Act of February 25, 1819-January 1, 1820. R. C. ch. 134.

lawful for the creditor, (gg) at whose suit such writ of fieri facias, venditioni exponas, capias ad satisfaciendum, or attachment, shall issue, upon a motion made in the next succeeding(hh) general court, or other court from whence such writ shall issue, to demand judgment against such sheriff, under-sheriff(1) or other officer, or the 'securities of either of them, or their legal representatives jointly,'(2) for the money or tobacco mentioned in such writ, or so much as shall be returned levied on such writs of fieri facias, or venditioni exponas, with interest thereon, at the rate of fifteen per centum per annum, from the return day of the execution, until the judgment shall be discharged; and such court(ii) is hereby authorized and required to give judgment accordingly, and to award execution thereon: Provided, such sheriff or officer have ten days previous notice of such motion. (3) From 1753; 1763; 1789; 1793, Feb. 2, 1804, c. 43, and Jan. 10, 1807, c. 97, ed. 1808. Post. tit. SHERIFFS, &c. No. 39.

Act of March 2, 1821, ch. 34.

34. § 2. When any sheriff or other officer, shall fail to pay over to the person or persons entitled, the surplus money in his hands arising from any sale under execution, after satisfying the creditor or creditors, at whose suit such sale was made, and all costs and charges of such sale, such sheriff or other officer and his securities, and the executors and administrators of all and every of them shall be liable to the like judgment, and be recovered in the same manner, at the motion of any party injured, as a recovery may now be had against a sheriff failing to pay money to the party to whom the same is payable, which has been levied under execution. Dec. 1791, c. 3, 13 Stat. Larg. 245.

Act of February 25, 1819-January 1, 1820. R. C. ch. 134.

35. § 49. Where any fine or penalty is inflicted on the executors or administrators of any sheriff, under authority of this act, the same shall be considered to affect only the assets in their hands as executors or administrators. Dec. 24-31, 1794, c. 176, R. C.

(gg) A demand made by his attorney, at law, is sufficient to authorize a motion against the sheriff. Wilson v. Stokes et al. 4 Munf. 455.

Execution sued out in the name of W. endorsed for benefit of E; held, that E. cannot maintain a motion in his own name, against the sheriff for amount levied on the execution, or for his default in service and return of the writ. Tolson v. Elwes, 1 Leigh, 436.

(hh) (ii) 'Tis not necessary that the judg ment against the sheriff should be rendered at the term next succeeding that to which the execution was returned; the words "such court" refer to the court in which the motion has been made, and not to the term to which notice was given. Turner v. Fendall, 1 Cranch, 131. The plaintiff may proceed under this act, though the notice be not to the next succeeding court after the return-day of the execution. Hogue et al. v. Cottle and securities, gen'l ct. Nov. T. 1820. And if the deputy sheriff fail to pay over money, the principal and his securities are liable, under this section. Ibid. 2 Virg. Cas. 229.

(2) For construction of law anterior to revisal, see Royster et al. v. Leake, 2 Munf. 280.

(3) If the notice does not demand the 15 per cent. per annum interest, the court will only give judgment for the money levied, and the costs of the motion. Bradley v. Barnett, Nov. 1794, gen'l court, 1 Rob. Prac. 616.

Where a sheriff makes return on an execution that he has received the money, and makes default in paying the same to the creditor, it is lawful for the creditor, upon a motion under this section, to obtain judgment against the sheriff and such of his sureties as are alive, without including the representatives of a surety who is dead. Chapman v. Chevis, 9 Leigh, 297.

In this case, question upon evidence, whether filling the office of sheriff, and having an execution in his hands, was not the agent of the creditor; and whether the sureties of the sheriff should not be exonerated, on the ground, that the amount of the execution had been received by him in the character of agent. Ibid.

Act of February 25, 1819-January 1, 1820. R. C. ch. 134.

36. § 50. No sheriff or other officer shall return any execution or attachment for not performing a decree in chancery, to the office from whence the same issued, without noting thereon how he hath executed the same, unless by the express directions, in writing, of the plaintiff, his agent or attorney; and, if any sheriff or other officer, having no such directions, shall return such execution or attachment to the office from whence the same issued, without noting or endorsing thereon how he hath executed the same,† such sheriff 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 the like fine, and recoverable in the same manner as a recovery may be had against a sheriff failing to return an execution; [ante, No. 32,] and, moreover, every sheriff and other officer whatsoever, in returning all executions by them levied or settled, and the moneys thereon received, or any part thereof, shall make a statement on every execution of the amount thereof, including their own fees and commissions, and return the same, with the execution, to the office from whence it issued. Ibid. and Jan. 28, 1803, c. 17, ed. 1808.

37. § 51. In all cases where the sheriff or other officer, taking property under execution, shall die before he sells such property, it shall be lawful for the clerk of the court from which such execution issued, and he is hereby required, to issue a venditioni exponas, directed to the sheriff or serjeant of the county or corporation in which the property was taken in execution; and the said sheriff or serjeant shall, under the said venditioni exponas, receive the property from the representatives of the former sheriff or other officer, who are hereby required to deliver such property to the said sheriff, upon his producing to them the venditioni exponas, and executing to them a receipt for the property; and the said sheriff shall proceed to sell such property in the manner prescribed by law in other cases of venditioni exponas. Jan. 19, 1802, c. 295, R. C.

Or

38. § 52. If the representatives of the deceased sheriff shall refuse or neglect to deliver to the sheriff the property so taken under execution by their testator or intestate, upon the sheriff's producing the venditioni exponas; or if, after the expiration of three months from the death of the sheriff, collector or other officer, there be no executor or administrator of the same, he shall return the truth of the case on the said writ; upon which return, the plaintiff, (or, if it be a commonwealth's case, the auditor,) may, at their option, have an execution, by virtue of which the sheriff or other officer may seize the property taken by the former sheriff or other officer, wherever it may be found, and sell the same in manner prescribed by law, under similar executions. the said plaintiff or auditor, as the case may be, may move, in the court from which the original execution issued, against the representatives of the deceased sheriff or other officer; upon which motion judgment shall be entered up against the representatives of the deceased sheriff or other officer, for the amount of the execution, which came to the hands of their testator or intestate, with lawful interest thereon, and the costs of the said motion: Provided always, That the execution issuing on such judgment shall be levied on the estate of the said deceased sheriff or other officer, in the hands of his representatives, who shall, in all cases, have ten days previous notice of the time and place of making such motion. Ibid.

39. § 53. The sheriff, or other officer, discharging the duties aforesaid, shall have the same powers, receive the same fees and commissions, and be liable to the same penalties as in other cases. Ibid.

40. § 55. After obtaining a final decree, for lands, slaves or money, or things

Sheriff may amend his return after return-day, by permission of the court.

See Bullitt's ex'rs v. Winstons, 1 Munf. 269; Rucker v. Harrison, 6 Munf. 181.

Act of February 25, 1819-January 1, 1820. R. C. ch. 134.

of a specific nature, in any court having chancery jurisdiction, the clerk of such court shall, upon the request of the party obtaining such decree, issue any writ of execution, either a fieri facias, capias ad satisfaciendum, habere facias possessionem, or any judicial process which may now issue from any court of common law, according to the nature of the case, for carrying the said decree into effect; which writ shall issue in the name of the commonwealth, and bear teste, and be signed by the clerk of the court; and all process so issued shall be executed and returned to the clerk's office from which the same issued, on the return days thereof, by the officer or officers to whom the same shall be directed, and shall have the same operation, and possess the same force, to all intents and purposes as similar process issued upon judgments at common law. (1) The officer or officers, to whom any such process is directed, shall be subject to the like penalties for misconduct or neglect, and the court shall exercise, in this, and in all cases relating to such process, the same powers, as if the said process had issued upon a judgment obtained at common law. But nothing herein contained shall prohibit any party from proceeding to carry an order or decree in chancery into execution, in any manner of which he might avail himself before the passing of this act. 1788, c. 9, 12 Stat. Larg. 465; 1793, c. 151, R. C.

Jan.

41. § 56. Upon any interlocutory decree of any superior court of chancery, which shall not be appealed from, or upon such interlocutory decree as shall be appealed from and affirmed, such process of execution shall be awarded, as, to such court, or the judge thereof in vacation, shall seem proper. 1798, c. 223, R. C.

42. § 57. The marshal of each superior court of chancery, for the failure to execute and make due return of any decree for sale, or execution, besides being liable to an action of the party aggrieved, for damages, shall be fined at the discretion of the court, from which such decree or execution shall have issued, for the use of the party injured, in any sum not exceeding five per centum per month, to be computed from the time when such execution or decree ought to have been returned, until the time of entering such fine, upon the whole amount of money to be levied, or upon the value of the specific property to be recovered or sold; and the court imposing the fine shall estimate the value of such property. For failure to pay any money, which shall appear by his return to have been received by him in virtue of any execution or decree, 'or for which he shall have made himself liable by his return on such execution or decree,' he shall forfeit and pay, to the person entitled to receive such money, fifteen per centum per annum damages thereon, to be computed from the time when such money ought to be paid, until the time when it shall be paid, and to be recovered, together with the principal sum, by motion on reasonable notice, before the court from which such execution or decree issued: Provided, That the marshal shall not be subject to damages for not paying such money to any person residing out of his district, unless it shall previously have been demanded of him, by such person or his attorney, or by some other person having written authority to make such demand. 'In all cases where a fine is imposed on the marshal for his failing to execute or return an execution or decree, or pay money for which he is liable as above, the securities of such marshal, or his or their legal representatives, shall be liable for the same, to be recovered by motion on reasonable notice, before the court from which such execution or decree issued.' Feb. 26, 1816, c. 8; and see Am. ante, No. 32.

43. § 58. When any execution shall be levied upon the body of a defendant (1) See Skipwith v. Clinch, 3 Call, 86. judgment at law, creates a lien on lands. And a decree in chancery equally with a Scriba v. Deanes et al. 1 Brock. R. 166.

Act of February 25, 1819-January 1, 1820. R. C. ch. 134,

by the marshal, he shall commit him to the jail of the county in defendant may reside, if resident within the district, and if not, jail of the county in which the execution shall have been levied rovuled however, That no execution shall be levied on the body of any defendant in any other district, than that in which he resides, unless an execution against his body shall have been previously issued to that district, and returned non est inventus, or unless such defendant shall have no fixed residence within the commonwealth. At the time of committing such defendant to jail, the marshal shall deliver to the sheriff of the county, or keeper of the jail, a copy of the execution, under which the arrest shall have been made, and shall take from such sheriff or keeper, a receipt for the body of the defendant, which he shall return, together with the execution, to the court from whence it issued. It shall be the duty of such sheriff or keeper, to receive the body of such defendant, and to give a receipt therefor; and, in failure thereof, the sheriff shall be liable to an action for the escape of the defendant, in which the same recovery shall be had, as if the execution had issued from a court of law, in due form directed to such sheriff, had been levied by him upon the defendant, and such defendant had then been voluntarily permitted by him to escape. When any defendant shall have been so committed to jail by the marshal, and a receipt shall have been so taken for his body, he shall be kept, in all respects, by the sheriff of the county, and the keeper of the jail, and be entitled, in all things, to the same immunities and privileges, as if the execution, under which he had been arrested, had been directed to the sheriff of the county and had been executed by him. Ibid.

44. 59. In all other respects, executions levied by a marshal shall be proceeded on, in the same manner as such executions would have been proceeded upon, if directed by law to a sheriff, and levied by him; and forthcoming bonds taken by a marshal shall have the same force and effect, as forthcoming bonds taken by a sheriff. Ibid.

45. § 60. The commission allowed to marshals, upon all moneys received by them in virtue of their office, and upon all forthcoming bonds, shall be the same with that allowed to the sheriffs upon similar receipts and bonds; and their fees shall be regulated by the courts to which they belong, so that they shall, in no case, exceed three times the amount allowed to sheriffs for similar services. Ibid.

Act of February 25, 1819-January 1, 1820. R. C. ch. 128.

46. § 107. An execution, writ or other process, appearing to be duly served in other respects, shall be deemed good, although it be not directed to any sheriff. 1788, c. 76, R. C. See tit. CIVIL SUITS, (JEOFAILS,) ante, No. 8, p. 143.

Act of April 6, 1839, ch. 67.

47. § 1. Hereafter all warrants in civil cases shall be made returnable to some place specified in the warrant within the constable's district wherein the defendant resides: Provided however, That any justice of the peace may, for good cause shewn, verified by the oath of the plaintiff, his agent or attorney, direct it to be returned to any place within the county.

Act of March 19, 1839, ch. 68.

48. § 1. Hereafter, when any execution upon a judgment on a warrant The damages which a creditor sustains the amount of the debt. Perkins et al. v. by the sheriff's suffering a debtor in execu- Giles, governor, 9 Leigh, 397. tion to escape, are not necessarily equal to

Act of March 19, 1839, ch. 68.

shall be levied upon property, which shall be claimed by any person, other than the debtor, it shall be lawful for such person to apply to any justice of the peace of the county or corporation, in which the execution may be levied, for a summons both against the creditor and debtor in such execution, to shew cause why the said property should not be discharged from the execution; and it shall be the duty of the justice to issue such summons, returnable not less than five days thereafter; and if an earlier day shall have been fixed for the sale of the property, he shall also make an order on the summons requiring the postponement of the sale until after the return day aforesaid; and if upon hearing the parties, or such of them as may attend, after being duly summoned, he shall adjudge that the property levied upon belongs to the claimant thereof, and is not liable to the execution levied on the same, he shall make an order directing the officer to restore the said property to the possession of the person from whom it was taken, or to the said claimant as to him shall seem just and proper, otherwise to dismiss the summons: Provided however, That either party may, within five days thereafter, upon giving security as in cases of appeal, from judgments on warrants, take an appeal from whatever order may be so made, to the next term of the court of the county or corporation, whether monthly or quarterly, to be then tried in preference to other civil cases; and the court shall have power to try the right of property without any interpleader or other written pleadings, and for that purpose shall have the same powers, and shall proceed in the same manner in all respects, as is required by law in cases of attachment, where the property attached is claimed by any other person, and the court shall give such judgment respecting the property, the expense of keeping it, and any injury done to it, as may be equitable among the parties: Provided, That where the property in controversy shall not be of the value of twenty dollars, no jury shall be impannelled, but the court shall decide upon the title, and its decision shall be final.

Act of March 6, 1840, ch. 58.

49. § 1. It shall be lawful for justices of the peace, whenever any execution issued upon a judgment on a warrant shall be returned no effects, or shall have any other legal return shewing that the same has not been satisfied, to issue another execution upon such judgment at any time within one year after the date of the judgment and not afterwards; during which period it shall be lawful for any constable to return to the justice who issued the same, any execution which shall be wholly unsatisfied. And if any question about the legality of such execution shall arise, it shall be lawful for the court of the county or corporation in which the judgment may have been obtained, to hear and decide any motion to quash the said execution, in the same manner as if it had issued from the clerk's office thereof, provided ten days notice has been previously given to the adverse party.

The execution book kept by the clerk, is only prima facie evidence, of the truth of the entries made therein. Taylor v. Dundass, 1 Wash. 94.

Every court has a perfect right to watch over the execution of its judgments, and where its process hath been irregularly, or fraudulently executed, to quash it, as being the best and speediest mode of doing justice. Hendricks et al. v. Dundass, 2 Wash. 50-4; Downman v. Chinn, Ibid.

189; Leftwitch et ux. v. Stovall et al. 1 Wash. 303; Moss et al. v. Moss's adm'r, 4 H. & M. 293; U. S. Bank v. Halstead, 10 Wheat. 64.

A

If the proceedings under an execution are wholly void, no title passes by the sale to the purchaser, and the defendant may have redress in an action of detinue. court of equity has no jurisdiction. If the execution is valid, so far as to bind the property, but the sale under it is void, on ac