Act of February 25, 1819-January 1, 1820. R. C. ch. 134. in the same court were adjudged for his damages, as well by reason of detaining the said debt, as for his costs in that suit expended, whereof he is con Hard. 48, that bank notes, &c., cannot be taken in execution, they being merely choses in action. And on same principle bank and library shares were exempted in Denton et al. v. Livingston, 9 Johns. R. 96. As to the creditor's relief, against this species of his debtor's property, in equity, see Bayard et al. v. Hoffman et al. 4 Johns. Ch. Ř. 450; Hadden et al. v. Spider et al. 20 Johns. R. 554, (in error,) and authorities there cited. But see M'Carthy v. Gold, 1 Ball & Beatty, 387; Grogan v. Cooke, 2 Ball & Beatty, 230-233; Donovan v. Finn, 1 Hopkins's Ch. R. 59; and post. No. 10, []. An equitable interest in a term of years cannot be sold under a fieri facias. Scott v. Scholey et al. 8 East; Metcalf et al. v. Scholey et al. 2 N. R. (5 B. & P.) 461. Nor an equitable in contingent interest in chattels personal. Claytor v. Anthony, 6 Rand. 285. Leases for years, be they of ever so long continuance, 4 Rep. 74, fruits of industry, as corn growing, Whipple v. Foot, 2 Johns. R. 418, or sown in the ground, may be taken by virtue of this writ; and if the officer sell the corn growing, the purchaser shall have liberty of cutting and carrying it away. 3 Rep. 11; Dalt. 145, 556; Peacock v. Purvis, 2 Bro. & B. 362; and Am. & Fer. on fixtures, 263; and Whipple v. Foot, 2 Johns. R. 418; Stewart v. Doughty et al. 9 Johns. 108; Penhallon v. Dwight, 7 Mass. R. 34; Hodgson et al. v. Gascoigne, 5 Barn. & Adolph. 88; Wright v. Dewes et al. 1 Adolp. & Ellis, 641; and see Evans v. Roberts, 5 Barn. & Cres. 829; and the opinion of Baylor and Littledale, justices. Such things as belong to the freehold, and go to the heir, cannot be seized. Gilb. on Executions, 19; Winn v. Ingelby et al. 5 Barn. & Adol. 625. But fixtures put up by tenant for the convenience of his trade, and which he may remove during his term, may be levied on. Poole's case, 1 Salk. [368.] For the character of such fixtures, see the elaborate opinion of Ld. Ellenborough, C. J. in Elwes v. Maw, 3 East, [50-57] and the late case of Buckland v. Butterfield et al. 2 Brod. & Bing. 54; Holmes v. Tremper, 20 Johns. R. 29; Van Ness v. Pacard, 2 Peters, 137. Query, whether stills, carding machines and things of the like nature are to be considered as real or personal property. Poage v. Bell, 3 Rand. 586. The main mill-wheel and gearing of a factory, attached to the factory, and necessary for its operation, are fixtures and real estate, to which the right of dower attaches. Powell et ux. v. Monson & Brimfield Man. Co. 3 Mason, 459; see Van Ness v. Pacard, 2 Peters, 137. A pump erected by a tenant during his term, and very slightly affixed to the free hold is removable as a tenant's fixture. Grymes v. Boweren, 6 Bing. 437. Where the yearly tenant of a house had at his own expense during his term, hung bells, but quitted the premises without removing them: Held, that by remaining fixed to the freehold after the expiration of the term, they became the property of the landlord and that the tenant could not maintain trover for them after landlord had severed them from the freehold. Lyde v. Russell, 1 B. & Adolp. 394; and see Treatise on the law of fixtures, by Amos and Ferard 87, “ very excellent treatise." Pr. Ld. Tenterden, C. J. "a Can an interest in remainder in personal chattels be taken in execution under a fieri facias? See Leslie's ex'r v. Briggs, 5 Leigh, 6. In the execution of this writ, the officer will be indemnified as far as he acts necessarily in order to the taking of the goods, &c. He cannot break open the defendant's dwelling house, but if he gains entrance, the rest of the house being only for the protection of the goods, he is justified in breaking open chests, inner doors, &c. Hutchison v. Birch et al. 4 Taunt. 619; see Cooke v. Birt, 5 Taunt. 765. And he may break open a barn not adjoining to a dwelling house, which is made for the conservation of goods only. Gilb. on Executions, 17; Haggerty et al. v. Wilber et al. 16 Johns. R. 287. But the dwelling house of a stranger is not privileged from entrance by the officer. 5 Rep. 93. If, however, the goods of the defendant are not found therein, the officer may be treated as a trespasser. Cooke v. Birt, 5 Taunt. 765; Johnson v. Leigh, 6 Taunt. 246. To constitute an effectual levy, 'tis not essential that the officer should make an actual seizure; if he have the goods in his power and view, 'tis sufficient; see Bullitt's ex'rs v. Winstons, 1 Munf. 269, and Haggerty et al. v. Wilber et al. 16 Johns. R. 287. A seizure of part of the goods in a house in the name of the whole, is a good seizure of all. Cole v. Davis et al. 1 Ld. Ray. 724; Lewis, esq. v. Smith, 2 Serg. & Raw. 142; Beekman v. Lansing, 3 Wendell, 446. A judgment and execution delivered to the sheriff against a fraudulent donor, binds personal property in the hands of the fraudulent donee. The execution is against the goods and chattels of the defendant generally; and, the conveyance being void, the goods are still the goods of the donor, and may be taken under the execution. Pr. Green, J. in delivering opinion of court in Chamberlayne et al. v. Temple, 2 Rand. 395-6, and Hyslop v. Clarke, 14 Johnson, 458. An execution coming to the hands of an Act of February 25, 1819-January 1, 1820. R. C. ch. 134. before the victed, as appears to us of record, and that you have the said the judges or justices (c) (as the case may be,) of our said court, day of to render to the said C. D.(d) of the debt and damages aforesaid. And have then there this writ. Witness, &c. In case upon a promise. As before, unto , for his damages, which he sustained, as well by reason of his not performing a certain promise and assumption to the said C. D. by the said A. B., lately made, as for his costs, by him, about his suit in this behalf expended, &c. In trespass. As before, unto , for damages, as well by occasion of a certain trespass by the said A. B. to the said C. D. offered, as for his costs, &c. If for the defendant,-say, For his costs about his defence in a certain action, at the suit of the said, &c. In covenant. As before, unto for damages, &c. by occasion of a breach of a certain covenant between the said A. B. and C. D. lately made, &c. A WRIT OF elegit. The commonwealth, &c. greeting: Whereas, A. B. at our court, &c. before our judges, (or justices,) held, hath recovered against C. D. the sum of which to the said plaintiff was adjudged for a certain debt or damages, (as before) : and the said A. B. hath chosen to have delivered to him all the goods and chattels of the said C. D., saving only the oxen and beasts of his plough, and also a moiety(1) of all his lands and tenements in your bailiwick, to have and to hold the goods and chattels aforeofficer, when he had property of the debtor in his possession, under a prior execution, cannot be considered as levied on the property by mere operation of law; there must be an actual levy thereon. Scriba, &c. v. Deanes et al. 1 Brock. R. 166, 173. (c) (d) Forms of writs furnish strong evidence of what was law when they were devised, and of the duty of the officer to whom they are directed. Originally it was regularly the duty of the officer to have the money in court, and it has been held [see 3 Lev. 204; Gilb. Exec. 16,] that not even payment to the creditor himself could excuse the non-performance of this duty. The rigour of the rule has been considerably relaxed, [2 Show. 87,] but the form of the writ yet is, that the money shall be in court on the return day, and there appears no excuse for omitting this duty, unless it shall have been paid to the creditor. The sheriff may certainly make such payment out of court, if no circumstance occurs which legally obstructs or opposes it, such as an injunetion, &c.; or, an execution against the goods and chattels of the person to whom the money in his hands shall be payable. In the latter case, it seems to the court still to be the duty of the sheriff to obey the order of the writ, and to bring the money into court, there to be disposed of as the court may direct. Marshall, C. J. delivering the opinion of the court in Turner v. Fendall, 1 Cranch, 136-7. (1) If there be two decrees on the same day against a defendant's land, the whole, and not a moiety only of the land, ought to be directed to be sold; for, at law, each of two judgments would have taken a moiety of the land, and both, of course the whole, if it had been extendible at law. Coleman v. Cocke, 6 Rand. 618. Quary,-whether, if there be two judg ments of different dates, and elegits on each, and a moiety of the debtor's lands be extended on the elder, the whole instead of half only of the other moiety, be not properly extendible on the younger judgment? Haleys v. Williams, 1 Leigh, 140. Where two elegits are issued the same day, on judgments signed in the same term, the sheriff may extend on each an entire moiety of the defendant's land, although the judgments are at the suit of different plaintiffs; and the inquisition on the second elegit recites, that a moiety has been extended on the first. The words of the statute relate to the time of issuing the writ. The sheriff must take on each writ a moiety of the lands that the defendant has at the time of issuing the writ. At the time these two writs issued, the defendant had the whole of the lands in question, and the sheriff was, therefore, bound to take a moiety on each. On a writ issued subsequently to a prior execution, the sheriff can only take the moiety of the moiety that remains; but if, at the time of issuing two writs, the defendant is in possession of the whole of his land, the sheriff may take a moiety under each; and there is no difference in the case whether the two writs are at the suit of the same, or of separate parties, provided they are tested at the same time, and have relation to the same day. Doe dem. Davies v. Creed, 5 Bing. 327, H. T. 1829. Act of February 25, 1819-January 1, 1820. R. C. ch. 134. said, as his own proper goods, and the said moiety as his freehold, to him and his assigns, until he shall have levied thereof the debt and damages aforesaid: Therefore, we command you that you cause to be delivered all the goods and chattels of the said C. D., saving the oxen and beasts of his plough, and also a moiety of all his lands and tenements in your bailiwick, whereof he at the day of obtaining the said judgment was seized, (e) or at any time afterwards,(4) by reasonable price and extent, to have and to hold the said goods and chattels, to him the said A. B., as his own proper goods and chattels, and the said moiety as his freehold, to him and his assigns, until he shall have levied thereof the debt and damages aforesaid; and that you certify our said judges, (or justices,) under your own seal, and the seals of those by whose oath make this extent and appraisement, how you execute this writ, the day of And have then there this writ, &c. 13 Ed. 1, c. 18. A CAPIAS AD SATISFACIiendum. The commonwealth &c. greeting: We command you that you take A. B. late of , if he be found within your bailiwick,(3) and him safely keep, so that you have his body before our judges (or justices) of our C. D., the sum of court, &c. the day of you shall to satisfy which the said C. D. hath recovered against him for debt, also, &c. as before. In case, trespass or covenant, as in the fieri facias. Which said writs so issued, shall be executed by the sheriff or other officer to whom the same shall be directed, and shall be returned according to the respective forms hereafter mentioned, to wit: The return of a FIERI FACIAS. By virtue of this writ have caused to be made the within mentioned sum of chattels of the within named A. B. which said sum of (or justices) within mentioned, at the day and place within ready, as that writ requires.(2) (e) In 1807 B. sold to M'T. a tract of land, who contemporaneously gave his bonds for the purchase money without security, and executed a deed of trust to secure the pay ment thereof. The deed from B. to M'T. was duly recorded, but the trust deed, never. In 1810 S. recovered judgment against M'T.; in 1809 the trust deed was carried into effect; and in 1816 an elegit was taken out by S. on his judgment against M'T. The purchaser under the trust deed, obtained a perpetual injunction against S. restraining him from extending this tract. Childers v. Smith, 1 Gil. R. 196, [and see tit. DoWER, note (b)]. (4) See ante, No. 1, note (a), and Stewart et al v. Hamilton's ex'rs, 8 Leigh, 503. (3) It is the duty of the sheriff, by himself or his officers, to adopt the proper measures to execute the writ; and if he does not, he must abide the consequences. (The Dean of Hereford v. Macknamara, 5 Dow. & Ry. 95.) The officer is bound to use all reasonable endeavours to execute it; he should go to the party's residence to ascertain whether he is there; and if he is not, to learn where he is; if, instead of pursuing this course, he relies on vague and casual information of the absence of the party, he does so at his peril. Hinman v. Borden, 10 Wendell, 367. to me directed, I of the goods and before the judges contained, 1 have (2) By act of March 30, 1831, Ses. Acts 1830-31, c. 25, p. 86, Sup. R. C., c. 136, p. 197, it is enacted "that it shall be the duty of every sheriff, serjeant or other officer, who shall make sale of goods and chattels under any execution, to return to the clerk's office from which it issued, together with the execution, on or before the return day thereof; or in case the return day thereof shall have passed, within thirty days after such sale or sales made and completed, an account of the sales made by him in virtue of such execution, specifying therein the several articles sold, the persons to whom sold, and the prices thereof; and if any sheriff, serjeant or other officer so making sales, shall fail to return such account, in manner and time as herein above provided, such sheriff, serjeant or other officer, and his securities, and the executors or administrators of all and every of them, shall, in every such case, be liable to a fine not exceeding one hundred dollars, recoverable by either plaintiff or defendant, or by the purchaser of the said property under the execution or either of them, by motion on ten days notice, before the court from which the execution issued. And such recovery may be repeated from time to time, at the instance of either party, and in the discretion of the court, until such account shall Act of February 25, 1819-January 1, 1820. R. C. ch. 134. Or, the within named A. B. hath no goods or chattels within my bair whereof I can make the sum within mentioned. Or, by virtue &c. I have caused to be made of the goods and chattels of the within named A. B. the sum of which I have ready to render to the within named C. D. in part of the debt and damages within mentioned; and I do further certify, that the said A. B. hath no more goods and chattels within my bailiwick, whereof at present I can make the residue of the said debt and damages, as by the said writ is required. Return of a WRIT OF ELEGIT. Inquisition indented, taken at the county aforesaid, the day of in in the year of our lord before me E. F. sheriff in the county aforesaid, by virtue of a writ to me directed, and to this inquisition annexed, and by oath of A. B. C. &c. good and lawful men of my bailiwick, who, being charged and sworn upon their oath, do say, that A. B. in the said writ to this inquisition annexed named, the day of the caption of this inquisition, was possessed of the goods and chattels following, as of his own proper goods, to wit: of the price of which I, the said sheriff, have caused to be delivered to the same C. D. to hold to him as his own proper goods and chattels in part of satisfaction of his debt and damages aforesaid, in the same writ mentioned: and, farther, the said jurors upon their oath do say, that the said A. B. at the time of rendering the judgment aforesaid, was seized in his own demense, as of fee, of and in (here name the houses and lands) with the appurtenances, of the annual value, in all the issues beyond reprises, of dollars; acres of which, or thereabouts, are a true and equal moiety of all and singular the lands, tenements, and hereditaments whatsoever, in the county aforesaid, of the said A. B.; which said moiety(f) I, the said sheriff, the day aforesaid, to C. D. in the said writ named, at a reasonable extent have delivered,(f) to hold to him and his assigns as his freehold, according to the form of the act in that case made and provided, until he shall have levied the residue of the debt and damages aforesaid, as the writ aforesaid requires ;(3) and, farther, the said jurors upon their oath do say, that the said A. B. at the time of giving the judgment aforesaid had not, nor, at the day of taking this inquisition, hath any other or more goods and chattels, lands or tenements, in the county aforesaid, to the knowledge of the jurors aforesaid. In testimony whereof, as well I, the said sheriff, as the jurors aforesaid, to this inquisition have severally put our seals the day, year and place above mentioned. be returned. Provided, That it shall not be the duty of the clerk of such court to make record of such account of sales, but to file and preserve the same with the execution." + See Davis v. Johnson, &c. 3 Munf. 81. (f) The sheriff is not bound to deliver a moiety of each particular tenement and farm, but only certain tenements, &c. making in value a moiety of the whole. Den v. The Earl of Abingdon, 2 Doug. R. [473]. But it is essential that the tenements, &c. con!stituting a moiety in value, should be set out by metes and bounds distinctly, and that it should so appear in his return. Pullen v. Birkbeak, Carth. 453; Fenny v. Durrant, 1 Barn. & Ald. [40].2 Bee Le .c.850 (f) Formerly it was usual for the sheriff to deliver actual possession; he now, only delivers legal possession, and to obtain actual possession, the plaintiff must resort to an ejectment. 2 Eq. Cas. Abr. 381, and 3 T. R. 295. But see the remarks of Gibbs, C. J. in Rogers v. Pitcher, 6 Taunt. 202. "I am aware that it has in several places been said, that the tenant in elegit cannot obtain possession without an ejectment, but I have always been of a different opinion, &c." See Wilson v. Jackson's adm'x, 5 Leigh, 102-105-108. The sheriff never delivers actual possession. The party must bring ejectment, in all cases, if possession be held by another; yet, in all the cases, the return of the sheriff is considered as a satisfaction of the debt, unless the party be evicted. Pr. Carr and Brockenbrough. Ronald's heirs v. Barkley et al. 1 Brock. R. 357. (3) The taking of the land in extent, &c. is a satisfaction of the debt, unless the party be evicted. Wilson v. Jackson's adm`x, 5 `/ Leigh, 102. Act of February 25, 1819-January 1, 1820. R. C. ch. 134. Return of a CAPIAS AD SATISFACIENDUM. By virtue of this writ to me directed, I have taken the within named A. B. whose body, before the judges (or justices) within named, at the day and place within contained, I have ready to satisfy C. D. of the debt and damages within mentioned, as within to me is commanded. See post. No. 30, 36. Or, the within named A. B. is not found in my bailiwick. 1748; 1793.* 2. § 2. Until the court of appeals shall direct the forms of executions returnable in vacation of the courts, the same shall be adapted by the clerks to the nature of the case. Jan. 24, 1799, c. 249, R. C. 3. § 3. When any writ of execution shall issue, and the party, at whose suit the same is issued, shall afterwards desire to take out another writ of execution at his own proper costs(g) and charges, the clerk may issue the same, if the first writ be not returned and executed; (h) and where, upon a capias ad satisfaciendum, the sheriff shall return, that the defendant is not found,(i) the clerk may issue a fieri facias; and if, upon a fieri facias, he shall return that the party hath no goods, or that only part of the debt is levied, in such case it shall be lawful to issue a capias ad satisfaciendum upon the same judgment;(1) and where part of a debt shall be levied upon an elegit, a new elegit shall issue for the residue; and, where nihil shall be returned upon any writ of elegit, a capias ad satisfaciendum or fieri facias may issue, and so vice versa; (2) and where one judgment is obtained against several defendants, execution thereon * The clerks of courts required to keep execution books. See ante, tit. CLERKS OF COURTS, No. 8, and note thereto. (g) (h) A plaintiff may take out a ca. sa. and a fi. fa. at the same time, but both cannot be served; Stamper v. Hodson, 8 Mod. 302; Comyns' Dig., tit. Executions (H.); Primrose v. Gibson, 2 Dowe & Ry. 193; 16 E. C. L. R. 78; he may use either the one or the other, as he sees advisable; by using the fi. fa. first, he makes his election, and cannot thereafter use the ca. sa. till after the return of the first. Miller v. Parnell, 6 Taunt. 370; Allison v. Rheam, 3 Serg. & Raw. 142; 2 Mars. 78, S. C. When part of the debt is levied, &c. see Coppendale v. Debonaire, Barnes' Notes, 213; Wilson v. Kingston, 2 Chitty's R. 203. See Edmond lessee v. Ross, 9 Price's E. R. 5. As to the character of the provision under the fieri facias, it must be exclusive and beneficial, &c. The court is of opinion, that the act of assembly contemplates the case where the first execution is not returned nor executed; that is, where it is out and may be served. Marshall, C. J. in Peyton v. Brooke, 3 Cranch, 96. This section authorizes a party who hath sued out one execution to sue out other executions, if the first be not returned and be not executed; if the first be executed though not returned, the party is not entitled to sue out any other execution. And if a debtor be arrested on a ca. sa. and discharged by order of the creditor or his agent, no other executions can be had on the same judgment or decree. Windrum v. Parker et al. 2 Leigh, 361. for debt, and M. being in custody under the process, N. and W. undertook and promised to C. that if he would suffer M. to go at large, for a short time specified, they would deliver him into custody again under the process, or would pay C. the amount of the debt. N. and W. fail to deliver M. into custody in assumpsit brought by C. against N. and W. on this promise, Held, C. is entitled to recover the amount of M.'s debt of N. and W.; the objection to the promise not being in writing having been expressly waived. Noyes et al. v. Cooper, 5 Leigh, 186. See Goodman et al. v. Chase, 1 B. & A. 297. See the opinion of judge Cranch in Ex parte Tobias Watkins, in which the authorities are collected, 7 Peters, R. app. No. 2, p. 670; and see Little v. Newburyport Bank, 14 Mass. R. 443. (i) An alias ca. sa. (the first having been returned not found,) may include the costs of issuing both. The judgment is for costs, generally; which includes all costs belonging to the suit, whether prior or subsequent to the rendition of judgment; as new costs accrue, the judgment opens to receive them. Peyton v. Brooke, 3 Cranch, 92-6. (1) The plaintiff may sue out a fi. fa. and afterwards sue out a ca. sa., as to part not made by fi. fa., and charge the bail. Stevenson v. Roche, 9 B. & C. 707; Olcott v. Lilly, 4 Johnson, 407. (2) According to the equitable and correct construction of this section, if a creditor, by judrnent or decree ques out a fi. fa. which is levied and returned satisfied in part only, he may take out another kind of execution, as an elegit, without pursuing the fi. fa. to a return of nihil. Coleman v. Cocke, 6 Rand. C. having sued out a ca. sa. against M. 618; and pending the proceeding on the fi. |