Act of February 25, 1819-January 1, 1820. R. C. ch. 134. shall issue, as if it were against one defendant, and not otherwise. May 1726, c. 3, § 9, 4 Stat. Larg. 158; 1748; 1792, c. 141, R. C.(4) 4. 4. If a tenant by elegit be evicted of his title in the lands, tenements or hereditaments, which he holds by virtue of any extent thereof, by judgment had against him, otherwise than by his own fraud or default, before satisfaction shall be made him for his debt, or damages and costs, he shall and may have a writ of scire facias against the debtor, his heirs, executors or administrators; and may thereafter sue out such other writ of execution for the residue of his debt or damages, and costs, as shall appear to remain unpaid, as if no execution had been theretofore issued. 32 Hen. 8, c. 5; 1792, c. 141, R. C.; Wilson v. Jackson's adm'x, 5 Leigh, 102. 5. § 5. When any judgment or recognizance shall be extended, the same shall not be avoided or delayed by occasion that any part of the lands or tenements extendible are or shall be omitted out of such extent. 16 and 17 Car. 2, c. 5; 1726; 1748; 1792, c. 141, R. C. 6. § 6. Saving, always, to the party and parties, whose lands shall be extended, his and their heirs, executors and assigns, his and their remedy for contribution against such person and persons, whose lands are or shall be omitted out of such extent, from time to time. Ibid. (a) 7. § 7. Provided nevertheless, That this act, or any thing therein contained, shall not be construed to give any extent or contribution against any heir or devisee within the age of twenty-one years, during such minority of such heir or devisee, for or in respect of any lands to such heir or devisee descended or devised, farther or otherwise, than might have been made before the making of this act. Ibid. 8. § 8. If any person, being in prison charged in execution, shall happen to die in execution, the party or parties, at whose suit, or to whom such person shall stand charged in execution, for any debt or damages recovered, his or their executors or administrators, may, after the death of the person so dying in execution, lawfully sue forth and have new execution against the lands and tenements, goods and chattels, or any of them, of the person so deceased. 21 Jac. 1, c. 24; 1726; 1748; 1792, c. 141, R. C. 9. § 9. Provided always, That this act shall not extend to give liberty to any person or persons, their executors or administrators, at whose suit any such party shall be and die in execution to have or to 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 or judgments, be by him sold bona fide for the payment of any of his creditors, at whose suit he shall be in execution,(j) and the money paid, or secured to be paid, to any fa. the lien of the judgment continues. United States v. Morrison et al. 4 Peters's R. 124; Fox v. Rootes et al., 4 Leigh, 429, in note. (4) As to issuing writs in different counties, see 2 Tidd, 912, 1 Archb. 216. Hammond et al. v. Mather et al., 2 Cowen, 456. (a) A judgment is obtained against a debtor, and then the debtor aliens his lands to divers alienees by divers conveyances: Held, all the debtor's lands, in the hands of his several alienees, are alike liable to the judgment creditor, and the lands in the hands of the several alienees must contribute pro rata to satisfy the judgment. Beverley v. Brooke, &c. 2 Leigh, 425; but see Conrad v. Harrison et al. 3 Leigh, 532; Gill v. Lyon, 1 Johns. Ch. R. 447; Clowes v. Dickenson, 5 Johns. Ch. R. 235. (j) A debtor may prefer one bona fide creditor to another; therefore, a sale of a tract of land by a debtor charged in execution, for the benefit of a bona fide creditor, and adequate consideration, and without any secret trust for the benefit of the debtor, will be supported, though the favoured creditor be not the one at whose suit the debtor is in custody. Bullock v. Irvine's adm'r, 4 Munf. 450, [but see post. No. 10.] -see For the general doctrine of the right of a debtor to prefer one creditor to another— Chamberlayne et al. v. Temple, 2 Rand. 394; Holbird v. Anderson et al. 5 T. R. Act of February 25, 1819-January 1, 1820. R. C. ch. 134. such creditors, with their privity, in discharge of his or their debts, or some part thereof. Ibid. 10. § 10. Every sale, conveyance and transfer of any lands or tenements, made by any person charged in execution, for any debt or damages, shall be absolutely null and void, as to the creditor or creditors at whose suit he is so charged in execution; unless such sale, transfer or conveyance, be absolute and bona fide, and be made for the payment of the debt and damages due to such creditor or creditors, and the proceeds of such sale, conveyance or transfer, be paid, or be secured to be paid within a reasonable time, to such creditor or creditors all executions of capias ad satisfaciendum, levied after the commencement of this act, shall bind the real estate of the defendant, from the time when they shall be levied. (1) Rev. 1819. [Every writ of capias ad satisfaciendum shall bind the property of the goods of the party, against whom the same is sued forth, from the time that such writ shall be levied.(2) 2, 1821, c. 34, § 4.] Mar. 11. § 12. Where judgment shall be obtained in any court of record within this commonwealth, for any debt or damages, and the person against whom such judgment shall be obtained, shall remove himself or his effects,(k) or shall reside out of the limits of the jurisdiction of such court, it shall be lawful for the clerk of the court where judgment was given, at the request of the party for whom the same was rendered, to issue a writ of fieri facias or capias ad satisfaciendum, or any other legal or proper writ of execution, or attach235; Nunn et al. v. Wilsmore, 8 T. R. 521; Wilt v. Franklin, 1 Binney, 502; Pickstock v. Lyster, 3 Mau. & Selw. 371; Brown et al. v. Minturn et al. 2 Gallison, 557; Hendricks v. Robinson et al. 2 Johns. Ch. R. 283, 306-7; Nicoll v. Mumford, 4 Johns. Ch. R. 522, 529; Marbury v. Brooks, 7 Wheat. 556; Austin et al. v. Bell, 20 Johns. R. 442; Brookes v. Marbury, 11 Wheat. 78, (Feb. T. 1826;) Mackie et al. v. Cairns et al. 1 Hopk. Ch. R. 373; Wintringham v. Lafoy, 7 Cowen, 735; Halsey et al. v. Whitney et al. 4 Mason, 206, 232; Pearpoint et al. v. Graham, 4 Wash. C. C. R. 232; Grover v. Wakeman, 11 Wend. 187, 228; 4 Paige, 23, S. C.; Anderson & Wilkins v. Tompkins et al. 1 Brock. R. 456; Skipwith's ex'r v. Cunningham et al. 8 Leigh, 271; M'Cullough et al. v. Sommerville, Ib. 415. (1) H. obtained judgment against J. and sued out a ca. sa. on which J. was taken in execution; whilst J. was in custody, the commonwealth obtained judgment against him, and sued out a fi. fa. under which J.'s lands were sold. After these proceedings, J. took the oath of insolvency, and was discharged out of custody under the ca. sa. of H. Held, that by virtue of this act (§ 10), the ca. sa. of H. took precedence of the commonwealth's judgment. Jackson v. Heiskell, 1 Leigh, 257. But see Foreman v. Loyd et al. 2 Leigh, 287, in which it was held, that where several creditors recover judgments against N. and sue out writs of ca. sa. on which he is taken in execution; then F. recovers judgments against the same debtor, and sues out an elegit, on which N.'s lands are extended, and a moiety delivered to F. And then N. A. recovers a judgment against B. at Au- (k) See Brydie v. Langham, 2 Wash. 72. This section was am. at rev. 1819, by inserting the words "in any court of record" in lieu of "county or other inferior court," as in former laws. And by inserting "or" instead of and his effects (which was the word in the act of 1748), by the act of 1793. Act of February 25, 1819-January 1, 1820. R. C. ch. 134. ment for the non-performance of a decree in chancery, (as the case may require,) in the form and under the teste herein before prescribed, and to direct the same to the sheriff of any county, or serjeant of any corporation within this commonwealth, where the defendant or debtor, or his goods shall be found; which said sheriff or other officer to whom the same shall be directed, is hereby empowered and required to serve and execute the same, and shall make return thereof to the court where the judgment was given, in the manner herein before prescribed and directed. May 1726, c. 3, § 20, 21, 4 Stat. Larg. 161-2; Oct. 1748; Feb. 1772, c. 5, 8 Stat. Larg. 516; Dec. 1793, c. 151, R. C. 12. § 54. Where any execution shall be delivered to the sheriff of any other county, than that where any creditor resides, such creditor shall name some person, in the county where the execution is to be levied, to be his, her or their agent,* for the particular purpose of receiving the money on such execution, and for giving to, and receiving from the sheriff, any notices which may be necessary relating thereto; and payments made, and notices given to such agent, shall be as effectual as if made or given to the creditor: And, if any creditor shall fail to appoint such agent, no judgment shall be entered against the sheriff for non-payment of the money and tobacco mentioned in such execution, unless a demand thereof shall have been first made of such sheriff, in his county, by the creditor, or some other person having a written order from him: Nor, in case of failure in appointing such agent, shall the sheriff or prisoner be obliged to give notice, previous to the discharge of such prisoner, either for want of security for his prison fees, or upon his taking the oath of an insolvent debtor; but such prisoner shall be discharged, in those cases respectively, without any notice to be given to the creditor so failing. Oct. 1765, c. 22, § 10, 8 Stat. Larg. 122; Nov. 1769, c. 3, § 13, 8 Stat. Larg. 331; 1793, c. 151, R. C. 13. § 13. No writ of fieri facias, or other writ of execution, shall bind the property of the goods, against which such writ is sued forth, but from the time that such writ shall be delivered to the sheriff, under sheriff, coroner, or other officer to be executed;(1) and, for the better manifestation of the said time, such sheriff, coroner, or other officer, his deputy or agent, shall, upon the receipt of any such writ, without fee for * Where an execution is delivered to the sheriff of a county other than that in which the creditor resides, and the creditor employs an attorney at law, practising in the sheriff's county, to collect the money, with out, however, giving the attorney a written order, and then the attorney makes a demand of the money from the sheriff, such demand, if no objection be made at the time to the authority of the attorney to receive the money, is, notwithstanding the statute, 1 R. C. c. 134, § 54, a sufficient demand to justify a judgment against the sheriff. Chapman v. Cheris, 9 Leigh, 297. (1) Although the property in the goods is bound by this writ, as against the defendant, yet it is not divested out of him, till execution executed. Cabell, J. in Lusk v. Ramsay, 3 Munf. 431; and see Lowthal v. Tonkins, 2 Eq. Cas. Abr. 381, per lord Hardwicke; Payne v. Drewe, 4 East, 523, 538-9, 540-1, and Hotchkiss et al. v. M'Vickar, 12 Johns. R. 403; Hendricks v. Robinson, 2 Johns. Ch. R. 312. Therefore, if A. recover judgment and sue out a fi. fa. against X. and deliver the doing the same, endorse upon the back writ to the sheriff, and B. afterwards delivers a fi. fa. to the serjeant against X. whilst A.'s execution is in full life-if the serjeant executes his writ on the property before the sheriff actually levies, A.'s execution will be postponed to B.'s, though A.'s was first delivered. See the case just cited from 4 East, and the principle stated by lord Ellenborough, C. J. And see Marsh v. Lawrence, 4 Cowen's Rep. 461; and see Berry v. Smith, 3 Wash. Circuit Court R. 60, as to priority of executions; and how lost by suspensory orders to officers, &c.; and Chister's adm'r v. Mason, 7 Leigh, 244, 256. The goods of the debtor are bound by the delivery of the execution to the sheriff, and the creditor in the execution acquires a lien of which he cannot be deprived by the act of the debtor. Lambert et al. v. Paulding, 18 Johns. R. 311. They are bound whether they are actually levied on or not, and a subsequent sale of them by the debtor is void. Beals v. Allen, 18 Johns. R. 363; see Pegram v. May, 9 Leigh, 176. Robertson, executor of Cole, recovers Act of February 25, 1819-January 1, 1820. R. C. ch. 134. thereof the day of the month and year when he received the same; and, if two or more writs shall be delivered against the same person in the same day, that which was first delivered shall be first satisfied. If any sheriff, coroner or other officer, to whom any execution shall be delivered, shall fail or neglect to endorse thereon the day of the month and year when he received the same, every such person, for every such failure, shall be liable, on a motion to be made before the court from whence the execution issued, to a penalty not exceeding fifteen per centum upon the amount of the said execution, if it be for money or tobacco, and if it be for a specific thing, one hundred dollars, to the use of the party injured, upon giving ten days previous notice of such motion; and, shall moreover be liable to the action of the party grieved, for all damages arising from such failure. 29 Car. 2, c. 3; May 1726, c. 3, 4 Stat. Larg. 159; Oct. 1748, c. 12; Dec. 1793, c. 141, R. C. 14. § 14. All arms, ammunition and equipments of the militia, shall be exempted from executions and distress at all times. Apr. 1684, c. 4, 3 Stat. Larg. 13; Jan. 28, 1804, c. 36, ed. 1808. See act Mar. 30-Aug. 1, 1837, Ses. Acts 1836-7, c. 69, p. 46, exempting certain property from execution; inserted ante, same tit. No. 1, note ‡. 15. § 21. No sheriff or other officer, to whom any writ of fieri facias shall be directed, shall take in execution any slave or slaves, unless the debt and costs mentioned in such fieri facias shall amount to the sum of thirty-three dollars, or two thousand pounds of tobacco: Provided, There be shewn to such sheriff or officer, by the defendant, or any other person, sufficient other goods or chattels of such defendant, within the bailiwick of such sheriff or officer, upon which he may levy the debt and costs mentioned in such fieri facias. Oct. 1748; Dec. 1793, c. 151, R. C. 16. § 15. On all executions, which have heretofore issued, or shall hereafter be issued, the sheriff or other officer, having published notice of the time and place of sale, at the door of the courthouse of his county on some court day, and at some public place near the residence of the debtor, at least ten days before such sale, shall proceed to sell, by auction, the goods or chattels so taken, or so much thereof as shall be sufficient to satisfy the judgment or de cree, for the best price that can be got for the same. Ibid. Act of February 24-April 1, 1820, ch. 19. 17. § 2. All sales of slaves, mules and work-oxen, and horses, taken under execution or other legal process, shall hereafter be made at the courthouse of the county or corporation where the same may be levied, on the first day of the usual term of the court of such county or corporation, next succeeding that on which the same may be advertised; [between the hours of twelve judgment against Claiborne, and sues out execution thereon; before the execution is delivered to the sheriff, Robertson dies; the execution being then delivered to the sheriff, he levies it on the property of the defendant, and takes a forthcoming bond pay. able to Robertson executor of Cole: Held, the execution was properly levied, though Robertson was dead before it was delivered, and the forthcoming bond property taken to Robertson as executor and belonged to Cole's estate, and the representative of which entitled to the motion and award of execution thereon, and not the representative of Robertson. Turnbull ex'r v. Claiborne, 3 Leigh, 392. At common law, the goods of the defen dant were bound from the teste of the writ. To prevent the abuses of this rule, which operated injuriously to creditors and purchasers, the act of Charles was introduced. But the common law as respects the defendant himself, was not changed thereby; therefore, if the writ be tested before the death of the defendant, though it be not delivered to the officer until after that event, he may proceed to execute it on the goods of the defendant, in the hands of his executor or administrator, without a scire facias. See Waghorne v. Langmead, 1 Bos. & Pull. 571, 573, note (a); Bragner v. Langmead, 7 T. R. 20; Horton v. Ruesby, Comb. 33, 2 Show. 473; Center v. Billinghurst, 1 Cowen, 33. Act of February 24-April 1, 1820, ch. 19. o'clock and four o'clock in the afternoon of the same day; Mar. 3, 1821, c. 35,]† Act of February 25, 1819-January 1, 1820. R. C. ch. 134. 18. 22. Where any slave or slaves shall be taken in execution and sold, the names of such slaves shall be certified on the back of such execution, (m) and returned to and recorded among the records of the court from which such execution shall issue. Oct. 1765, c. 22, § 7, 8 Stat. Larg. 121; Dec. 1793, c. 151, R. C. 19. § 16. If the owner of such goods and chattels, [ante, No. 16,] shall give sufficient security to such sheriff or officer, to have the same goods and chattels forthcoming at the day of sale, it shall be lawful(2) for the sheriff or other officer to take bond from such debtor and securities,(1) payable to the creditor,(n) reciting the service of such execution, and the amount of money or tobacco due thereon, (o) and with condition to have the goods or chattels When goods have been taken in execution under a fi. fa. a direction given by the creditor to the sheriff to restore the goods to the possession of the debtor is fraudulent, and destroys the lien of the execution on the goods; but a mere order to postpone the sale without collusion, does not affect the lien of the execution. Fisher v. Vanmeter, 9 Leigh, 18. A sheriff having levied a fi. fa. on goods of the debtor, receives an order to postpone the sale from an authorized person, and postpones the sale accordingly; and the sheriff relies on the acquiescence of the plaintiff in the order, to discharge him from liability for conforming with it: Held, it is incumbent on him to prove such acquies cence, and the time of it; for if it occurred after sale day of the execution, it would be of little weight, since then all the mischief had been done. S. C. A deputy sheriff having levied a fi. fa. on the goods of the debtor, receives an order from the creditor to postpone the sale for two months, holding the property subject to the sheriff's control to satisfy the debt; and the deputy sheriff postpones the sale, but instead of holding the property restores it to the debtor, whereby the lien of the execution is destroyed and the debt ultimately lost: Held, this is official misconduct in the deputy, for which the sheriff and ↑ The crot of 22 1⁄4ch M542 requins his sureties are liable in an action on his of ficial bond. S. C. (m) The names of slaves taken in execution should be endorsed, to prevent purcha sers being deceived. Eckhols v. Graham, 1 Call, 492. Though the omission of the name of a slave, on whom execution was levied, in the sheriff's return, will not vitiate a judgment on a forthcoming bond, in which the slave is mentioned as one of those on whom such execution was levied. Dix v. Evans, 3 Munf. 308. (2) If the sheriff improperly refuse a forthcoming bond, when he should have taken it, a fair purchaser at the sheriff's sale, without knowledge of any improper conduct on the part of the sheriff, acquires a valid title to the property. The remedy of the party injured is by action of law, for damages against the sheriff. Hamilton v. Shrewsbury, 4 Rand. 427. (1) If a forthcoming bond be taken from the defendant alone, without surety, the plaintiff may move on it against him, under this section. Washington v. Smith, 3 Call, 13. (n) A forthcoming bond should be made payable to the creditor, and not to the sheriff; (0) and the amount of the execution should be recited therein. Downman v. Chinn, 2 Wash. 190. M. and M. recovered judgment and sued out a fi. facias, and endorsed thereupon, that it was for the benefit aşdı |