ment creditors could execute their judgments against the purchaser, they would obtain a preference over the other creditors; for, of course the purchaser was not to pay his money, and also be liable to the judgments. The case of Orlebar v. Fletcher (f), appeared to be a stronger case against the judgment creditors than the present, for there the purchaser had paid the greater part of the purchase-money before the bankruptcy; and although, in the present case, the conveyance was executed, yet it was not delivered, and therefore might be considered as an escrow (g) and even if it operated to vest the legal estate in the purchaser, yet the case was within the spirit and meaning of the act of James; because the estate in effect formed part of the property to be distributed. Upon these grounds, the assignees filed a bill against the purchaser, for a specific performance; but the Master of the Rolls thought the title too doubtful to enable him to force it on the purchaser.

In a later case, however (h), where a man agreed to sell his estate, and became a bankrupt before the conveyance was executed, the same learned judge held that the assignees of the seller could make a title without the concurrence of judgment creditors whose judgments were duly docketed before the bankruptcy.

The 21 Jac. 1, c. 24, which enables persons to have new execution against the property of debtors, dying in execution, provides, that the act shall not extend to give liberty to any person or persons, their executors or administrators, at whose suit or suits any such party shall be in execution, and die in execution, to have or take any new execution against any the lands, tenements, or hereditaments of such party dying in execution, which shall at any time after the said judgment

(f) 1 P. Wms. 737.

(g) Derby Canal Company v. Wilmot, 9 East, 360; see O'Dell v. Wake, 3 Camp. 394,

where the deed was in the pos-
session of the purchaser's solicitor.
(h) Sharpe v. Roahde, 2 Rose,

192.

or

or judgments be by him sold bona fide for the payment of any of his creditors, and the money which shall be paid for the lands so sold either paid or secured to be paid to any of his creditors, with their privity and consent, in discharge of his or their due debts, or of some part thereof.

II. Formerly, if goods had been sold during long vacation. a fieri facias tested the preceding term would have overreached the sale, although issued subsequently to it (i).

To remedy this inconvenience, it was enacted (k), that no writ of fieri facias, or other writ of execution, should bind the property of goods against whom such writ of execution was sued forth, but from the time that such writ should be delivered to the sheriff, under-sheriff, or coroners, to be executed; and for the better manifestation of the said time, the sheriff, under-sheriff, and coroners, their deputies and agents, should upon the receipt of any such writ, without fee for doing the same, indorse upon the back thereof the day of the month or year whereon he or they received the same (I).

It has been said (4), that the whole intention of this provision was to secure purchasers, under a second execution, against any former writ which might have been delivered to the sheriff. But a purchaser under a second execution was

(i) Houghton v. Rushley, Skin. 257; and see Comb. 145; 2 Ventr. 218.

(k) 29 Car. II. cap. 3, s. 16.

(1) Per Ashurst, J. in casu Hatchinson v. Johnson, 1 Term Rep.

731.

(I) This statute only operates in favour of purchasers. It was not passed for the benefit of the debtor. Houghton v. Rushley, sup. Norden v. Needham, Pasch. 3 W, and M. B.R. MS. In this last case it was held, that deeds and writings could not be taken in execution.

always

always protected against any prior writ of which he had not notice, by the rule of law, independently of the statute of frauds (); and the reason already given appears to be the

correct one.

It has been doubted whether the word "goods," in the act referred to, extends to leasehold estates; and it appears by two opinions published in Mr. Rigge's Observations on Registry, that Mr. Serjeant Hill thought it did not include leaseholds, but that they might be extended on a writ of elegit; and consequently were bound from the time the judgment was duly entered and docketed; and that, on the other hand, Mr. Butler thought the word "goods" did comprise leaseholds, which therefore were not bound until delivery to the sheriff of the writ of execution.

It must be admitted, that a leasehold for years may be extended on an elegit, if it is in the possession of the defendant at the time execution is awarded (n). It was, however, settled long before the statute of Charles II. that a sale of chattels was good after judgment, although not after execution awarded (0); so that it is evident, that as to a term of years the command to the sheriff in an elegit does not overreach the sale in the same manner as it does in the case of a freehold estate. This distinction appears to have been expressly taken in Fleetwood's case.

With respect to judgments, the statute of frauds hath two branches: the one relating to judgments against real the other relating to executions on judgments against

estate;

(m) See Smallcomb v. Buckingham, 1 Lord Raym. 251; Carth. 419; Payne v. Drewe, 4 East, 523. (n) Sir Gerard Fleetwood's case, 8. Co. 171; and see and consider 31 Ass. p. 6; 38 Ass. p. 4; and see 2 Inst. 395; Gilb. Ex. 33, 35. The author fell into an error in

this respect in the first edition.

(0) Sir Gerard Fleetwood's ca. 8 Co. 171; and see 1 Fitz. Abr. tit. Execution, pl.108; 2 Ro. Abr. 157; Wilson v. Wormol, Godb. 161, pl. 226; Shirley v. Watts, 3 Atk. 200.

goods

goods or personal estate. The act being a remedial one, the mode of discovering whether leaseholds are bound by the last provision, seems to be, first, an enquiry whether purchasers of leaseholds were within the mischief the legislature intended to guard against; and if they were, then an enquiry whether the word "goods" is sufficiently comprehensive to effectuate the intention of the act.

First then, the act was passed for the quiet and in favour of purchasers; and admitting that leaseholds were only bound from the award of execution, it is evident that the first provision in the act does not apply to leaseholds; which are, therefore, clearly within the mischief intended to be guarded against by the second provision, as a sale of them is liable to be overturned by a writ awarded in vacation, and tested in the preceding term; and if we do not hold leaseholds to be within the operation of this branch of the act, the conse quence is, that purchasers of them are still obnoxious to the danger which the statute intended to guard them against.

Assuming that leaseholds are within the meaning, it remains to inquire, whether they are within the words of the act. This depends upon the construction which the word goods," as used in the act, ought to receive,

Biens, bona, Sir Edward Coke says (p), includes all chattels, as well real as personal. Chattels, he adds, is a French word, and signifies goods, which by a word of art we call catalla. And this, as Sir Wm. Blackstone observes (9), is true if understood of the Norman dialect, for in the Grand Coustumier (r), we find the word chattels used and set in opposition to a fief or feud, so that not only goods, but whatever was not a feud, were accounted chattels; and the learned commentator is of opinion that our law adopts it in the same large, extended, negative sense.

This opinion appears to be correct, if confined to the word

(p) Co. Litt, 118, b.

(y) 2 Comm. 385, 7th edit.

(r) C. 87.

chattels;

chattels; but it must not be extended to the word goods, which, in our law, certainly has a more confined operation.

By the civil law, however, bona includes all chattels, as well personal as real; and therefore a general bequest of all one's goods will pass a leasehold estate (s), because the civil law guides the construction of bequests of personalty; but it seems clear, that in an assignment, which must be construed according to the rules of the common law, a leasehold estate will not pass under the word goods (I).

It is evident, therefore, that in some cases that word will include leaseholds, while in others it will not; and the true rule to discover what sense was affixed to it in the statute of frauds seems to be, an investigation of the meaning usually attached to the same word in acts of parliament passed before that statute.

By the statute of West. 2, (f), it is enacted, that where, upon the death of any person intestate and indebted, the goods (bona) shall come to the ordinary, he shall be bound to pay the debts so far as the goods (bona) will extend, in the like manner as executors would have been if he had left a will. And in the 31st Edw. III. (u) for the commitment of administration, the word goods (biens) only is used.

(s) Portman v. Willis, Cro.

Eliz. 386.

(t) 13 Ed. 1. c. 19,
(u) Stat. I. c. 11,

(I) This was decided in 4 Ed. VI. ; but in Portman v. Willis, ubi sup. Gawdy was of opinion, against Popham and Clench, that a grant of omnia bona mobilia et immobilia, would pass leases for years; and So, be said, would a grant of omnia bona in general; for 39 H. VI. 35, was, that a man had rent for years, and granted omnia bona sua; and it was held that this rent passed; and he vouched 4 Hen. IV. as another authority, because an executor shall have an ejectione firma by the equity of the statute of 4 Ed. III. de bonis asportatis.

On examination, it appears, that the authorities cited by Gawdy do not apply. The grant was of omnia bona et catalla, tam viva quam mortua ; and in the statute of 4 Edw. III the words biens et chateux are used,