| Date | 17 February 1844 |
| Court | Exchequer |
English Reports Citation: 152 E.R. 1365
EXCH. OF PLEAS.
S. C. 1 D. & L. 626; 13 L. J. Ex. 183; 8 Jur. 203. Referred to White v. Nutting, (1897) 2 Ir. R. 241.
hunt v. hooper and another. Exch. of Pleas. Feb. 17, 1844.-In an action against the sheriff for not levying, and for a false return of nulla bona, it appeared that a writ of fi. fa. was issued by the plaintiff against the goods of W., and was delivered to the sheriff on the 7th of June, with a direction to issue the warrant immediately, and the seizure took place the day after. Previously, (on the 1st of June), B. had delivered a, writ of fi. fa. against W. to the sheriff, with directions to execute it, at the same time suggesting that the next morning would be the beat time for the purpose, but he did not order the sheriff to restrain the execution until that time. Subsequently, (W. having offered him ,50 to stay the execution), B. verbally desired the sheriff', and on the 2nd of June gave him : written notice, not to execute the writ until further orders. The 50 not being paiJ, B. requested the sheriff' to proceed, and the bailiff accordingly catered, but : found the plaintiff's bailiff in possession. The sheriff then sold the goods, paid the money to B. and returned nulla bona to the plaintiff's writ. The jury found that B.'s writ was in the first instance intended to be executed : Held, that the notice by B. not to execute the writ until further order was equivalent to a withdrawal of his writ, which could not be uuusidered as in the hands of the sheriff to be executed, within the meaning of 29 Car. 2, c. 3, a. 10, until the order to proceed; and therefore that the plaintiff was entitled to a verdict for the amount levied. [8. C. 1 D. & L. 026; 13 L. J. Ex. 1H3 ; 8 Jur. 203. Referred to, While, v. Nuttlwj, [1897] 2 Ir. R. 241.] Case against the sheriff of Middlesex. The first count waa for a false return of nulla bona to a writ of fi. fa. ; and the second was for not levying under the writ, when there were goods upon which the defendants could and ought to have levied. 1366 HUNT V. HOOPER 12M.&W. 669. 665] The defendants pleaded, first, not guilty; secondly, to the first count, that they did riot lavy the monies indorsed on the writ in that count mentioned, or any part thereof; thirdly, to the second count, that there were not any goods or chattels of the said William Ward, (the execution defendant), out of which they the defendants, as such sheriff as aforesaid, could or might have levied the monies indorsed on the said writ in the second count mentioned, or any part thereof, niodo et forma. The replication took issue on the above pleas. At the trial before Rolfe, B., at the Middlesex sittings in last term, it appeared that the plaintiff, having obtained a judgment against a person of the name of Ward, issued thereon a writ of ti. fa., which was delivered to the defendants, as sheriff of Middlesex, on the 7th of June 1843, with directions tu issue a warrant immediately. On the following clay a seizure took place under that writ. Before the plaintiffs writ had issued, namely, on the 1st of June 1843, one Bird had delivered to the defendants a writ of ti. fa. against the goods of Ward, indorsed to levy 5181. 19s. 8d., besides, &c., with directions to execute it, and at the same time suggested, that the following morning would be the best time for that purpose; but no direction was given not to execute it until that time. In the meantime, however, Ward requested Bird to stay the execution, and promised him 50 if he would do so. Bird, in consequence, verbally desired the defendants to suspend the execution, and on the 2nd of June, 1843, gave them a written notice not to execute the writ until further order. On the 9th of Juiia, the 50 not having been paid by Ward, Bird required the defendants to proceed with: the execution, and the bailiff accordingly entered, but found another bailiff in possession, under the plaintiff's writ. The defendants, however, proceeded to sell under Bird's execution, and paid over the sum of 271. 5s. lid., the amount realized, to him, and returned nulla bona to the [666] plaintiffs writ. The learned Judge having left...
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