to set aside part of the actual finding; and, secondly, that the defendant in whose favour the verdict had been found was entitled to be heard, before the Court could disturb the verdict. He cited Doe d. Dudgeon v. Martin (a), in which it was held that the Court could not on motion grant a new trial as to one defendant, where verdict has been found against him, and for the other defendants.

The COURT directed the rules to be amended, by calling on the defendant in whose favour a verdict had been found, as well as the plaintiff, to shew cause why the verdict should not be set aside.

(a) Ante, vol. 2, p. 678; See S. C. 13 M. & W. 811.

1845.

BELCHER

v.

MAGNAY and Others.

ECCLES and Another v. HARPUR.

THIS
was a rule calling on the defendant to shew cause
why the Master should not review his taxation. The action
was brought on a policy of insurance, and a verdict found
for the plaintiff. The defendant obtained a rule nisi to set
aside the verdict, and for a new trial, which rule was after-
wards made absolute, "the costs to abide the event," (no
mention being made as to the costs of the rule). On the
second trial a verdict was found for the defendant, and the
Master allowed him the costs of the rule.

Martin shewed cause. The party who eventually succeeds upon a new trial is entitled to the costs of the rule for that purpose. In Pugh v. Kerr (a), Alderson, B., says, "the costs of all interlocutory proceedings, (which are not otherwise provided for), are costs in the cause, and this is certified to us by the Masters of all the Courts, as being the

(a) 8 Dowl. 219; S. C. 6 M. & W. 17.

1845.

ECCLES and Another

v.

HARPUR.

understood practice." Austen v. Gibbs (a) will perhaps be cited on the other side.

Crompton, contrà, was not called upon.

POLLOCK, C. B.-The word "costs" means costs of the cause. Where a rule is made absolute for a new trial, and nothing is said about the costs of the rule, neither party is entitled to them.

Rule absolute.

(a) 8 T. R. 619.

A sheriff who

takes in exe

cution a lease for years has no right to remain on the premises for

the purpose of executing an assignment, and putting the purchaser in possession.

If he should do so, he is liable in trespass at the

suit of the execution debtor, if in possession; although the premises have been sold and transferred.

Where a lease is taken in execution by the sheriff,

the interest in

it remains in

the execution

debtor until

PLAYFAIR v. MUSGROVE and Another.

TRESPASS for breaking and entering the plaintiff's dwelling-house, and continuing therein for a long space of time, to wit, for three months; and seizing his goods.

The defendants pleaded, first, not guilty; secondly, that the dwelling-house in the declaration mentioned, was not the dwelling-house of the plaintiff; thirdly, a justification as sheriff, under a writ of fieri facias issued on a judgment against the plaintiff, by virtue of which writ the defendants, as sheriff, at the said time, when, &c., seized and took a certain lease or instrument of demise in writing, under and by virtue of which the plaintiff held and was possessed of the said dwelling-house, as in the declaration mentioned, for a certain term, to wit, the term of ten years; that afterwards and before the return of the writ, the defendants sold the same and the plaintiff's said interest in the said term, and continued in possession of the said dwelling-house for the further execution of the said writ, and committed the said alleged trespasses under and by virtue of the said writ, &c.

actual assignment to the purchaser.

1845.

PLAYFAIR

v.

MUSGROVE

The plaintiff joined issue on the two first pleas, and to the third, replied by way of new assignment, that after the defendants had seized and taken in execution, and sold the said lease as in the said plea mentioned, and after the ex- and Another. piration of a reasonable time for selling the same, the defendants did not depart from the said dwelling-house; but on the contrary thereof, the defendants, on the several days and times in the declaration mentioned, the same being after the defendants had seized and taken in execution and sold as aforesaid, and after the expiration of such reasonable time as aforesaid, broke and entered the said dwellinghouse, and stayed therein for a long space of time, to wit, three months.

To this new assignment the defendants pleaded, first, not guilty; secondly, that at the time of committing the said trespasses, the said dwelling-house was not the dwellinghouse of the plaintiff, modo et formâ.

At the trial before Pollock, C. B., it appeared that the plaintiff's interest in the lease had been seized by the sheriff under a fieri facias, and sold by auction; but no assignment had been made by him to the purchaser.

The jury found the three first issues for the plaintiff, with 107. damages, and for the defendants on the second plea to the new assignment, leave being reserved to the plaintiff to move to enter a verdict for him on that issue.

A rule nisi having been obtained accordingly,

Jervis and Kennedy shewed cause. The defendants, as sheriff, were justified in remaining on the premises for the purpose of perfecting the sale by delivering possession to the purchaser. In Taylor v. Cole (a), Buller, J., says, “It seems to me that where there is a tenant in possession, and the execution is against the landlord, whose term is to be sold, the tenant cannot be turned out of possession: but it

(a) 3 T. R. 298.

1845.

PLAYFAIR

v.

MUSGROVE

is very different from the present case, where the debtor himself is in possession. In such case I incline to think that the sheriff may turn him out of possession." [Pollock, and Another. C. B.-With respect to goods, after seizure by the sheriff and before actual sale, the goods are in custodià legis; suppose at that time the goods were taken by a third party, could not the execution debtor maintain an action?] Bare possession would be sufficient as against a wrong doer, but a person having title might justify. This term of years is a chattel interest, and, by analogy to the case of goods, the moment the sheriff has sold it, the title of the execution debtor is divested. If the word "sold" means a perfect assignment, it is clear that the plaintiff has no right of action; but if it means only a sale not perfected by assignment, then the property is in the sheriff. [Alderson, B.—A sale by a sheriff is not complete until assignment.] For some purposes the property in goods seized remains in the debtor until actual sale; Giles v. Grover (a). Suppose the question had arisen between landlord and tenant, the mere fact of the latter being in possession after the expiration of his term would not have enabled him to maintain trespass against his landlord who entered; Taunton v. Costar (b): unless, indeed, he expelled the tenant by force; Newton v. Harland (c). A party having the legal title after entry maintain trespass against a person wrongfully in possession at the time of entry, and continuing in such possession afterwards; Butcher v. Butcher (d). If the sheriff sells a term of years and then goes out of office, he may nevertheless execute an assignment; Doe d. Stevens v. Donston (e). The term must exist in some person, it cannot be in the execution debtor, because it is taken out of him by the law; it cannot be in the purchaser, because

(a) 9 Bing. 128; See S. C.

2 M. & Scott, 197.

(b) 7 T. R. 431.

(c) 1 M. & G. 644; See S. C.

1 Scott. N. R. 474.

may

(d) 7 B. & C. 399; See S. C. 1 M. & R. 220.

(e) 1 B. & A. 230.

1845.

PLAYFAIR

v.

MUSGROVE

there is no assignment to him; it follows then that it must be in the sheriff. [Alderson, B.-If the property is in the sheriff, it would require an assignment to get it back again if the execution were set aside.] The sheriff's title is and Another. paramount to that of the debtor, and can only be divested by assignment, or supersedeas of the execution. A debtor whose goods are seized cannot maintain trespass against the sheriff for anything done by him to the goods, between the time of seizure and sale; the same rule of law will apply to a term of years. [Alderson, B.-If the property passes by the assignment from the execution debtor to the vendee, it cannot be in the sheriff. Is the sheriff anything more than an instrument for transferring the property from the debtor to the vendee? if so, the house remains the house of the debtor, until it becomes the property of the vendee.] The sheriff has a twofold duty to perform; first, to remain in the house for the purpose of selling the term to the best bidder; and secondly, to transfer it to the purchaser. It is true that any sort of possession is sufficient to support trespass as against a wrong doer; but in this case the sheriff cannot be considered a wrong doer, for he is obliged to be in the house for the purpose of executing his duty under the writ; and the case of Doe d. Stevens v. Donston, shews that he is not obliged to assign at the time of the sale. [Platt, B.-The case of The King v. Deane (a), is against you; there it was held that a sheriff who sells a lease or term of years under a fi. fa., cannot put the person out of possession and the vendee in; but that the latter must bring his ejectment.] That must be understood of a forcible expulsion; for in Taylor v. Cole (b), it was determined that the sheriff may justify expelling the defendant peaceably. They also referred to Com. Dig. tit., "Execution," (C. 6); Hey v. Moorhouse (c); Harrison v. Dixon (d).

(a) 2 Show. 88.

(b) 3 T. R. 298.

(c) 6 Bing. N. C. 52; See S. C.

s Scott, 156.

(d) Ante, vol. 1, p. 454; See S. C. 12 M. & W. 142.