Sheriff Execution II

General

The office of Sheriff is a very ancient office, dating back to the early middle ages.  Formerly, they played a variety of roles in administration, the judicial sphere as well as in enforcing the law. One of their principal remaining roles is the enforcement of court orders, by the seizure and sale of goods

Where no sheriff stands appointed, the County Register’s exercise the functions of the sheriff.  There are no sheriffs outside the principal urban areas. Originally, the sheriff executed superior court (principally High Court) orders.  Their functions in this regard have been extended by statute to the execution of District and Circuit Court orders.

In principle, only one execution issues on foot of a judgment. Execution orders may be issued concurrently in a number of different counties, although they may not be acted upon concurrently.  Where the sheriff receives the whole or part of a debt by levy, he must countermand other orders.  If there is a levy under an order other than a seizure, the second order should not be issued until the first one has been returned.

A sheriff is bound to execute a proper and lawful order.  He must act under and within the scope of the order.  His duty is to execute as soon as reasonably practicable. The sheriff should execute an order within a reasonable time. The sheriff’s duty is to seize goods reasonably sufficient to meet the relevant debt.  He may be liable for excessive execution, if he exceeds what is necessary, at the suit of the party affected.  If he does not act in good faith, he may be liable for exemplary damages.

If a judgment or order wrongfully induces the sheriff to seize particular goods by representing that they belong to the judgment debtor, the judgment creditor may be liable.

Breaking and Entering

The Enforcement of Court Orders Act provides that a sheriff may enter and break property without liability.  This includes any lands, house, close or other premises.  He may enter for the purpose of taking goods, animals or chattels.

Before breaking into a dwelling house or other building, he must make reasonable efforts to enter peacefully and without violence.  On breaking and entering a premises of someone other than the person against whom he enforces the execution order, he must have reasonable grounds for believing that some goods, animals or chattels of the latter person was on the premises or must, in fact, finds such goods, animals or chattels.

No action lies against a sheriff for the taking of goods, animals or chattels found in a house occupied by the debtor and alleged to be the property of a spouse of a child or other person residing there. There is a right of indemnity against the debtor, for the persons concerned whose property has been seized.

Fieri Facias

Fieri facias is a common law execution writ against goods.  It is directed to the sheriff or County Register commanding him to cause goods and chattels of the judgment debtor within his bailiwick (area)  to be recovered, seized and sold to be paid to the party by whom judgment is recovered.  If there are no goods available, a return of no goods (nulla bona) may be made and the execution is complete.

Unlike the case with other orders, it is not necessary to serve the order prior to issuing a writ for recovery of the goods.  It may be taken out against each of a number of debtors who are jointly and severally liable judgment debtors.

A sheriff may seize goods without physically taking them.  An assertion of an intention to seize the goods is sufficient.  Some positive act must be done to assert control.

A sheriff may enter a “walking possession” agreement, in which case the custody remains with the debtor, but the goods are in the sheriff’s legal possession.  A request for such an agreement may be deemed sufficient to constitute a seizure, as it is an assertion of a right of control and possession under the court order.

A sheriff is obliged to prepare a list of items seized within 24 hours.  If practical before removal, he should cause a list to be given to the defendant or other person in apparent possession.

Goods which may be Seized

Apart from a statutory authority, a sheriff may take goods which are the property of the judgment debtor only.  If there is a doubt, the sheriff may take goods and interpleading.  Interpleader is a procedure which requires third parties to claim ownership of goods in the possession or custody of the party who interpleads.

A sheriff may execute against movable goods, removable fixtures, crops.  He may not seize against goods which have already been seized by another, such as by a landlord by distraint.

Until the Land and Conveyancing Law Reform Act, 2009, a sheriff could technically seize a “chattel real” including a lessee’s interest under a lease.  The interest had to be a legal interest.   In practice, this was rarely done and the power has been removed.

The Common Law Procedure Act 1853  allows monies including cheques, bills of exchange, promissory notes, bonds, specialty debts and bank notes to be seized by a sheriff.  Documents such as security for monies belonging to the person which is subject to the order may be seized.

Jointly own assets may be seized, leaving the other co-owner to claim a share of the proceeds of the sale.  The sheriff may seize goods in which debtor has an interest, which is capable of realisation by sale, notwithstanding that he is not the full or principal owner.

Goods subject to a security interest in favour of third parties may be seized, with payment of the proceeds in accordance with the interest to the person entitled on sale.  Goods over which the debtor holds a pledge which is irredeemable may be seized. A debtor will not generally have an interest in leased goods or in goods which he holds a possessory lien only.

Exempt Goods

A range of goods are exempt from seizure by the sheriff. There are exceptions/exemptions for necessary wearing apparel, bedding, tools and implements of the debtor’s trade not exceeding statutory set values.

Goods and chattels in any lands held under a lease are not liable in execution unless the judgment creditor pays the landlord a sum of money not exceeding one year’s rent as is due for rent at the time taken.

Under a the walking possession agreement, the sheriff may assume control of the goos, while leaving them in the custody of the judgment debtor or another.  If there is no such agreement, the goods which have been seized may be deemed to have been abandoned or relinquished from seizure.

Sale

The sheriff may sell seized goods seized by auction, once two days has expired since execution, he is obliged not to delay unreasonably.  Subject to this, the sheriff has a quite broad discretion in relation to the manner of holding and sale of goods.

On sale, the sheriff may pay the proceeds to the judgment creditor.  He may not hand over the goods in specie. The creditor acquires no title or interest in them.  The judgment creditor has a right to the recovery of monies on sale.

Where more than one order is lodged with the sheriff, they are to be executed in the order delivered.

The Enforcement of Court Orders Act provides that a person who purchases goods, animals or chattels taken by the sheriff in execution at a sale, take s good title.  This is so notwithstanding invalidity in or irregularity in the seizure of goods.

Once a writ has been executed by the sheriff, it technically binds the goods of the judgment debtor.  However, a third-party who purchases before the seizure, for good consideration without notice is not affected by reason of a provision in the Sale of Goods Act.

Until the goods are sold by the sheriff, the judgment debtor may pass good title, subject to the above provisions.  However, once the goods have been seized, the protection is not available as they do not remain unexecuted in the hands of the sheriff for the purpose of the Sale of Goods act.

Completion of Execution

Upon completion of execution, the judgement creditor may retain proceeds even as against a liquidator or assignee.  The execution must have been completed, before the commencement of the insolvency process. Completion of the process requires seizure and sale.

Notice may be served on the sheriff that insolvency has commenced. In this case, the sheriff is obliged to deliver goods and monies seized in satisfaction of execution, but not delivered.  He is entitled to the costs of execution as a first charge under the Companies Act. The rules in respect of bankruptcy are not as clearly set out, as in the Companies Act provision, but in broad terms, the same principles are likely to apply.

Under the Bankruptcy Acts, when goods have been seized, sold, and monies paid to the sheriff or county register, the monies must be retained for 21 days.  If within that period the sheriff or creditor or county register received notice for adjudication, they must be paid or surrendered to the Official Assignee.

Fees

There is a statutory schedule of fees payable on issue of a writ of Fieri facias. Charges are paid by the party seeking execution.  However, the fees may be recovered by the sheriff from the party against whom execution is directed for repayment to the judgment creditor.  The sheriff is not entitled to a fee for execution where no goods are returned.

The fees payable include

• poundage fee on a seizure and sale of person’s property,
• fee for execution by a court messenger;
• travelling expenses;
• expenses of removal to a place for safekeeping;
• expenses for sustenance and maintenance of animals,
• expenses for storage and safekeeping pending sale; and
• expenses for sale of a property.

Where payments are tended to release the goods, the sheriff is entitled to require payments of poundage fees and expenses, reasonably or necessarily incurred in removing and storing goods.