residue of the said debt and damages, or any part thereof. Tindal, for the plaintiff. There are two questions in this case: first, whether the sheriff ought not to have sold the growing corn, notwithstanding the subsequent delivery of the writ of possession; and, secondly, whether he ought to have allowed the landlord the year's rent, under the statute of 8 Ann. c. 14. Now, the effect of the seizure was to vest in the sheriff the property in the things seized, from the time of the delivery of the writ of execution. On the 1st of July, therefore, the property in the corn was divested out of the tenant, and vested in the sheriff, for the purpose of levying the debt; and this case must be considered as if the judgment had been obtained, and the writ had issued at the suit of another landlord. Now, the delivery of a writ of hab. fac. poss., subsequent to the delivery of the fi. fa., will not divest the right of property in the corn growing, which was already in the sheriff. The judgment in ejectment is, that the plaintiff recover his term against the defendant, of and in the premises aforesaid. The writ orders the sheriff quod habere facias, possessionem. This can only bind from the time of the execution of the writ, for in an action for mesne profits, the course is to give damages up to the time of the execution of the writ. It cannot have any retrospective power, so as to take away any right vested in a purchaser of the crops. Suppose for example, the tenant had sold the crops to a purchaser, and after the sale, the sheriff entered under the habere facias possessionem, would the landlord in that case have been entitled to the growing crops. [Bayley J. I think that he would, if the sale took place sub sequently 1821. HODGSON against GASCOIGNE. 1821. HODGSON against GASCOIGNE. sequently to the day of the demise laid in the declaration in ejectment. For, from that time, the tenant must be considered as a wrong doer.] The tenant certainly must be taken to be a wrongdoer from the 5th day of December, 1815. The statute of frauds, however, enacts that no fieri facias, or other writ of execution, shall bind the property of goods, but from the time that such writ shall be delivered to the sheriff to be executed. An hab. fac. poss. is a writ of execution, and therefore it could only bind the property from the time of its delivery. ABBOTT C. J. The property in the growing corn, in fact was not vested in the tenant at the time of the seizure, for after the judgment was obtained in ejectment, the defendant is to be considered, in point of law, as a trespasser from the day of the demise laid in the declaration. From that time, therefore, the property was divested out of him, and he had no property at the time when the fieri facias was delivered to the sheriff. The landlord, in an action for mesne profits, might have recovered the value of all the crops. Tindal. If that be so, the defendant has no right to the year's rent, for the lease determined on the 5th December, 1815, as he maintains by his ejectment. The S Anne, c. 14. evidently contemplates an existing tenancy at the time of the execution, for the words of the statute are," that no goods lying or being upon any messuage, land, or tenement, which are, or shall be leased for lives, term of years, at will, or otherwise, shall be liable to be taken by virtue of any execution, &c." The object of the act was, to make the landlord amends for taking away his power of distress, but here he could have no distress, because there was no tenancy, and the plaintiff contends that the defendant was a trespasser, from the day of the demise laid in the declaration in ejectment. Littledale, for the defendant, admitted that he could not claim to have the year's rent allowed; upon which The Court ordered the verdict to be entered for the plaintiff for 8861. Judgment for the Plaintiff. 1821. HODGSON against GASCOIGNE. HARDCASTLE against NETHERWOOD. Saturday, consideration commodation, quest of the de THE plaintiff declared, that whereas defendant, on, Assumpsit in plaintiff from any loss or damage by reason of the ac accept certain bills of exchange, and would deliver them, so ac cepted, to the defendant, in order that he might negotiate the same for Averment, that plaintiff did his own benefit. Defendant un de dertook to pro vide money for the payment of the said bills, as they became due, and to indemnify the plaintiff from any loss or damage by reason of the acceptance thereof. Breach, that defendant did not provide money for the bills, nor indemnify the plaintiff from damage, by reason whereof the plaintiff, as acceptor, was forced and obliged to pay to the holders of the bills certain sums of money, with interest, charges, and expences: Held, upon demurrer, that, as plaintiff might be entitled upon this declaration to recover special damage, a set-off was not a good plea. fendant, 1821. HARDCASTLE against NETHERWOOD. fendant, for the purpose aforesaid. And that, although the said bills were negociated by defendant for his own benefit, and the same have long since become due, yet defendant did not provide money for the payment of the said bills when the same became due, nor indemnify plaintiff from damage by reason of his acceptance of the bills, but refused so to do; by reason of which premises, plaintiff, as such acceptor of the said bills, was called upon and forced and obliged to pay, and did then and there necessarily pay to the respective holders of the bills, divers large sums of money, together with certain interest, charges, or expences thereon, amounting in the whole to a large sum of money, to wit, 100%., and by means thereof the said plaintiff is damnified to the amount thereof. Defendant pleaded the general issue, and actio non accrevit infra sex annos, and also a plea of set-off. The plaintiff demurred generally to the plea of set-off, and the defendant joined in demurrer. Manning, for the plaintiff, referred to the case of Auber v. Lewis (a), as deciding that to a declaration on a contract, upon which the plaintiff might have sued for unliquidated damages, a set-off could not be pleaded. Upon which the Court called upon Littledale, for the defendant, who argued that the demand sought to be recovered by the first count was simply a debt, for which the defendant might have been held to bail, without a judge's order, and which might be proved under a commission of bankrupt. Sed (a) E. T. 1818, K. B. Manning's Nisi Prius Digest, 2d ed. p. 251. Per Per Curiam. This case cannot be distinguished from that which has been cited. The Court must look to the contract declared on, and if that is such as might entitle the party to recover special damages, the statutes of set-off do not apply, although no special damage be alleged. Here, however, the jury might possibly give damages for the manner in which plaintiff had been forced and compelled to pay the amount of the bills. The defendant might, perhaps, have pleaded a set-off to that part of the count which charges the defendant with the amount of the acceptances paid by the plaintiff. Judgment for the Plaintiff. 1821. HARDCASTLE against NETHERWOOD. HARLEY and Another against GREENWOOD. Monday, CTION against the defendant, as the acceptor of Declaration upon four bills Plea in bar, was indebted four bills of exchange. Plea, that before the de- of exchange. fendant became bankrupt, and before the making of the that defendant promises in the declaration mentioned, he was indebted to plaintiff's in to the plaintiffs in divers large sums of money, amounting to 150l. for goods sold, and that for securing to and that, for divers large sums of money for goods sold; securing to the plaintiffs the said several sums of money, defendant, before his bankruptcy, accepted a bill of exchange drawn by the plaintiffs, for and in payment of one of the said several sums of money in which he was so indebted as aforesaid; and that he had accepted each of the several bills of exchange for which the action was brought, in payment of one other of the said several sums of money in which he so stood indebted as aforesaid. The plea then stated that defendant had duly become bankrupt; and that the bills of exchange mentioned in the declaration were proveable under the commission; and that the plaintiff's, being creditors of the defendant for the amount of the money comprised in all the several bills, proved the amount of one bill only under the commission, and thereby made their election to take the benefit of the commission, not only with respect to the debt so proved, but also as to the bills and debts mentioned in the declaration: Held, upon demurrer, that this plea could not be supported; first, because the proof of a debt under the commission of bankruptcy cannot be pleaded in bar to an action at law brought for the same debt; secondly, that the election of the creditor to take the benefit of the commission, is confined by the 49 G. 3. c. 121. 8. 14. to the debt actually proved, and does not extend to distinct debts ejusdem generis due at the same time. the |