1845.

PLAYFAIR

v.

MUSGROVE and Another.

Humfrey (with whom was Peacock), to support the rule, referred to Browne v. Dawson (a), and was stopped by the Court.

POLLOCK, C. B.-The rule must be absolute. The question is, whether the plaintiff or defendants be entitled to a verdict on the second plea to the new assignment, which is pleaded to the third original plea? (His Lordship then stated the pleadings.) It seems to me to make no difference whether the word "sold" is to be understood as an actual assignment by the sheriff to the purchaser, or only as an inchoate act, done by putting up the premises for sale, the transfer not being perfected; because in the case of an actual transfer, the sheriff having performed all that is required of him, is functus officio, and has no right to stay on the premises. If, on the other hand, the word sale is to be understood not as an actual assignment, undoubtedly the house was still the plaintiff's, as the property in it had not passed out of him. I cannot accede to the suggestion that the term vested in the sheriff. It is clear that the term remained in the original lessee, until an actual assignment by the sheriff. I therefore think the rule must be absolute.

ALDERSON, B.-I am of the same opinion. The plaintiff complains against the sheriff that he remained in the house a longer time than was reasonable for the purpose of executing the writ, and after he sold the property. The sheriff says, "I did not remain an unreasonable time," (which is found against him) "and though I did remain, it was not the plaintiff's house." The question then is, whether the house is the plaintiff's house as against the sheriff, who clearly has no right to be there after he has disposed of the premises? The sheriff has a right to remain for the purpose of executing the writ, but not after the

(a) 12 A. & E. 624; See S. C. 4 P. & D. 355.

property is sold. If there were an assignment to the purchaser, the sheriff does not claim to act under him, and, therefore, had no right to remain on the premises; if there were no assignment, the property remains in the plaintiff.

ROLFE, B.-I am of the same opinion. The language of the plea is, that "afterwards and before the return of the writ, he sold the premises with the plaintiff's interest in the term." The first question is, what is the meaning of the word "sold?" In my opinion it means "bargained and sold." I do not understand how in law there can be a sale of a chattel real, otherwise than by an instrument under seal; anything but that is only a contract of sale. The word "sold" must, therefore, mean "sold" in the only sense in which the law would adopt it, namely, a complete bargain and sale. The plea does not, indeed, say to whom, and might perhaps, for that reason, be subject to special demurrer. The defendants, therefore, having sold and assigned, (for that is the meaning of the plea) the plaintiff says, that after the defendants seized and sold, they remained on the premises an unreasonable time. The answer to that is, that the dwelling-house was not the dwelling-house of the plaintiff. I think that position is not made out; it was the dwelling-house of the plaintiff when the sheriff began to execute the writ. I come to the conclusion which I have formed, by considering how the case would have stood if no goods had been in the dwelling-house, and the sheriff had had nothing to do but to sell the lease, would that authorize him to enter the house? Certainly not; for the dictum of Buller, J. (a), which has been cited, is not stated with much confidence, nor was it necessary the decision of the case. It is said that it has never been overruled, but has it ever been acted on? It would be strange if under a fieri facias a sheriff should be able to execute an habere facias possessionem. The proper course

(a) In Taylor v. Cole, 3 T. R. 298.

for

1845.

PLAYFAIR

v.

MUSGROVE

and Another.

1845.

PLAYFAIR

v.

MUSGROVE and Another.

is to sell, that is, to give the purchaser a right of possession, which, if he be opposed, he must enforce by ejectment.

PLATT, B.-This is an action for breaking and entering
the plaintiff's dwelling-house. The defendants justify
under a writ of fieri facias, and to that plea there is a new
assignment, putting entirely out of the question all the facts
stated in the plea. That new assignment in effect is, that
after the execution of the writ, and after the expiration of
a reasonable time, the sheriff again entered the plaintiff's
dwelling-house. To that the defendants plead that the
plaintiff was not possessed of the dwelling-house. The
question therefore is, whether under these circumstances
the plaintiff was possessed of this dwelling-house as against
the sheriff. Unless the sheriff can say "because I have
sold this lease, and have not assigned it, I have a right to
go upon the premises," he is a trespasser as much as any
third person who might have entered. Could any third
Could
and say that the

person have entered on the premises,
plaintiff was not in possession of the house in question,
because the sheriff had been there before, and sold the
lease ? If a stranger could not, why could the sheriff?
Perhaps he might have a right to enter for the purpose of
taking the lease, or in furtherance of the sale, provided he
does not stay there; but the fact of having sold the pre-
mises, does not entitle him to remain; if it did, he might
always keep possession, by refusing to assign. Though the
property has been sold, it seems to me that as against the
sheriff, the plaintiff must be considered the owner. It has
been urged in argument, that the sheriff has a right to
put the vendee in possession, and on referring to Tidd's
Practice (a), I find it so laid down, and the authority which
is cited for that position is Taylor v. Cole (b). But that
case is certainly no authority. Nobody can doubt that if

(a) See Tidd's Pract. vol. 2, p. 1004, 9th ed.

(b) 3 T. R. 298.

the execution debtor consents to go out, and the sheriff puts the vendee in possession, leave and license would be

an answer.

1845.

PLAYFAIR

v.

Rule absolute.

MUSGROVE and Another.

In re COBBETT.

Court directs
a writ of habeas

corpus ad
subjiciendum

notice to a party in

WILLIAM COBBETT had been originally committed Where the to prison for a contempt in not putting in an answer to a bill filed on the equity side of this Court by one Oldfield. When the equity jurisdiction of this Court was abolished, to issue, with Cobbett was detained in custody by order of the Court of Chancery, to which Court the cause was transferred. terested in opposing the In Easter Term last, this Court, on the application of prisoner's discharge, and Cobbett, granted a rule for the issuing of a writ of habeas the latter is corpus ad subjiciendum, and required that notice thereof remanded to should be given to Oldfield. On the return of the writ, custody, the Oldfield appeared and opposed Cobbett's discharge, when the Court remanded him to his former custody, and ordered him to pay the costs.

Pashley had obtained a rule nisi to rescind so much of that rule as related to the payment of costs; against which

Martin shewed cause. The Court has the same power to award costs in this case as in any other rule. [Rolfe, B.Oldfield was not bound to appear: he was only placed in a position to do so if he thought proper.] It was necessary for the purposes of justice that he should appear. [Rolfe, B.The Court might have decided on the inspection of the warrant.]

Pashley, in support of the rule, submitted that in a case like the present, the Court of Queen's Bench never allowed

costs.

his former

Court do not

allow the costs

of the oppo

sition.

1845.

In re COBBETT.

ALDERSON, B.-We are disposed to adhere to the practice of the Court of Queen's Bench, and have sent to inquire what it is; the officer reports that costs are never given in such cases. The rule must be absolute.

PER CURIAM.

Rule absolute.

A plaintiff being under a peremptory undertaking to try at a particular sitting, entered

his cause accordingly; but in consequence of the press of business it was made a remanet : Held, that

there was no

default on the

part of the

plaintiff. And

the defendant having ob

tained a rule

absolute for

judgment as in case of a nonsuit, the Court set it aside.

LUMLEY v. Dubourg.

IN this case a rule nisi for judgment as in case of a nonsuit had been discharged, upon the plaintiff's giving a peremptory undertaking to proceed to trial at the London sittings after Easter Term. The plaintiff accordingly gave notice of trial, entered the cause, and carried in the record in due time. The cause was made a special jury, but it was expressly sworn that it was not for the purpose of delay. Two days only were appointed for the sittings, and from press of business, the cause could not be tried, and was marked in the Marshal's book as a remanet to the sittings after the present Trinity Term. The defendant, on the second day of this Term, obtained a rule absolute for judgment as in case of a nonsuit, upon the usual affidavit

that the plaintiff had made default, and had not proceeded to trial pursuant to his peremptory undertaking. Judgment having been signed,

Barstow, on the 29th of May, obtained a rule calling on the defendant to shew cause why that rule should not be discharged, and the peremptory undertaking enlarged to the sittings after the present Term. On shewing cause, affidavits were produced on behalf of the defendant, which stated that notice of trial was given on the 2nd of May, but that the cause was not entered for trial until the 8th of May, which was the last day for entering causes for trial at