« PreviousContinue »
about his defence in a certain action, at the suit of the said, &.c. in
covenant or for debt, &c.(as the case may he,) in this behalf exf>e.nd
ed." The form of a writ of elegit—"The.Commonwealth of Keu- Writ of elegiL
tucky, to, &c. greeting: Whereas A. B. at our court, &x. before our
judge or justices, (as the case may be,) held at the court house of
on tire day of , hath recovered against
C. D. the sum of $ , which to the said plaintiff was adjudged,
for his debt or damiges—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 goods and chattels which by the statutes of 'this Commonwealth, are exempted from execution, and also ono g moiety of all his lands and tenements in your bailiwick, to have, and to hold the goods and chatties aforesaid, as his own proper goods, and the said moiety as his freehold to him and his assigns, until he shall have levied the debt and damages aforesaid: Therefore, we command you, that you cause to be delivered, all th#goods and chattels of the said C. D. saving the property so exempted from execution, and also one moiety of all his lands and tenements in your bailiwick, whereof, fie, at the day that this writ shall come to your hands, or at any time afterwards, was seized, by reasonable price and extent, to have-ancTto .hold the said goods and chattels, to him the said A. B. as his own proper goods and chattels, and the said moiety of his freehold, to him and his assigns, until he shall have levied thereof, the debt, damages and costs, aforesaid, and that you (Certify to our said judge or justices, under your seal and the seals of those by whose oath you shall make this extent, how you have executed this writ, the day of at the court house of our said
county, and have thcn'Therc this writ: Witness," &C. \A curias ad
. L' [The part en
gatisfaciemlum—"I ho Commonwealth, &c. greeting, wc command closed in brack
you, that v^i take A. B. late of vour bailiwick, if within the same •whiakenfiom - i • - printed copy, he-he found, and him safely keep, so that you have his body before but is not conoar judge or justices of our court, &.c. the dav of ta'"e^ "? *•
. JDJ enrolled bill.] , to satisfy C. D. the sum of $ , which the said plain
tiff hath recovered against him for debt (or damage?, as the case miy be,) alsj,"&c.as before in the writ offer! facias;] which said writs, so issued, shall be executed by the sheriff or other officer to w:hom the same shall be directed, and shall be returned according to. the substance of the respective forms hereafter mentioned, to-wit: The return of a. fieri facias, "Satisfied;" or "By virtue of this
writ, I have caused to be made, the sum of $ , which, after Fi.fa. execu
deducting my commission thereon, entitles this execution to a cred- ,ed
it of $ ;—, and no more property found of which the residue or
any part thereof can at present be made;" or, "levied by
me on , of the supposed fair value of $ , and on the
day of , at ■ I exposed the same to sale,
but the said property was not sold^for want of bidders;" or "levied w»nt of bidder. Vol. r. 81
Form of returns.
by trie on , of the supposed value of , and A. B.
claimed the said property to be his, and demanded that his claim
. should be inquired into by a jury, which was accordingly summon
Jury summon- ^ „ , , Z.
ed to try the ed, and on the day of , at the house of .
right of proper- enpanneue(| and sworn according to law, who thereupon found, that Form of ver- the said property was the property of the said A. B. and the same diet, 4c. was restored to him, and no estate of the said C. D. found by me, of which the said debt or damages, &c. or any part thereof could be made;" or "the within named A. B. hath no estate within my bailiwick, of which the debtor damages, &c. mentioned in this^writ, Return of tti* or any part thereof can be made." Return of writ of elegit—"In:
tltgit. quisition, indented and taken at , in the county of
on the day of , in the year of our Lord, 16 ,
before me, E. F. sheriff (or coroner,) of the county aforesaid, by virtue of a writ of^elegit to me directed, and to this inquisition an■ nexed, and by the 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. who is named in the writ of inquisition hereto annexed, was at the time this writ came to the hands of the officer to be executed, and at the time of taking this inquisition, is possessed of the goods Schedule and and chattels following, as of his own proper goods, to-wit: (here make out a schedule of the goods, with the value of each item, and the aggregate value,) which 1, the said sheriff, have caused to be delivered to the said C. D. to hold to him as his own proper goods and chattels, in part satisfaction of his debt or damages, &.c. aforesaid, in the said writ mentioned, which, after deducting my commission,
entitles this execution to a credtt of $ ;and further, the said
jurors upon their oaths do say, that the said A. B. at the time the said writ came to the hands of the officer as aforesaid, was seized, and since has acquired of his own demesne, as of fee of *nd in (here name the houses and lands, town lots or other landed estate,} With the appurtenances of the annual nett value of g ,
value of the goods taken
acres of which or thereabout, are a true and equal moiety ol all and singular, the said lands, tenements and hereditaments aforesaid, belonging to the said A. B. in the county aforesaid, which said moiety, I#the said sheriff, on the day and year aforesaid, to the said C. D. in the said writ named at a reasonable extent of the yearly value of $ , have delivered, to hold to him and his assigns, according to law, until he shall have levied the residue of the debt or damages, &c. aforesaid,as the writ aforesaid requires; and further, the said jurors upon their oaths do say, that the said A. B. at the time, fee. aforesaid, had not, nor at the time of taking this inquisition, hath any other or more goods or chattels, lands or tenements,"in the county aforesaid, to the knowledge of the* jurors aforesaid: In testimony whereof, as well, I, the said sheriff (orcoroner,) as the jurors aforesaid, to this inquisition, have severally signed (or caused toie sign
ed) our names, and put our seals, the day, year and place, above mentioned." [Return of a capias ad satisfaciendum—"By virtue of this writ, to me directed, I have taken the within named A. B. and delivered him to the jailer of my counly, agreeably to the tenor and
command of the within writ, on the day of ;" or Not executed
"the within named A. B. is not found within my bailiwick."]
Sec. 2. After obtaining final decree for lands, slaves, money or other specific thing, in any court having chancery jurisdiction, the clerk of the said court, shall, upon the request of the party obtaining such decree or his attorney, issue any writ of execution which would be appropriate, and is allowable upon a judgment of a court of law, according to the nature of the case, for carrying the decree into effect; (.;) which writ shall issue in the same manner as other writs of execution, be returnable within the same time, executed by the sheriff or other proper officer, under the like penalties, and in every thing partake of the nature and effect of like writs issued upon judgments at law, and subject to the same power of the court. But nothing in this act contained, shall prohibit any party from proceeding to carry any order or decree in chancery into execution, in any manner which he might have done if this clause or section had never been enacted.
Sec. 3. When any writ of execution shall issue, and the party at whose suit the same issued, shall afterwards desire to take out another writ of execution, at his own proper costs and charges, the Clerk may issue the same, if the first be not returned and executed: and where upon a ft. fa. the proper officer shall return in effect, that the party defendant hath no goods, or not sufficient to satisfy the said execution, the Clerk shall issue anoiher fi. fa. or other appropriate writ which may be allowed by law, upon the request of the party, plaintiff or his attorney; and where part of the debt shall be levied upon an elegit, or a return thereon o( nihil, a new elegit may issue for the residue, or any other appropriate writ allowed by law; and where one judgment is obtained against several defendants, execution shall, issue thereon, as if it were against one defendant, and not otherwise.
Sec. 4. If a tenant by elegitbe 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 then 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, to have execution for the residue of his debt, or damages and costs, as shall appear to remain unpaid, with interest thereon, and
(} ) The statute which authorizes the issuing sold under a decree, by execution.—Scoll v. Coteof an execution upon decrees in chancery, will man, 5 Man. 75. justify putting a purchaser into possession of land
[In the printed copy, but not in the enrolled bill.]
How executions to on decrees chancery.
A second execution may issue at the plaintiff's cost, if the first is not returnedexecuted
Upon the return of aji.fa. no property, other appropriate writs may issae.
Proceedings in case a tenant by elegit is ovicted.
mav have his writ of fieri facias, or other appropriate writ for
such residue, as though, no execution had been theretofore issued;
and this proceeding may be had, .when any assignee of the original
plaintiff, either immediate or remote, or any representative or other
person, holding under the original party, plaintiff, as tenant, by
digit shall have been evicted.
When lands gEC 5. Where any judgment or recognizance shall be extended,
■■nrnined^out'of the same shall not be avoided or delayed by occasion that any p%rt
the extent, 0f (he lands or tenements extendable, are, or shall be omitted out judgment not to
be void. of 'he extent.
Sec. G. Saving always to the party and parties, whose lands Remedy tor £hnll have been extended, his and their representatives or assignees, «avedbUti°n n'9 or ,ne'r remedy for contribution, against such person or persons as held lands, which arc, or shall-be omitted out of such extent, from time to time.
Sec. 7. Provided, however, That this act, or any thing herein Not to extend contained, shall not be construed to give any extent or contribution, arrainst any heir within the age of twenty-one years, during the minority of such heir, for, or in respect of. any lands, descended to him or her, further or otherwise than might have been made before the passage of this act.
Sec. 8. No writ of fieri facias, or other writ of execution, shall Estate bound bind the estate of the defendant or defendants, but from the time ery^/^he^rit" sucn wr'1 sha" De a'cl'vere<J to the sheriff or other proper officer to be executed, nnd for the better manifestation of said time, such sheriff or other officer, or his deputy, upon the receipt of any such cepiioo to be writ, shall endorse thereon the day of the month, time of day and endorsed there- ycar when the same was received by him; and if two or more writs of execution, in favor of different parties, against the same
First execD- pCrson, shall be delivered to the officer upon tho same-or different tion to be first' , r . - .
satisfied. da3"s, that which came first to his hands shall be first satisfied; (fc)
(t) If several executions issue against the continued after the return day.—Datatl v. Coch
same debtor, tho sheriff is bound to satisfy that ran's Adrn^r. 4 Bibb, 532. execution first, which was first delivered to him. Qitere: If the execution be renewed on the
But as between plaintiffs in execution, a former same day of the return 1—Arberry v. Jfoland,
execution notlevied and returned, does not create 2 /. J. Mar. 423.
a lien, to the exclusion* of a second creditor who 4. That an execution is in the hands of tho delivers his execution to the sheriff when he had sheriff, docs not necessarily make a sale of prono other against the debtor.— Tabb v. Harris, 4 perty by the defendant void. The sheriff may Bibb, 29; Arberry v. Poland, 2 J. J. Mar. 422. still levy on it; because there is a lien for that
2. A ca. la. issued against a party creates no purpose; but if the execution be returned or relien on lands; so a Jieri facias issued, but sus- plevied, nothing can be said against the sale, unpended by an injunction.—Mason's Ex^rs. v. less it were fraudulently made. This lien has Holmes, ie. 4 Bibb, 263. no operation further than to overreach the estate
3. At common law, a Jieri facias had relation during the continuance of the lia%, in the bands to its teste, and bound the goods of the defendant of whomsoever the property may come, for the from that time. But by our statute an execution purpose of satisfying that execution, and cannot does not bind the estate until the delivery to the be transferred from one execution to another.— sheriff. A lien created by an execution is not Harrison v. Wilson, 2 Mar. 551-2.
and where two or more writs against the same person, shall come
to hand at the same time, the sheriff or ofW officer shall proceed „^!'"" seTcral
to levy and sell in virtue of all; and if the proceeds shall not be come 10 hand
adequate to the satisfaction of all, the officer shall apportion the th<! sam,e
n "* rr time, the am'nt
amount made amongst the several executions according to their res- made to be
pective amounts, and credit the same aQcfcrdingly, first deducting aPPortlonedhis commission as in other cases. * t
Sec. 9. If any person being in prison, in virtue of a capias ad Where a par
tisfaciendwn, shall happen to die in execution, the parties at whose cut'ionSon%e*a~
suit, or to whom any person shall stand charged in execution for '"■■< executions any debt or damages, recovered, his or their executors or adminis- jssiie against trators, may (after the death of the person so dying in execution,) nis estate, lawfully sue forth and have execution against the lands, goods and chattels, of the person so deceased: Provided, always, That this act shall not extend to give liberty to any person or persons, their Pr°¥'soexecutors or administrators, at whose suit any such person shall die in execution, to have or take a new execution against the lands, tenements or hereditaments, goods or chattels, of such party dying in execution, which shall at any time after the coming of the original execution, to the hands of the sheriff or other proper officer, have been by such debtor sold bona fide for the payment of any of his creditors, at whose suit he shall have been in execution, and the money paid, or secured to be paid to such creditor with his privity and consent, in discharge of his or their debts, or some part thereof.
Sec. lO-^If the goods taken by the sheriff or other officer, in In what cases
virtue of any execution or any part thereof, shall remain in his *TM?d,t"ml * J r 7 exponas may
hands unsold, he shall make return thereof accordingly, and the issue,
5. As between execution creditors, it is not bona Jide and brought into the county by the the date of the execution, nor of its delivery to purchaser, do not become liable.—Claggett v. the officer, but the date of the levy which gives Force, 1 Dana, 428.
priority of lien. It is the duty of the officer to 7. As soon as the execution comes to the
levy first, the execution which was first delivered hands of the sheriff, the defendant's estate is in
to him; and hence it is his duty to note the date lien for the amount; and if he convey land
of delivery. But this is directory; it does not which is afterwards levied on, and sold under the
affect execution creditors, nor purchasers under execution, the sale by the sheriff has relation
their executions. If the officer fail to levy the back to the time when the execution came to his
first execution, but shall levy another first, he hands, overreaches that made by the defendant,
will be responsible to the creditor to whom he and passes the better title.—Million v. Riley,
shall have done injustice; but the levy of a junior &c. 1 Dana, 3G0.
execution will not be invalidated.—Kilby v. 8. If while an officer has an execution in his
Hoggin, 3 J. J. Mar. 212. hands against a defendant, he exchange horses
6. An execution in the hands of an officer with B., both horses are subject to the execution, gives a lien upon the goods and chattels «f the and B. must look to the defendant for remuneradefendant within the county, which is not lost by tion upon his contract with him.—Orchard v. their temporary removal. But those to which, Williamson, 6 J. J. Mar, 561.
not being in the county, no Han attached, if sold