Pages 331-356
|  Pages 381-401
|
| Pages 331-356
| Pages 381-401
|
| CHAP. V. | ||
| ||
| (Passed December the 13th, 1792.) | ||
| SECT. 1. BE it enacted by the General Assembly, that all persons recovering any debt, damages or costs, by the judgment of any court of record within this Commonwealth, may at their election, prosecute writs of fieri facias, elegit, and capias ad satisfaciendum, within the year, for the taking the goods, lands, or body of the person or persons against whom such judgment is obtained, in manner following: All such writs shall run in the name of the Commonwealth, and bear teste by the clerks of the said courts respectively, shall be returnable to the first day of the next succeeding court, so that there be always at least fifteen days between the teste and return of each of the said writs: Provided, that executions may be issued from the general court returnable to the second term of the said court, following the day of issuing the same: and that executions shall issue to any sheriff or coroner from the clerks of the district courts, and be returnable to the first day thereof. And provided also, that if the plaintiff in any county or other inferior court, shall desire an execution to issue, returnable, at a further day, the clerk shall issue the same accordingly, so as the day of such return be upon a court day within ninety days after the teste thereof, and that the forms of the said several writs shall be as follows, mutatis, mutandis, to wit: | Writs of execution. How to be issued and returned. Fifteen days at least between teste and return. From the general and district courts, when returnable. Forms of the writs. | |
| "A FIERI FACIAS IN DEBT. | ||
| "The Commonwealth of Virginia, to the sheriff of county, greeting: WE command you, that of the goods and chattels of A. B. late in your bailiwick, you cause to be made the sum of , which C. D. lately in our court hath recovered against him for debt; also the sum of , which to the said C. D. in the same court were adjudged for his damages, as well by reason of detaining | Against goods and chattels. Debt. |
| "the said debt, as for his costs in that suit expended, whereof he is convicted, as appears to us of record, and that you have the said before the judges or justices (as the case may be) of our said court the day of , to render to the said C. D. of the debt and damages aforesaid. And have then there this writ. Witness, &c." | |
| The same 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." | Case, assumpsit. |
| 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." | Trespass. |
| If for the defendant say, | |
| "For his costs about his defence in a certain action at the suit of the said," &c. | For the defendant. |
| 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." | Covenant. |
| The form of 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 of all his lands and tenements in your bailiwick, to have and to hold the goods and chattels aforesaid as his own proper goods, and the said moiety as | Agains lands and tenements. |
| "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, or at any time afterwards, 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 you shall make this extent and appraisement, how you execute this writ, the day of And have then there this writ, &c." | |
| A CAPIAS AD SATISFACIENDUM. | |
| "The Commonwealth, &c. greeting: We command you, that you take A. B. late of , if he be found within your bailiwick, and him safely keep, so that you have his body before our judges (or justices) of our court, &c. day of to satisfy C. D. the sum of which the said C. D. hath recovered against him for debt, also, &c." as before. | Against the body. |
| IN CASE, TRESPASS, or COVENANT, as in the FIERI FACIAS. | |
| Which the 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: | Forms of the returns. |
| The return of a FIERI FACIAS. | |
| "By virtue of this writ to me directed, I have caused to be made the within mentioned sum of , of the goods and chattels of the within named A. B. which the said sum of before the judges (or justices) within mentioned, at the day and place within contained, I have ready, as that writ requires." | Fieri facias executed. |
| OR, | |
| "The within named A. B. hath no goods or chattels within my bailiwick, whereof I can make the sum within mentioned." | Where no goods. |
| 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." | Where part is levied. |
| Return of a writ of ELEGIT. | |
| "Inquisition indented, taken at , in the county aforesaid, the day of , 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 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. 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 said writ mentioned; and further 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 demesne, 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 pounds, 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, I the said sheriff, the day aforesaid, to C. D. in the said writ | Elegit executed. |
| "named, at a reasonable extent, have delivered 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; and further 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." | |
| 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." | Capias executed. |
| OR, | |
| "The within named A. B. is not found in my bailiwick." | Not executed. |
| SECT. 2. 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 and charges, the clerk may issue the same, if the first writ be not returned and executed; and where, upon a capias ad satisfaciendum the sheriff shall return that the defendant is not found, 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; 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; and where one judgment is obtained against several | In what manner another execution may be issued, where the first has not been served, or has not been satisfied. |
| defendants, execution thereon shall issue as if it were against one defendant, and not otherwise. | |
| SECT. 3. 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. | Tenant by elegit, if evicted may have a scire facias against his
debtor, and another execution for his debt, &c. |
| SECT. 4. 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. | No extent to be avoided for omission of part of the lands extendible. |
| SECT. 5. 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. | Saving remedy of contribution. |
| SECT. 6. Provided nevertheless, That this act or any thing therein contained, shall not be construed to give any extent or contribution against any heir within the age of twenty-one years, during such minority of such heir, for or in respect of any lands to such heir descended, further or otherwise than might have been made before the making of this act. | Infants lands excepted. |
| SECT. 7. 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 damage 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. | If a debtor dies in prison, creditors may have new executions against his estate. |
| SECT. 8. 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 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 | Debtor may sell his lands for the benefit of his creditors at whose suit he is in execution. |
| sold in bona fide, for the payment of any of his creditors, at whose suit he shall be in execution, and the money paid or secured to be paid to any such creditors, with their privity, in discharge of his or their debts, or some part thereof. | |
| SECT. 9. If any person taken in execution be
delivered be privilege of either house of Assembly, so soon as such privilege ceaseth, he shall
return himself a prisoner in execution, or be liable to an escape.
SECT. 10. Where judgment shall be obtained in any county court or other inferior court of record within this Commonwealth, for any debt or damages, and the person against whom such judgment shall be obtained, shall remove himself and his effects, 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 any writ of fieri facias, or capias ad satisfaciendum, or any other legal or proper writ of execution or attachment 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. |
Persons in execution delivered by privilege of the gen. assembly
to return in execution when that ceaseth. Executions from a county court may be served in any other county. |
| SECT. 11. 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; 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 doing the same, endorse upon the back 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 [This section extended by inflicting a penalty on neglecting to endorse on the writ, by the 11th sect. 3d Chap. Acts of '93.] | Property in goods bound from delivery of execution to the
officer. Time of delivery to be endorsed by the officer. |
| SECT. 12. On all executions hereafter issued, the sheriff or other officer, having published notice of the time and place of sale, at the door of the court house 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 decree, for the best price that can be got for the same. | Goods taken by execution, when and how to be sold. |
| SECT. 13. Provided always, That if the owner of such goods and chattels, shall give sufficient security to such sheriff or officer, to have the same goods and chattels forth-coming at the day of sale, it shall be lawful for the sheriff or officer, to take a bond from such debtor, and securities, payable to the creditor, reciting the service of such execution, and the amount of the money or tobacco, due thereon, and with condition to have the goods or chattels forth-coming at the day of sale, appointed by such sheriff or office, and shall thereupon suffer the said goods and chattels to remain in the possession, and at the risk of the debtor, until that time; and if the owner of such goods and chattels, shall fail to deliver up the same according to the condition of the bond, or pay the money or tobacco, mentioned in the execution, such sheriff or officer shall return the bond to the office of the clerk of the court from whence the execution issued, to be there safely kept, and to have the force of a judgment; and thereupon it shall be lawful for the court, where such bond shall be lodged, upon motion of the person to whom the same is payable, his executors or administrators, to award execution for the money and tobacco therein mentioned, with interest thereon from the date of the bond, 'till payment and costs, provided the obligors, their executors or administrators, or such of them, against whom execution is awarded, have ten days previous notice to such motion; and upon such execution, or on any execution awarded on any bond which shall hereafter be given to replevy an estate taken by a former execution, the sheriff or officer shall not take any security, either to have the goods forth-coming at the day of sale, or for the payment of the money at a future day; but shall levy the same immediately, and keep in his hands the goods and chattels taken thereupon, until he shall have sold sufficient thereof to raise the money and tobacco, mentioned in the execution, or the same be otherwise satisfied. | Officer may accept security for goods until the day of
sale. Proceedings on the bonds where the goods are not delivered. No security to be taken on executions thereon or on replevy bonds. |
| SECT. 14. And for the better direction of such officer, the clerk shall endorse upon any such execution, "that no security of any kind is to be taken." | |
| SECT. 15. If any sheriff or other officer, shall fail to deliver or return any bond taken for the forth-coming of property, by virtue of this act, within sixty days after the date thereof, to the office of the clerk of the court, whence such execution issued, he shall be liable to the same penalty for every month of such failure, to be recovered in the same manner, as is directed by law, against a sheriff or coroner failing to return an execution. | Forth-coming bonds to be returned within 60 days. |
| SECT. 16. When execution shall issue against the estate of any sheriff or under sheriff, or their securities, upon a judgment obtained against such sheriff or under sheriff and securities, for money or tobacco received by such sheriff, or under sheriff, by virtue to any execution or process, levied or executed by him or them, or for any money collected or received by them in any manner as sheriffs; no security for payment of the money or tobacco mentioned in such execution at a future day, or to have the goods forth-coming at the day of sale, shall be taken or received; but the officer taking such estate in execution, shall proceed immediately to the sale thereof, notwithstanding such security shall be tendered: And for the better direction of such officer, the clerk issuing such execution shall endorse thereon, "that no security of any kind is to be taken." In like manner, on all executions which may issue against any collector of the poor rates, his heirs, executors, or administrators, or against any overseer or overseers of the poor, his or their heirs, executors or administrators, on any judgment obtained, or which hereafter may be obtained against him or them, for or on account of any money or tobacco, which have or may hereafter come to his or their hands, levied for the support of the poor, the clerk shall endorse, "no security to be taken." | No security to be taken on executions against sheriffs for money
received by them by virtue of executions, Or on executions against collectors of poor rates, or against overseers of the poor. |
| SECT. 17. 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 shown to such sheriff or officer, by the defendant or other person, sufficient other goods or chattels of such defendant within the bailiwick of such | In what case slaves may not be seized. |
| sheriff or officer, upon which he may levy the debt and costs mentioned in such fieri facias. | |
| SECT. 18. 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, and returned to and recorded among the records of the court, where such execution shall issue. | Names of slaves taken by executions, to be endorsed thereon. |
| SECT. 19. If the goods taken by any sheriff or other officer, or any part thereof shall remain in his hands unsold, he shall make return accordingly, and thereupon the clerk of the court from whence the execution issued, shall and may, and he is hereby required to issue a venditioni exponas to such sheriff or other officer directed, whereupon the like proceedings shall be had, as night and ought to have been had on the first execution; which writ of venditioni exponas shall be in the form following: | When a writ of venditioni exponas shall be issued. |
| "The Commonwealth, &c. greeting: We command you, that you expose to sale, those goods and chattels of A. B. to the value of , which according to our command you have taken, and which remain in your hands unsold, as you have certified to our judges (or justices) of our court, to satisfy C. D. the sum of whereof in our said court he hath recovered execution against the said A. B. by virtue of a judgment in the said court, and that you have, &c." | Form of the writ. |
| SECT. 20. When any sheriff or other officer, shall serve any writ of execution on slaves, horses or any live stock, and the same shall not be immediately replevied or restored to the debtor, it shall and may be lawful for such officers, and they are hereby required to provide sufficient sustenance for the support of such slaves or live stock, until such slaves or stock shall be sold, or otherwise legally discharged from such execution; and upon the return of any execution, the court may and shall, upon the motion of the officer serving the same, settle and adjust what such officer shall be allowed for his expenses incurred by supporting such slaves or stock; and the said officer shall, and may be allowed to retain the same out of the money arising from the sale of the said slaves or stock. | Slaves and live stock taken by execution to be supported by the
officers. Expense thereof to be paid out of the sales. |
| SECT. 21. If any sheriff shall levy an execution on property, and a doubt shall arise whether the right to such property is in the debtor or not, such sheriff shall summon a jury, being freeholders or others qualified to serve as jurors in the district courts, to enquire into the right of property; and if such jury shall find the right of the property to be in the debtor, such finding, shall justify the sheriff in any action brought against him for taking and selling such property, or if the right to the property shall be found in any person other than the debtor, such finding, shall justify the sheriff in delivering up such property; saving to all persons claiming such property, the liberty of asserting their rights thereto, and such inquisition of the jury shall be returned to the court from whence such execution issued. | Jury to be impannelled to try the right to property under
execution, when it is disputed. Finding of the jury not to be conclusive as to the rights of any. |
| SECT. 22. If the goods or other estate taken in execution, cannot be sold for three-fourths of their value at the least, in the opinion of the persons hereafter directed to be appointed for that purpose, it shall and may be lawful, for the debtor or debtors, or any of them, to enter into bond with sufficient securities, to be approved by the persons aforesaid, to pay the money or tobacco for which execution was so served, and all costs, with lawful interest for the same, to such creditor, within twelve months: And on such bond being given, the sheriff or other officer shall restore to such debtor the goods or estate so taken, and when no such bond and security shall be offered by the debtor, or any person for him, and the goods or other estate taken in execution, cannot in the opinion of the persons aforesaid, be sold for three-fourths of their value at the least, the sheriff or other officer shall set up and sell the same for money or tobacco (as the case may be) to be paid at the end of twelve months; and shall take bond of the buyer or buyers, with one or more sufficient securities, to pay the same accordingly, with interest, to such creditor. | Where goods cannot be sold for ¾ths of their value the
debtor may give bond and security to pay the debt, &c. in 12 months. If such bond be not given, the officer may sell the goods on 12 months credit, |
| SECT. 23. All and every bond or bonds, so taken in pursuance of this act, shall mention that the same was or were entered into, for goods or other estate taken in execution, and returned to the debtor, or sold to the obligor (as the case may be) and shall have the force of judgments, and shall also be assignable; and such sheriff or other officer taking such bond, shall deliver the same to the creditor, or his attorney, or return it to the office of the clerk of the court from whence such execution issued, | Tenor of the bonds. To have the force of judgments. |
| there to be safely kept, until demanded by the creditor or his attorney; and if the money or tobacco shall not be paid according to the condition of any such bond, it shall be lawful for the creditor or his assignee, or the attorney of such creditor or assignee, to lodge the same with an affidavit, that the money or tobacco for which such bond was given, or part thereof, is still due, with the clerk of the court from whence the execution issued, and such clerk shall and may thereupon issue an execution for so much as shall appear from the said bond and affidavit to be still due; and upon such execution the sheriff or other officer shall not take any security for the payment of the money or tobacco at a future day, but shall levy the same immediately, and sell the property on which the execution shall be so levied, for the best price that can be had for the same. | Proceedings to be had thereon. |
| SECT. 24. If any obligor or obligors, obligee or obligees, in any twelve months replevy bond taken on any execution under this act, or assignee of any such obligee (as the case may be) shall die before such bond shall be fully paid, it shall and may be lawful for the clerk of any court within this Commonwealth, upon the application and oath of the executors or administrators of any such obligee or assignee, that the amount of such bond is not discharged, to issue a writ of execution against every such obligor or obligors, his or their executors or administrators, and to endorse thereon that "no security is to be taken;" any law to the contrary notwithstanding. | Where the obligors or obligees die. |
| SECT. 25. Provided, That if on return of such execution the debtor can prove the payment of the money for which such execution was levied, either to the assignee or original obligee, before notice of such assignment, (as the case may be) it shall and may be lawful for the court to quash such execution, or give such other judgment therein as to them shall seem right, and the person in whose name such execution issued, shall moreover be liable to the action of such debtor for damages. And for the better direction of such sheriff or other office, the clerk shall endorse upon the back of such execution that "no security shall be taken." Provided, That nothing in this act contained, shall be construed to extend the right of giving security for payment of the money or tobacco mentioned in such execution at a future day, or to have the goods forthcoming at the day of | Executions thereon, issued after payment of the money may be
quashed. In what cases such bonds shall not be taken. |
| sale, to the defendant or defendants, in any judgment or execution not exceeding the sum of five dollars; or to any execution against a sheriff, coroner, public collector, or other person legally authorised to receive any part of the public revenue or their securities; or to any execution against any such officer or his securities, for money received by him under an execution or other process; or for any money or tobacco collected or received by him or them in any manner as sheriffs or public collectors; nor to attornies receiving the money of their clients; nor to securities under an act, intituled "An act to empower securities to recover damages in a summary way." | |
| SECT. 26. Wheresoever on a sale under execution upon twelve months credit, the amount of such sale shall exceed the principal, interest, and costs, the sheriff or coroner (as the case may be) shall take a separate bond, with sufficient security from the buyer or buyers, for the payment of such excess or surplus to the debtor with legal interest, at the end to twelve months from the date thereof, and it shall be expressed in the said bond, that it was given for a surplus or excess as aforesaid, and the said sheriff or coroner (as the case may be) shall deliver every bond so taken to the debtor, his agent, attorney, or other legal representative, or return it to the clerk's office; and it shall have the force of a judgment, be assignable, and in all things concerning the same, be proceeded on in like manner as is above prescribed in case of bonds given to a creditor. And if the sheriff or coroner (as the case may be) shall fail to deliver or return as aforesaid, any bond so taken, within thirty days from the date thereof, he shall be liable to the same penalty for every month of such failure, to be recovered in the same manner, as is directed by law against a sheriff or coroner failing to return an execution. | Separate bond for the surplus to be taken to the debtor. |
| SECT. 27. The court of every county and corporation within this Commonwealth, shall appoint nine persons to act as judges of the value of property, and the sufficiency of securities that may be offered under this act; and no sale under execution shall be made but in the presence of at least three of the said persons, except in the cases herein after mentioned. Provided always, that in any case where the creditor, his agent, or attorney, shall be dissatisfied with the sufficiency of the security admitted by such valuers, it shall be lawful for such creditor to appeal to the next court to be held for the county or corporation, | Commissioners to be appointed in each county to value property under execution and to judge of the sufficiency of securities. |
| thereupon giving notice to the debtor or his attorney, and if such court shall be of opinion that the security so admitted was insufficient, the execution upon which such security was admitted, shall be deemed and taken as alien upon the goods and chattels of such debtor, and shall not be discharged but upon payment of the debt and costs, or render of other sufficient security, satisfactory to the court; and moreover the bond and security given by such debtor, shall remain valid until such counter-security be given. There shall be paid by the creditor, his agent, attorney, or other representative, to each of the valuers appointed by virtue of this act, sixty-seven cents for each day's attendance at any sale, and no more, let the number of executions be what it may, which shall be taxed in the bill of costs where there is but one execution, and where there shall be more than one, in the bill of costs on each execution, proportioned to the amount thereof, and reimbursed to him accordingly; and such attendance shall not be taxed for more than three valuers in any case. And where any property shall be returned to the debtor, or sold on twelve months credit, under this act, such persons shall give the sheriff or other officer a certificate, that in their opinions, such property would not sell for three-fourths of its real value, and that the security taken was sufficient; and such certificate shall be returned by the sheriff with the execution, and shall be a full indemnification for him therein. Every person appointed by a court to judge of the value of property taken in execution, and of the sufficiency of securities offered agreeably to the directions of this act, shall before he proceeds to act under such appointment, take an oath before the court of the county or corporation, or a magistrate thereof, "That he will truly and impartially execute the trust reposed in him by this act." | |
| SECT. 28. Where any bond directed or permitted to be given by this act, shall be assigned, and execution issued thereon against the original obligor or obligors, and on such execution there shall be a return by the sheriff or other officer, that there were no goods, or not sufficient goods, of the obligor or obligors, to make the debt and costs, it shall be lawful for the clerk who issued such execution, to issue a second execution against the assignor or assignors of such bond, for the debt mentioned therein, or such part thereof as shall appear to be still | Assignors of bonds given in pursuance of this act, responsible, if the obligors are insufficient. |
| due, on which execution there shall be similar proceedings to those on an execution against the original obligors. | |
| SECT. 29. Where any writ of capias ad satisfaciendum has been or shall be served on any debtor, it shall be lawful for such debtor to tender to the sheriff or other officer serving the same, slaves or personal property to the value of the debt and costs for which such execution has issued, or may hereafter issue, which property the said sheriff or other officer shall receive and proceed to sell in like manner as is herein directed in the case of goods taken in execution upon a writ of fieri facias, and shall thereupon discharge such debtor out of custody. Provided always, that if such property so tendered shall not be sufficient o satisfy the debt or damages, and costs, or shall be under any lien or incumbrance, so as that the whole cannot be sold, a new capias ad satisfaciendum, or fieri facias, at the option of the plaintiff, shall issue for any balance, and the clerk of the court from which such execution originally issued, shall, upon the return of the sheriff, of the insufficiency or incumbrance, as aforesaid, issue a new capias ad satisfaciendum, or *fieri facias,/if required. But where such property shall have been under any incumbrance, the debtor shall not be at liberty to tender slaves or personal estate on a second capias ad satisfaciendum being served, or in case of a fieri facias issued in consequence of such return, to avail himself of the privileges of this act. | Debtors in execution may tender goods to the officer. |
| SECT. 30. Nothing in this act contained, shall be construed to extend to any proceedings that may be had in consequence of any distress made, or to be made, for any rent reserved and due, or which may hereafter become due, upon any demise, lease or contract, whatsoever. | Nothing in this act to extend to distresses for rent. |
| SECT. 31. The valuers shall be amenable to their respective county or corporation courts, and at the discretion of such courts, may be deprived of their office, for neglect of duty, or mal-feasance therein; and upon the death, resignation or removal from office, of any such valuer, the vacancy shall be supplied by new appointment of the county or corporation court in which it shall happen. | Commissioners to be amenable to the county courts. Vacancies, how to be supplied. |
| SECT. 32. When the sheriff shall, under any execution, have fixed the time and place for the sale of the property taken under such execution, he shall summon three of the commissioners appointed to value the property | Commissioners to be summoned to attend sales. |
| and ascertain the sufficiency of securities, to attend at the time and place of such sale; if only two of the said commissioners attend, they shall, after the hour of two o'clock, choose one of the bystanders to assist them in such valuation; if only one of the said commissioners shall attend, he shall at the same time, and in the same manner, choose one of the bystanders, and they shall, together, choose a third, to value such property as aforesaid; if neither of the said commissioners shall attend, the sale shall be postponed until another day, which shall not be longer than tend days, when the same proceedings shall be had as are directed to take place on the day first appointed for the sale. The sheriff shall administer the same oaths to the persons chosen by the commissioners, as are directed by this act, to be administered to the commissioners by the county or corporation courts. Provided always, that the said commissioners shall not be summoned upon any fieri facias, where the debt or damages and costs, shall not exceed thirty-three dollars, unless the defendant, his agent, attorney, or other legal representative shall require the same; and where the commissioners shall not be summoned, and the debt or damages shall not exceed the sum aforesaid, the sale shall proceed, and the sheriff or other officer possess and exercise the same power of valuation as the commissioners would have possessed and exercised, had they been summoned, but shall receive no reward for such valuation. | Method of proceeding when they do not attend. In what cases they shall not be summoned unless the defendants require it. |
| SECT. 33. The valuers shall make known in every case to any person requiring the same, before or at the sale, the valuation by them made of the goods or other estate taken in execution. The sheriff or coroner (as the case may be) shall be allowed for taking the bonds to the creditor, sixty-two cents and no more; for proceeding to sell, if the property be actually sold or the debt paid, the commission of five per centum on the first three hundred and thirty-three dollars, or ten thousand pounds of tobacco, and two per centum on all sums above that, and one half of such commission, where he shall have proceeded to sale, and the defendant shall have replevied; and no other commission, fee, or reward shall be allowed upon any execution, except for the expense of removing and keeping the property taken. | Valuation of property to be made known to any desiring it. Sheriffs fee for taking the bonds. Commissions. |
| SECT. 34. Upon actual sale of any property under this act, no principal debtor shall become the security. | No principal to be received as security. |
| SECT. 35. Wheresoever on a sale for cash or tobacco under any execution, the amount of such sale shall exceed the principal, interest and costs, the sheriff or other officer shall pay such excess or surplus to the debtor, his executors, administrators, or agent; and if any sheriff or other officer, shall fail or refuse to pay such surplus or excess when required, such sheriff or other officer, his or their security or securities, his or their executors or administrators, shall every and each of them be liable to the like penalty and judgment in favour of the said debtor, as is prescribed and directed by law in favour of the plaintiff against the sheriff for not paying the principal, interest, and costs levied on an execution. | Surplus money to be paid to the debtor. |
| SECT. 36. When a sheriff or other officer under any execution, shall receive the whole or any part of the money or tobacco for which the said execution issued, and the person against whom such execution may have issued, his executors or administrators, shall obtain an injunction to such execution, or for any part of the money or tobacco mentioned therein, before the money or tobacco so received by such sheriff or officer is paid to the plaintiff, his agent or attorney, or his executors or administrators, in every such case the sheriff or other officer, his executors or administrators, shall repay to the person or persons against whom such execution issued, his or their executors, administrators, or agent, the money or tobacco so received, or such part thereof as may be enjoined; and if any sheriff or other officer, his or their executors or administrators, shall fail or refuse, when required, to pay such sum of money or tobacco so received and enjoined, to the person having a right to demand the same, such sheriff or other officer and their securities, his or their executors and administrators, and every of them, shall be liable to the like penalty and judgment in favour of the person, his executors or administrators, by whom the said injunction is obtained, as is directed by law in favour of the plaintiff against the sheriff, for not paying money or tobacco, levied on an execution. | Money levied by execution to be restored to the defendant obtaining an injunction to the judgment. |
| SECT. 37. If any person or persons, taken or charged in execution, shall enter into bond with good and sufficient securities, under a reasonable penalty, upon condition that he or they shall not depart or go out of the rules or bounds of the prison to which he or they be committed, it shall be lawful for the sheriff or officer in whose custody | When prisoners may have liberty of the rules. |
| such prisoner shall be, to permit him or them to go out of the prison and return at their pleasure. | |
| SECT. 38. And for the relief of insolvent debtors, who shall be taken in execution, and to prevent the long imprisonment of unfortunate people, which can be no benefit, but rather a disadvantage to their creditors: Be it further enacted, that if any person shall hereafter be taken or charged in execution, in any suit commenced or prosecuted in any court of record within this commonwealth, it shall be lawful for any judge or justice of the said court, by warrant under his hand and seal, to command the jailor or keeper of the said prison, to bring before the said court, if sitting, or if not sitting, in case, be a superior court, before any two judges of the said court, at a certain time and place therein to be appointed, and if an inferior court, before any two justices of the said court, at their county courthouse, likewise on a certain day to be appointed in such warrant, the body or bodies of such person or persons so in prison as aforesaid, together with a list of the several executions with which he or she shall stand charged in the said jail: which warrant such jailer is hereby required to obey; and reasonable notice thereof shall be given to the party or parties, his or their executors, administrators, or agents, at whose suit such prisoner or prisoners shall be in execution: And every such prisoner, coming before the said court, judges, or justices (as the case shall be) shall subscribe and deliver in a schedule of his whole estate, and make oath and swear to the effect following, that is to say: | Method of insolvent debtors discharge. |
| "I, A. B do, in the presence of Almighty God, solemnly swear, or affirm (as the case may be) that the schedule now delivered, and by me subscribed, doth contain to the best of my knowledge and remembrance, a full, just, true, and perfect account, and discover, of all the estate, goods, and effects unto me any ways belonging, and such debts as are to me owing, or to any person in trust for me; and of all securities and contracts whereby any money may hereafter become payable, or any benefit or advantage accrue to me, or to my use, or to any other person or persons in trust for me; and that I, or any other person or persons in trust for me, have not land, money, stock, or any other estate, real or personal, in possession, reversion, or remainder, of the value of the debt or debts with which I am charged in | Prisoners oath. |
| "execution; and that I have not directly or indirectly, sold, lessened, or otherwise disposed of in trust, or concealed all or any part of my lands, money, goods, stock, debts, securities, contracts, or estate, whereby to secure the same, or to receive or expect any profit or advantage therefrom, or to defraud or to deceive any creditor or creditors to whom I am indebted in anywise howsoever. So help me God." | |
| SECT. 39. Which schedule being so subscribed in open court, if taken in court, and if not, in the presence of two judges or justices, shall be returned to the clerk of the court, there to remain for the better information of the creditors; and after delivering in such schedule and taking such oath, such prisoner shall be discharged by warrant from such court, or from two judges or justices (as the case may be) which warrant shall be sufficient to indemnify such sheriff or 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 should 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 to have execution against any land 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. | Prisoners discharge. But creditors may afterwards have executions against his estate. No insolvent debtor to be imprisoned on account of any judgment obtained before he took the oath unless a capias be issued by order of the court |
| SECT. 40. 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 or chattels shall lie or be found; and such sheriff is hereby authorised, empowered and required to sell 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 | Debtors estate, how to be disposed of. |
| 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. | |
| SECT. 41. 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 of 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, shall immediately issue a summons against each of the persons named as debtors in the said schedule, and against such others as are therein said 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 estates be really in his or her possession, and are the property of such prisoner; 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; 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. | His debts and effects, how to be recovered. |
| SECT. 42. 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 for 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 in 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. | |
| SECT. 43. Every sheriff shall be allowed to retain out of the effects of such insolvent debtor before the distribution thereof, 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 the creditor, or creditors if more than one, in proportion to their demands. | Sheriff to retain his expences out of the debtor's estate; |
| SECT. 44. Where such insolvent person shall not be able to satisfy and pay his ordinary prison fees, the sheriff or jailor may demand and receive of the party or parties at whose suit such insolvent person shall be imprisoned, all such fees as shall become due until such creditor shall agree to release such prisoner; and if the creditor upon notice given to him or her, his or her attorney or agent, shall refuse to give security to the sheriff or jailor, for the payment of such prison fees, or shall fail to pay the same when demanded, such sheriff or jailor shall discharge such debtor out of prison. | Insolvent debtor's prison fees to be paid by the
creditor. If he refuses, the prisoner shall be discharged. |
| SECT. 45. Provided nevertheless, That such insolvent prisoner shall be afterwards liable to the action of the creditor, to recover such fees; and such creditor shall and may, notwithstanding his consent to the releasing such prisoner, at any time afterwards sue out a scire facias to have a new execution against the lands and tenements, goods and chattels, of such prisoner, in case he or she shall afterwards become possessed of any. | But the creditor may afterwards recover such fees of the debtor. |
| SECT. 46. When any debtor is in custody on several executions, it shall not be lawful for such debtor to demand any more or other dieting, than if he was in custody on one execution only; nor shall any sheriff or jailor demand or receive more than the rate fixed by law, in case of a debtor confined on one execution only; which shall be paid by the creditor at whose suit such debtor was first taken. | The prison fees to be paid by the creditor at whose suit the debtor was first taken. |
| SECT. 47. An execution appearing to be duly served | Execution |
| in other respects shall be deemed good, although it be not directed to any sheriff.
SECT. 48. If a distringas issue in detinue, the court for good cause shewn may direct it to be superseded, so far as it respects the specific thing, and to be executed for the alternative price or value only, if fixed in the judgment, or if the same shall afterwards be fixed by a writ of enquiry. |
duly served, valid although not directed to any sheriff. Distringas in detinue may be superseded as to the specific thing. |
| SECT. 49. If a replevy bond be quashed as faulty, the sheriff taking the same, shall be at all times liable for damages to the party injured, or his representatives. | Sheriff liable when a replevy bond is quashed as faulty. |
| SECT. 50. And whereas doubts have arisen in what manner judgment shall be rendered against any sheriff, coroner, or serjeant of a corporation, who shall fail to return an execution to the office from whence it issued, on or before the return day thereof: Be it enacted, That where any writ of execution or attachment for not performing a decree in chancery shall come into the possession of any sheriff, coroner, or serjeant of a corporation, and he shall fail to return the same, to the office from whence it issued on or before the return day thereof, it shall be lawful for the court, ten days previous notice being given upon the motion of the party injured, to fine such sheriff, coroner, or serjeant of a corporation, at their discretion, in any sum not exceeding five dollars per month for every hundred dollars contained in the judgment or decree on which the execution or attachment so by him detained was founded, and so in proportion for any greater or lesser sum, counting the aforesaid months from the return day of the execution or attachment, to the day of rendering judgment for the said fine. | Penalty on sheriff for failing to return an execution. |
| SECT. 51. If any sheriff, under sheriff, or other officer shall make return upon any writ of fieri facias, or venditioni exponas, that he hath levied the debt, damages or costs, as in such writ is required, or any part thereof, and shall not immediately pay the same to the party to whom the same is payable or his attorney, or shall return upon any writ of capias ad satisfaciendum, or attachment for not performing a decree in chancery for payment of any sum of money or tobacco, that he hath taken the body or bodies of the defendant or defendants, and hath the same ready to satisfy the money and tobacco in such writ mentioned, and shall have actually received such money or tobacco of the defendant or defendants, or have suffered him, her, or them to escape with the consent | Method of proceeding against a sheriff failing to pay money levied by execution. |
| such sheriff, under sheriff or officer, and shall not immediately pay such money or tobacco to the party to whom the same is payable, or his attorney, then, or in either of the said cases, it shall and may be lawful for the creditor, 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 general court, or other court from whence such writ shall issue, to demand judgment against such sheriff, officer or under sheriff, or securities of such under sheriff, 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 is hereby authorised and required to give judgment accordingly, and to award execution thereon; provided such sheriff or officer have ten days previous notice of such motion. | |
| SECT. 52. And whereas it is unreasonable that sheriffs should be obliged to go out of their counties to give notice to creditors at whose suit any person may be in the custody of such sheriff, or to pay money levied by execution: Be it further enacted, That where any execution shall be delivered to the sheriff of any other county than that wherein the 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 | Creditors to appoint agents in the counties in which executions are served. |
| cases respectively, without any notice to be given to the creditor so failing. | |
| SECT. 53. After obtaining a final decree for lands, slaves, or money, or things 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 possession, 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 from term to term 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. 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 any order or decree in chancery into execution, in any manner in which he might avail himself before the passing of this act. | Executions may be issued on decrees in chancery. |
| SECT. 54. No goods or chattels whatsoever, lying or being in or upon any messuage, lands or tenements, which are or shall be leased for life or lives, term of years, at will, or otherwise, shall at any time hereafter, be liable to be taken by virtue of any writ of execution, or on any pretence whatsoever, unless the party so taking the same shall, before removal of the goods from off such premises, pay or tender to the landlord, or lessor thereof, or his agent, all the money or tobacco due for the rent of the said premises at the time of taking such goods or chattels in execution. | Goods on leased premises not liable to execution until the rent in arrear is paid or tendered. |
| SECT. 55. Provided nevertheless, That such rent arrear do not amount to more than one year's rent; and if more be due, then the party suing out such execution, paying or tendering to such landlord, or his agent, one year's rent, may proceed to execute his judgment; and | Proviso. |
| the sheriff or officer serving the same, is hereby empowered and required to levy and pay to the plaintiff, as well the money or tobacco so paid for rent, as the execution money. | |
| SECT. 56. All acts or parts of acts coming within the purview of this act, shall be, and are hereby repealed. Provided always, that nothing in this act shall be construed to affect any rights, remedies, fines, forfeitures, penalties or amercements, which have accrued, been vested, or incurred, prior to the commencement of this act. | Repealing clause. |
| SECT. 57. This act shall commence and be in force from and after the passing thereof, until the first day of January, in the year of our Lord one thousand seven hundred and ninety-four. | Commencement and duration of this act. |
| Pages 331-356
| Pages 381-401
|