CHAP. XL. of the statute was extended by the late act for the further amendment of the law, &c., by which it is enacted, that "in all writs of "scire facias, the plaintiff obtaining judgment, on an award of "execution, shall recover his costs of suit, upon a judgment by de"fault, as well as upon a judgment after plea pleaded, or demurrer "joined." By whom, and how costs are taxed. Judges em powered to make regulations, for taxing costs by the officers of each court indiscriminately. Costs are taxed by the master, in the King's Bench and Exchequer, or prothonotaries in the Common Pleas, upon a bill made out by the attorney for the prevailing party; or, more frequently, without a bill, upon a view of the proceedings. But, by the statute 3 & 4 W. IV. c. 42.a, reciting that it would tend to the better dispatch of business, and would be more convenient, and better assimilate the practice, and promote uniformity in the allowance of costs, if the officers on the plea side of the courts of King's Bench and Exchequer, and the officers of the court of Common Pleas at Westminster, who now perform the duties of taxing costs, were to be empowered to tax costs which have arisen, or may arise, in each of the said courts indiscriminately; it is enacted, that "it shall be lawful for the judges of the said courts, or any eight or more of them, of whom the chief of each of the said "courts shall be three, by any rule or order to be from time to "time made, in term or vacation, to make such regulations for the "taxation of costs, by any of the said officers of the said courts indiscriminately, as to them may seem expedient, although such "costs may not have arisen in respect of business done in the "court to which such officer belongs, and to appoint some con"venient place in which the business of taxation shall be transacted "for all the said courts, and to alter the same, when and as it may seem to them expedient." 66 66 66 CHAP. XLI. Of the TESTE and RETURN of WRITS of EXECU- 66 66 AT common law, writs of execution must have been tested in term time, on a day after the judgment was, or might be supposed to have been given: But, by the statute 1 W. IV. c. 7, every execution, issued by virtue of that act, shall and may bear "teste on the day of issuing thereof; and such execution shall be as valid and effectual, as if the same had been issued according "to the course of the common law." c And, by a subsequent statuted, "all writs of execution may be tested on the day on which "the same are issued, and be made returnable immediately after "the execution thereof. A writ of execution, however, cannot be tested of a term previous to the judgment, although it be issued under the above statutes. Teste and return cution. of writs of exe By stat. 1 W. IV. c. 7. The liability of the sheriff, and his officers, to answer for the Liability of she value of goods taken in execution, or their proceeds, principally goods taken in riff, &c. for depends on whether, at the time of taking them, they were the execution. goods of the defendant, or a third person; and, if the defendant has become bankrupt, whether he had committed an act of bankruptcy before the sheriff's entry under the execution: For if a writ of execution be delivered to the sheriff against A., who becomes bankrupt before it is executed, the execution is superseded; con CHAP. XLI. sequently, the property of the goods is not absolutely bound, as in other cases, by the delivery of the writ to the sheriff, but by its actual execution. And where goods are seized under a fieri facias, the same day that the, defendant commits an act of bankruptcy, evidence should be given to prove at what time of the day the goods were seized, and the act of bankruptcy was committed c. Sheriff liable in trover, for goods taken in execu tion after an act of bankruptcy, though he has no notice of it. A sheriff, who takes in execution the goods of a trader, after he has committed an act of bankruptcy, is liable in trover to his assignees, for the value of the goods, although he has no notice of the act of bankruptcy, and a commission has not been sued out thereon, at the time of the execution. And if a sheriff take in execution the goods of a defendant, who afterwards becomes bankrupt, and sell at one time, after the bankruptcy, sufficient goods to satisfy both that execution, and also another which was delivered to him after an act of bankruptcy, the assignees may recover against him in trover, for such of the goods as were sold after he had raised money enough to satisfy the first execution. But trespass will not lie by the assignees of a bankrupt, against a sheriff, for taking the bankrupt's goods in execution, after an act of bankruptcy, and before the issuing of the commission, notwithstanding he sells them after the issuing of the commission, and after a provisional assignment, and notice from the provisional assignee not to sell. In trover by the late, or present assignees of a bankrupt, for goods taken by the sheriff under an Aliter, in trespass. sheriff. a Tidd Prac. 9 Ed. 1000. b Smallcomb v. Cross, 1 Ld. Raym. 252. per Holt, Ch. J.; and see 2 Eq. Cas. Ab. 381. Coppingdale v. Bridgen, 2 Ken. 542. C 1 Sadler v. Leigh, 4 Campb. 197. 2 131; and see id. 135. (a.) Young v. Marshall, 8 Bing. 43. 1 Moore & S. 110. S. C. Crosfield v. Stanley, 4 Barn. & Ad. 87: but see Timbrell v. Mills, 1 Blac. Rep. 205. 2 Cromp. & J. 34, 5. S. C. cited. Balme v. Hutton, 2 Cromp. & J. 19. 2 Tyr. Rep. 17. S. C. semb. contra. The judgment however, of the court of Exchequer, in the latter case, was reversed, on a writ of error, by a majority of the judges in the Exchequer Chamber. 3 Moore & S. 1. 9 Bing. 471. 1 Cromp. & M. 262. 2 Tyr. Rep. 620. S. C. 4 Barn. & Ad. 90. (a.) Stead v. Gascoigne, 8 Taunt. 527. f Smith v. Milles, 1 Durnf. & E. 475. and see Hitchin v. Campbell, 2 Blac. Rep. 829. Ward v. Clarke, 1 Moody & M. 497. per Ld. Tenterden, Ch. J. of execution, it appeared that the goods were taken about the time o the year at which the sheriffs were changed, and that a witness, after the present cause was set down for trial, saw a form of return indorsed on the writ, which had never been returned: This form `of return was signed by the defendant as sheriff; and it was ruled at nisi prius, to be sufficient evidence that he was the sheriff who executed the writ; and that if the writ, when produced at the trial, had his name erased, and the name of the previous sheriff substituted, it would be a question for the jury, whether the substitution was made to correct a mistake, or to defeat the plaintiff a. 66 same, CHAP. XLI. Executions levied, without notice, &c., more than two calen dar months be Creditor having security for his debt, not to re ceive more than other creditors. It should be observed, however, that by the statute 6 Geo. IV. c. 16. "all executions against the goods and chattels of any bankrupt, bona fide executed or levied more than two calendar months "before the issuing of the commission, shall be valid, notwith- fore commis"standing any prior act of bankruptcy by him committed: Pro- sion, valid. "vided the person or persons, at whose suit such execution shall "have issued, had not, at the time of executing or levying the notice of any prior act of bankruptcy by him committed." But, by a subsequent clause of the same statute", "no creditor "having security for his debt, or having made any attachment in "London, or any other place, by virtue of any custom there used, "of the goods and chattels of the bankrupt, shall receive, upon "any such security or attachment, more than a rateable part of "such debt, except in respect of any execution or extent served " and levied by seizure upon, or any mortgage of or lien upon, any part of the property of such bankrupt, before the bankruptcy: Provided, that no creditor, though for a valuable consideration, "who shall sue out execution upon any judgment obtained by de"fault, confession, or nil dicit, shall avail himself of such exe"cution, to the prejudice of other fair creditors, but shall be paid "rateable with such creditors." Therefore, where A. obtained a judgment, by confession or nil dicit, against B., and issued a fieri facias, under which B.'s goods were seized; and whilst the goods remained unsold in the sheriff's hands, B. committed an act of bankruptcy, on which a commission was issued; and the sheriff, after notice of the commission, sold the goods, and paid over the Proviso as to execution, on judgment by default, &c. To what cases statute applies. CHAP. XLI. proceeds to A.; it was holden, that the amount might be recovered from the sheriff, by the assignee of B., as money had and received to his use a. And an execution on a final judgment, following a judgment by nil dicit in assumpsit, was holden to be within the proviso of the 6 Geo. IV. c. 16. § 108. although there was no concert between the parties, and the judgment was obtained before the act came into operation b. To what not. The above clause, however, only applied to creditors having security for their debts, at the time of the bankruptcy: And therefore, where A. having a debt from B., secured to him by warrant of attorney, entered up judgment by non sum informatus, issued a fieri facias, and took from the sheriff a bill of sale of the goods seized; and B. having soon afterwards become bankrupt, his assignees took possession of and sold the goods so transferred to A., who brought an action of trover for them; the court held, that he was not a creditor, having security for his debt, within the above statute, and that he was entitled to recover. So, where judgment was entered up on a warrant of attorney, given by two joint traders, and a fieri facias issued, returnable on the second of May; on the first of that month, the sheriff's officer received from the defendant the money directed to be levied; on the 2d of May, one of them committed an act of bankruptcy, and the other on the fifth on the eleventh, a commission of bankrupt issued; and on the 19th, the sheriff paid over the money to the execution creditor; the court held, in an action by the assignees, that such creditor was entitled to retain it, not being a creditor having a security at the time of the bankruptcy d. And it seems to be now settled, by the above and other cases, that where goods are taken and sold by the sheriff, before an act of bankruptcy, under a fieri facias, on a judgment obtained by default, confession, or nil dicit, the execution creditor is entitled to the proceeds, though they still remain in the hands of the sheriffd; and even though the act of |