Act of March 13, 1840, ch. 53, p. 46.

by attorney may be willing to take a judgment or decree for: and every judg ment so confessed shall be entered of record among the office judgments of the court; and every such decree shall be entered in the proper order-book, after the orders of the previous term; such judgment or decree shall be final,‡ and shall have the same force and effect as judgments or decrees rendered in open court, and executions may be sued out thereupon in the same manner as in other cases. If the defendant shall desire to take the oath of insolvency in order to discharge himself from custody in any such suit, or under any such judgment or decree, it shall be lawful for him to do so, in the same manner as is, or may be prescribed by law in other cases; but if the defendant, being in custody, shall give to the plaintiff, or in case he shall reside out of the county or corporation in which the suit may be brought, to his attorney employed therein, notice in writing ten days previously, of the time at which he means to make such confession, he shall be discharged from custody, unless the plaintiff or his attorney shall in person, or by an order in writing, pray him in custody; all such proceedings shall be entered of record, and shall be attested by the clerk or deputy clerk before whom the judgment or decree shall be confessed; and all orders, notices and other papers relating thereto, shall be duly filed. Provided, That every judgment so entered may be corrected by writ of error coram nobis, and every decree by bill of review.t

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

2. 32. If any sheriff or other officer shall fail to make the returns hereby required, or any of them, within thirty days after such schedule is rendered, and oath taken, he shall be fined, at the motion of the plaintiff in each of the said executions, in the same manner and to the same extent, as for a failure to return such execution. Rev. 1819, from 1813, c. 26. [See tit. EXECUTIONS, No. 32.]

3. § 33. After delivering in such schedule, and taking such oath, such prisoner shall be discharged by wrrrant (b) from such court, or from two justices, (as the case may be,) which warrant shall be sufficient to indemnify such sheriff or other officer, against any escape or escapes, action or actions whatsoever, which shall or may be brought or prosecuted against him or them by reason thereof. And if any action shall be commenced against any sheriff or officer, for performing his duty in pursuance of this act, he may plead the general issue, and give this act in evidence: Provided always, That notwithstanding such discharge, it shall be lawful for any creditor, or creditors, by judgment at any time afterwards, to sue out a writ of scire facias, (c) to have

See the remarks of Tucker, P. on the effect of a confession, &c., by one jointly sued. Early v. Clarkson's adm'r, 7 Leigh, 92.

By this act, March 13, 1840, § 4, the section to be found in the 2d vol. R. C. app. VI. c. 1, p. 585, is repealed, and is therefore omitted, and the section herein inserted is enacted in its stead.

(b) Whether this discharge be granted by the court sitting in its ordinary character for the transaction of judicial business, or by two magistrates, who are constituted by law an extraordinary court for this particular purpose, it is of equal validity. In either case, the judgment of discharge is the judgment of a court, and, as such, is of complete obligation. It will justify the sheriff, and it will satisfy a prison-bounds bond, though

the discharge be obtained by the fraud of the debtor. Simms & Wise v. Slacum, 3 Cranch, 300-306, Johnson, J., diss. 309. This case was revised and sanctioned, in Ammidon v. Smith et al. 1 Wheat. 447. But if the surety in the bond combine with the debtor in the fraud, the bond will not be satisfied. Ibid.

The surety in the bond is not a competent person to sit as a magistrate in the discharge of the debtor; and a discharge by a tribunal thus constituted is wholly void. Slacum v. Simms et al. 5 Cranch, 363.

(c) A writ of scire facias need not set forth what goods, lands, &c., have been acquired by the defendant, since the date of the judgment. And it is not a good plea to such writ, that the defendant had transferred, conveyed, &c., to the sheriff, goods

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

execution against any lands or tenements, goods or chattels, which such insolvent person shall thereafter acquire or be possessed of. But, no person delivering in such schedule, and having taken the said oath, shall again be imprisoned on account of any judgment which shall have been obtained against him previous to the time of taking such oath; unless by virtue of a capias ad satisfaciendum, directed to issue by the court in which the said judgment shall have been rendered. And it shall, moreover, be lawful for the court, from which any execution shall issue, under which such oath of insolvency shall be taken by any debtor, on motion to award execution against the goods and chattels by him or her acquired after taking such oath: Provided, That the defendant shall have ten days previous notice of such motion. 1748, c. 12, 5 Stat. Larg. 539; 1769,(1) c. 3, 8 Stat. Larg. 329; 1793, c. 151, R. C.; Feb. 15-June 1, 1813, c. 26. [The discharge of any debtor from custody, either upon his taking the oath of insolvency, or under the provisions of law concerning jail fees, shall not prevent the creditor or creditors, whose debtor or debtors have been, or shall be, discharged from custody, from suing out writs of fieri facias upon the same judgment, without any notice to the debtor, or order of court previously obtained for that purpose. And the commonwealth, in like manner, with other parties, may sue or obtain either writs of capias ad satisfaciendum or of fieri facias, against those who have been discharged as insolvent: Provided, That such writs of fieri facias shall affect only such estate or rights as the party was possessed of or entitled to at the time of his discharge. Act of Feb. 26, 1828, Ses. Acts 1827-8, c. 32, § 3, p. 25; Sup. R. C. c. 216, § 3, p. 273.]

4. § 34. All the estate which shall be contained in such schedule, and any other estate which may be discovered to belong to the prisoner, for such interest therein as such prisoner hath, and may lawfully depart withal, shall be vested in the sheriff of the county wherein such lands, tenements, goods and chattels shall lie or be found; [see ante, No. 1,] and such sheriff is hereby authorized, empowered and required, within sixty days after the taking the said oath, ten days previous notice of the time and place of sale being given, to sell (3) and convey the same to any person or persons whatsoever, for the best price that can be got for the same; and the money arising from such sale shall be, by such sheriff or officer, paid to the creditor or creditors, at whose suit such prisoner or prisoners shall be imprisoned; saving to every such prisoner, his or her necessary apparel and utensils of trade. (d) And if any sheand chattels, lands, &c., according to this act, to a greater value, &c., and that no proceedings had been had, under said act, against the said lands. Nor is it a good plea, that defendant had transferred, in like manner, various debts, &c., and that proceedings prescribed by this act, to recover such debts, had not been had. Lang v. Lewis's adm'r, 1 Randolph, 277.

(1) See Whitmore v. Adams, 2 Cowen, 626. (3) It seems that a sale by the sheriff at auction, of an insolvent debtor's interest in real estate, under this act, is within the stat. of frauds. Brent v. Green, 6 Leigh, 16. In such sale made by a deputy sheriff, he is the agent both for the vendor and purchaser; and his setting down the name of the purchaser and the price on the schedule of the insolvent's effects, by which he makes the sale, is a sufficient memorandum in writing, according to the requisition of the act of frauds. And in an action by the high sheriff

against the purchaser, to recover the purchase money of the lands so sold by the deputy, the deputy is a competent witness to prove the facts. Brent v. Green, 6 Leigh, 16.

(d) See act exempting a certain portion of the property of poor debtors from execution and other liabilities, March 30-1st August 1837, c. 69, § 3, Ses. Acts; also ante, tit. EXECUTIONS, No. 1, note preceding note (b).

By the act of October 1705, c. 37, 3 Stat. Larg. 388, the prisoner had to swear that he had no estate left either real or personal, save only one suit of clothes, not exceeding the value of fifty shillings. His creditors were authorized to take out new executions, but they could not take from the debtor "his or her wearing apparel, bedding for his or her family, and tools necessary for his or her trade or occupation."

The act of May 1726, c. 3, § 31, 4 Stat. Larg. 166, saves to such prisoner, “his or

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

riff or other officer shall fail to pay the money arising from such sale according to law, he shall be liable to the same penalty, to be recovered in the same manner, and by the same persons, as if the said money had been levied by a fieri facias. 1748, c. 12; 1769, c. 8; 1793, c. 151, R. C. [Whenever hereafter any sheriff, serjeant or other officer, shall make sale of the effects, which shall come to his hands, of any insolvent debtor, such sheriff, serjeant, or other officer shall, within sixty days thereafter, make a return to the office of the clerk of the court, in which the judgment was rendered, stating the amount made by such sale, specifying in such return the property sold, and the price of each article sold; which return shall be recorded by the clerk, and shall have the same force and effect as returns made on writs of fieri facias. And if such sheriff, serjeant or other officer, shall fail to make such return as is herein before directed, he shall be subject to the same fine as he might or would be subject to, for not returning a writ of fieri facias; to be recovered in the manner prescribed by law, in cases for failing to return writs of fieri facias. Act of Jan. 28, 1830, Ses. Acts 1829-30, c. 15, p. 22; Sup. R. C. c. 214, p. 272.] See tit. EXECUTIONS, No. 33.

5. § 35. When any insolvent debtor shall be discharged pursuant to this act, and the schedule subscribed and delivered in by such prisoner shall contain articles of money or tobacco, due to such prisoner, or goods, chattels or estates, belonging to him and in the possession of any other, in that case, the clerk of the court, with whom such schedule is directed to remain, may, at the instance of the creditor, issue a summons against each of the persons named as debtors, to have possession of any goods, chattels or estates, of the property of the prisoner, reciting the sum of money or the quantity of tobacco, he or she is charged with, or the particular goods, chattels or estates said to be in his possession, and requiring him or her to appear at the next court, and to declare on oath, whether the said money or tobacco, or any part thereof, be really due to such prisoner, or whether such goods, chattels or estate be really in his or her possession, and are the property of such prisoner; and shall moreover endorse thereon, and on the subsequent process, at whose instance the same was issued. And all officers' fees in such prosecution shall be charged to such creditor. And if the person so summoned shall fail to attend, according to such summons, or to shew good cause for his non-attendance, it shall be lawful for the court to enter judgment against every such person, for the money, tobacco, goods, chattels or estates, in such schedule mentioned, together with costs of suit, a lawyer's fee excepted; and, if any such person so summoned shall appear and be sworn, judgment shall be entered for so much of the money, tobacco, goods, chattels or estates, as he or she shall acknowledge to be due, or to be of the property of such prisoner, and in his possession, with costs as aforesaid, [whenever judgment shall be rendered against any person, named as a debtor, in the schedule, of an insolvent for the money or goods therein mentioned, or any part thereof, either by default or upon confession, the court may, in its discretion, allow costs to the creditor, (except an attorney's fee,) or enter judgment for the money or goods, without costs, as in the opinion of such court the justice of the case may require, Act of Feb. 12, 1834, Ses. Acts 1833-4, c. 66, § 2, p. 77,] which judgment shall be entered in the name of the sheriff, who may thereupon proceed to levy the executions, as in other cases, and to dispose of the money, tobacco, goods, chattels or estates so recovered, in the same manner as the estate contained in the schedule is hereby directed to be disposed of. 1769, c. 3,8 Stat. Larg. 330; 1793, c. 151, R. C.; 1813, c. 26.

her necessary apparel and utensils of trade," as in the text. Tis believed that this saving

has not received a judicial construction. See Buckingham v. Billings, 13 Mass. R. 82.

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

6. § 36. Provided always, That where any such garnishee shall not acknowledge the whole money or tobacco to be due, or all the goods, chattels or estates mentioned in the schedule, to be of the property of the prisoner, and in his possession, the sheriff or such prisoner, at any time after, unless barred by any of the acts limiting the time of the commencement of actions, shall be at liberty to claim the residue by legal process; and the former judgment as to such garnishee, shall be no further bar to such process than for so much money or tobacco, or such goods, chattels and estates, as the garnishee is thereby ordered to pay or deliver. Ibid.

7. § 37. If any garnishee shall, at the time of executing such summons, tender to the officer executing the same, the money, goods or chattels mentioned therein, or any part thereof, it shall be the duty of such officer to receive the same, and give a receipt therefor; and any goods and chattels, thus received, shall be sold by such officer in the same manner as goods and chattels taken in execution: Provided always, That where all the money, goods or chattels mentioned in such summons, shall not be paid or delivered to such officer as aforesaid, like proceedings may be had for the residue, as in cases where no part is paid or delivered. Feb.-June 1813, c. 26.

8. § 38. If any sheriff or other officer shall receive any money, goods or chattels in pursuance of the above section, and shall fail to return the summons, or make a false return thereon, or shall fail to pay the money by him received, he shall be liable to the same recovery as for like delinquency in the case of an execution. [See tit. ExXECUTIONS, No. 33.] And the court, before whom such motion may be made, shall estimate the value of any goods or chattels named in such summons, and assess the fine accordingly. Ibid.

9. 39. If the garnishee shall pay the money, or so much thereof as may be due, or shall deliver the goods and chattels, in his or her hands, to the sheriff or other officer, at the time of executing the summons, such garnishee shall not be liable to costs; but the legal costs, together with a commission of five per centum to the officer collecting the same, shall be paid out of such insolvent debtor's estate. Ibid.

10. § 40. Any of the creditors may proceed against the garnishee, or garnishees, or either of them, but he shall thereby acquire no preference to the money or other thing sued for' except that, out of the subject recovered, it shall be the duty of the sheriff, in whose name the claim is prosecuted, to pay to him his costs expended in the prosecution. Alt. from Ibid.

11. 41. Every sheriff shall be allowed to retain, out of the effects of such insolvent debtor, all reasonable expenses in recovering such money, tobacco, goods, chattels and estates as aforesaid, including such a fee to a lawyer, for the proceeding against the garnishee, as shall be judged reasonable by the court; and if such effects be not sufficient, he shall be reimbursed such expenses, by such creditor as would have been entitled to receive the thing sued for; or, if there be more than one so entitled, then by such creditors in proportion to the debts due them. From 1769, c. 3, 8 Stat. Larg. 331; 1793, c. 151, R. C.

12. § 44. Every person, on whom any fine or amercement has been, or hereafter shall be imposed by the judgment of any court, and who by such judgment, is directed to stand committed until the fine or amercement is paid, or who is or shall be in custody by virtue of any capias pro fine, or execution on behalf of the commonwealth, may take the oath of insolvency in the same manner as is now directed by law in the case of insolvent debtors, and shall thereupon be discharged out of custody: Provided nevertheless, That nothing in this act contained, shall be so construed as to com

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

prehend cases, when, by the judgment of any court, a certain period of imprisonment is imposed as a punishment; but, in every such case, the party shall remain in custody, until such period is expired, or until he or she shall be otherwise discharged by due course of law. Dec. 28, 1803, c. 24, ed. 1808.(e)

Act of February 24, 1819-January 1, 1820. R. C. ch. 102.

1. § 1. No person(2) shall, upon any contract, take, directly or indirectly, for loan of any money, wares or merchandize, or other commodity, above the value of six dollars for the forbearance of one hundred dollars for a year, and after that rate for a greater or lesser sum, or for a longer or shorter time;(1)