1812.

THURSTON against MILLS.

right, title, or lien to a subject, the king's subsequent execution shall not take it away. A judgment gives a right, title to, or lien upon the land and upon the assets; but it gives no right, title to, or lien upon the goods of the debtor while living. Upon the whole therefore the decision in Uppom v. Sumner is at least so doubtful as to require revision: and Rorke v. Dayrell, which is founded upon it, stands in the like doubt. Lord Kenyon was certainly mistaken in that case when he concluded that the property was altered, because bound by the delivery of the writ: for if so, it would be immaterial whether the sheriff had actually seized or not. But by the goods being bound by the delivery of the writ, can only be meant that the debtor himself cannot afterwards aliene. It is clear that the sheriff may if he please execute a second writ first, and the party to the 'second writ shall have the benefit of such execution, although "the sheriff may be answerable for his neglect (a); which shews to what extent the goods can be said to be bound by the delivery of the first writ. In truth, the delivery of the writ is but the inception of an execution, and cannot bind the king; nor does it bind even in the case of a prior title which is by relation only, as in the case of bankruptcy (b). It may be added that the decision in Rorke v. Dayrell was not generally approved of at the time, and has since been much shaken by The King v. Wells and Allnutt, which was a decision in favour of the crown, and being upon demurrer might have been carried farther.

(a) 1 Ld. Raym. 252. Smallcomb v. Cross, S. C. cited 4 East, 538. (b) 3 Lev. 191. Phillips v. Thompson, 1 Burr. 20. Cooper v. Chitty, 4 East, 538, 9. Payne v. Drewe. 2 Eq. Ca. Abr. 381. Lowthal v. Tonkins.

In reply. The question must be decided upon the statute, and not upon a consideration of what might have been the common law prerogative in ancient times. It is admitted that the statute is an abridgment of that prerogative, and the restraining words have already received a construction, that they operate as a benefit to the subject. But what benefit is given by permitting the subject to proceed to judgment, and thereby incur all the expense of such a proceeding, if after judgment obtained the crown may still supersede him? As to Rorke v. Dayrell, admitting what Lord Kenyon said upon the effect of the delivery of the writ to be erroneous, as it was said to be by Macdonald, C. B. in the conclusion of his judgment in Rex v. Wells and Allnutt, it does not follow because one argument fails that therefore the whole is erroneous. Lord Kenyon's judgment was formed upon a review of all the authorities, and not as has been said upon Lechmere v. Thoroughgood. The report of The Attorney-General v. Andrew does not warrant the assumption that there was a liberate; nothing of the kind is stated in it: and as to setting the authority of Gilbert's Exch. against that of Comyns' Dig., if that is to be done, it may be observed in favour of the latter that it was written after, and probably upon due consideration of the former, and it is given as the result of all the authorities. In Rex v. Wells and Allnutt the parties were not in affluent circumstances, and the amount in dispute was not large; which accounts for its not having been carried further.

.

1812.

THURSTON

against MILLS.

At the conclusion of the second argument, Lord EL- June 21, 1811. LENBOROUGH, C. J. said, that before the Court proceeded

to determine upon conflicting decisions, it would be

come

1812.

THURSTON against MILLS.

June 17, 1812.

come them to consider very deliberately of their judgment. Afterwards in Trinity term 1812 his Lordship expressed himself to the following effect: The Court were prepared to have given judgment in this case upon the principal point on which it has been argued, viz. as to the priority of the extent; but another difficulty has occurred to us, viz. whether this, which is an action for money had and received, can be maintained against the sheriff, where it appears that he has acted under the peremptory order of the Court of Exchequer. The doubt is, how far money had and received is maintainable against the sheriff, where he has converted the goods into money by sale of them under the writ of venditioni exponas, and afterwards paid over that money under the order of the Court. We wish therefore to have a further argument upon that point only; and when the Court have formed their judgment upon that point, they will be prepared to give the judgment which they have formed upon the other principal point, and were prepared to have delivered on this day.

Arguments for the plaintiff upon the last point.-This question may be divided into three heads: first, whether the action is well brought against the sheriff himself; secondly, whether money had and received is the proper form of action; thirdly, whether the sheriff in general is protected against every form of action, by reason of the order of the Court of Exchequer. Upon the first point there seems no difficulty; it is said in Laicock's case (a), that the sheriff shall answer for his under-sheriff civilly but not criminally; and in Saunderson v. Baker (b), he

(a) Latch. 187.

(b) 3 Wils 309.

was

was held so liable to trespass, and Woodgate v. Knatchbull (a) is to the same effect. Secondly, the proper form of action here is not trespass or case, but money had and received. A plaintiff when he has issued and delivered a fi. fa. to the sheriff, and goods are taken under it, has a double remedy, either by rule of Court upon the sheriff, or by action of debt. Therefore in Perkinson v. Gilford (b) it was resolved that debt lies against the executors of the sheriff for money levied under a fi. fa., the goods having been sold by the sheriff, although he had not returned the writ. So here the goods have been sold; and although the sale was made alio intuitu, still if the sheriff be not justified in such sale, it will not protect him: the plaintiff, who had a prior right under her execution, is not to be prejudiced by the mistake of the sheriff in having sold under the order of the Court of Exchequer. Before the sale, by the seizure alone, the sheriff became answerable to the plaintiff (the act of God excepted) for the value of the goods; Clerk v. Withers (c). He was compellable to return the writ, and he has returned that he sold the goods, and such return is at his peril (d) and if the plaintiff is entitled to the proceeds of the sale, debt will lie against him; and if debt will lie, so will money had and received. It may be said, however, that this was not a sale under the fi. fa., as in Perkinson v. Gilford, but under another writ, and that the question here is whether if a sheriff having two authorities to act, acts under that one which is an improper authority, his act can be referred to the autho

(a) 2 T. R. 148.

(b) Cro. Car. 539.

(c) Salk. 323., 3d Resolution. S. C. 2 Ld. Raym, 1075, 2d Resolution. 2 Saund. 343. Mildmay v. Smith.

(d) 1 Taunt. 120.

1812.

THURSTON

against

MILLS.

1812.

THURSTON against MILLS.

rity under which he ought to have acted. But admitting the act of the sheriff not to be referable to the plaintiff's execution, but to have been tortious as it regards the plaintiff, still according to Lord Mansfield in Feltham v. Terry (a), the party may waive the trespass and bring his action for the money which the goods sold for. That is the very question now under discussion, and seems decisive of it. Unless therefore it can be shewn that the sheriff, because he acted under the writ of the Court of Exchequer, is protected against every species of action, he is not against the present. It is thirdly submitted upon the authorities already cited, and from the constant practice that the sheriff is not so protected. [Lord Ellenborough, C.J. The case of Feltham v. Terry was the case of a void authority, but can we say that the authority under the order of the Court of Exchequer was void? In Allen v. Dundas (b) it was considered that the probate of a forged will was not void so long as it continued unrepealed. The oldest case upon this subject is, I believe, that of Sir R. Newdigate v. Davy (c), where Treby, C. J. held that an action would lie for money paid under a sentence of the court of high commissioners; for when money is paid in pursuance of a void authority, indeb. assumpsit lies for it. That case goes further than any other that I am aware of; and it was with a view of considering the point as it is presented in that case that we directed this argument.] The order of the Court of Exchequer cannot be considered as res judicata like the case of Marriott v. Hampton (d); it was ex parte, and the plaintiff was not heard against it: it would therefore be contrary to justice to hold her bound by it. Besides, the plaintiff has no

(a) Cowp. 419.

(c) Ld. Raym. 742. S. C. Bull. N. P. 133.

(b) 3 T. R. 125.

(d) 7 T. R. 269.

farther