1819-(14) Sec. 18. Penalty for ties. § 23. When any sheriff shall fail to perform the duties by this act required, the person or persons aggrieved, may move against such deneglect of du- linquent sheriff, and have judgment against such sheriff and his securities in office, for the amount he has failed to pay over as aforesaid, or Returning for failing to return the execution in manner as above directed, in the executions, court from which such execution had issued, upon giving three days notice of such motion to such delinquent sheriff or his securities in office: Provided however, That time may be given to such delinquent sheriff to make his defence, upon good cause shown to the court before whom such motion may be made. &c. 1811-(1) Sec 2. Property of principal to be first levied on. Security to make affidavit. 1829-(14) Sec. 5. Sheriff to re ney paid, and § 24. When an execution may issue against any principal and security, on any bill, bond, note, or other instrument, the sheriff, or other officer shall levy on the property of the principal first, if he has any property in the county where the security resides: Provided, The security make oath before some justice of the peace, that he is security on said bond, bill, note, or other instrument, which affidavit shall be filed by the sheriff or other officer with the execution. § 25. It shall be the duty of the sheriffs, coroners, and constables in this state, to endorse upon all executions and other process, by ceipt for mo- virtue of which they may have collected any moneys, the amount so specify the received, specifying how much debt, how much interest, how much items on the commission, and how much cost; and shall receipt every such defendant or defendants, to such execution or process, for said amount; specifying the several sums so received, so as to make the receipt to any such defendant or defendants correspond with any such officer's returns. execution. 1818-(14) Sec. 1. Circuit court may order EXECUTIONS FROM JUSTICES OF THE PEACE. § 26. Whenever it shall become necessary, for want of personal property, to levy an exccution issued by a justice of the peace, on land, it shall be the duty of the officer levying such execution, to resale of land turn the same to the next superior court of his county; and such court shall, on motion of the plaintiff, and it appearing by an exhibition of the proceedings before the justice, that the same have been regular, order a sale of such land, or whatever part thereof may be necessary to satisfy such execution. levied on by a constable. 1822-(21) Sec. 1. Execution another 27. Where any judgment is rendered by a justice of the peace, and the person against whom such judgment may be rendered, removes directed to to another county, it shall be lawful for such justice to issue execution county, to be to any county in this state, against the property of the person against certified by whom judgment is rendered; which execution shall be certified by the clerk of coun- clerk of the county court:a and it shall be the duty of any legal officer of a But see § 29. the county to which such execution may issue, to execute and make return of such execution, according to the mandate thereof, to the justice of the county from which execution issued. ty court. 1824-(17) Sec 1. Such execu § 28. Justices of the peace in issuing executions to counties, other than such as they may reside in, shall make the same returnable tions return within any period of time, not less than thirty, nor more than ninety to 90 days. days. able from 30 Ib. Sec. 2. § 29. In all cases of executions running from one county to anoJustice may ther, it shall be the duty of any justice of the peace of the county to certify execu tion from another county. The seventeenth section required sheriffs to return all executions not levied, or on which the money was not made, to the clerk's office by the first day of the next term. All writs and executious are now required to be returned, under a like penalty, at least three days previously to the term of the court to which they are returnable. See "Judicial Proceedings at Common Law,”— § 119. which such executions may be directed, upon having the same presented for that purpose, and upon being satisfied of the hand-writing of the justice of the peace issuing such executions, to certify the same, which shall be sufficient evidence of the authenticity thereof. Sec 1. 30. So much of the sixteenth section of an act entitled "An Act 1827-(38) to revise, consolidate, and amend the several acts relative to justices Constable of the peace and constables," as makes it the duty of constables, for not to take want of goods and chattels on which to levy an execution, to take the body for defendant's body, by virtue thereof, is hereby repealed. defendant's want of goods. to issue ca.sa. 31. It shall not be lawful for any justice of the peace to issue a Tb. Sec. 2. capias ad satisfaciendum, unless expressly required by the plaintiff, Justice not his attorney, or agent; and it shall not be lawful for any constable to unless ex: take the body of the defendant upon any execution, unless command-pressly reed thereby and it shall be the duty of the constable to release the body when the defendant will point out property sufficient to discharge the demand with which he is charged in execution. 2. SUPERSEDEAS OF EXECUTIONS. quired. 29. 32. If a distringas issue in detinue, the court for good cause 1807—–(21) shown, may direct it to be superseded, so far as it relates to the spe- Dingas cific thing, and to be executed for the alternative price or value only, in detinue. if fixed in the judgment, or if the same shall afterwards be fixed by a writ of inquiry. Judges may § 33. The judges of the circuit courts, respectively, shall have 1821-(30) power and authority in vacation, to supersede any execution, when it Sec. 2. shall satisfactorily appear to them, or any of them, that the same shall supersede exhave improperly issued from the clerk's office of any of the circuit courts of this state.1 ecutions im properly is sued. On granting bond. § 34. Whenever an order for a supersedeas to an execution, shall 1826 (6) be granted by any of the judges of the circuit courts, it shall be the Sec. 1. duty of the clerk of the court to which it shall be directed, before is- supersedeas, suing the same, to take a bond from the party in whose favor it is clerk to take granted, with good and sufficient security, to be approved by said clerk, in double the amount for which the execution shall have issued, payable to the plaintiff or plaintiffs in said execution; conditioned to Condition. pay and satisfy to the said plaintiff or plaintiffs, the sum of money specified in said execution, together with interest and costs, in case the supersedeas shall be set aside, or be annulled. Supersedeas the force of a 35. The said bond, in case the supersedeas be set aside or annul- b. Sec. 2. led, shall have the force and effect of a judgment against all the obli- annulled, gors, and execution may be taken out against them all for the sum of bond to have money for which the first execution shall have issued, together with judgment. lawful interest thereon, and the costs by the plaintiff or plaintiffs in the said execution, expended. 3. PRIORITY AND LIEN OF EXECUTIONS. Sec. 8. 36. No writ of fieri facias, or other writ of execution, shall bind 1807–(21) 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- from the de sheriff, coroner, or other officer, to be executed; (1) and for the bet 1 A similar power is given to the judges of the county courts by act of 1822. See "Judiciary-County Court,"—§ 8. (1) The lien of an execution is discharged by an injunction. Barnes v. Baker & Sledge, Min. Rep. 373. livery of the execution to the sheriff. Penalty on officer holding execu tion, for not endorsing time of deli very. 1828-(34) Sec. 1. Execution of the peace, perty from the date of its Constable's ent execu tions. To endorse the time of delivery. ter manifestation of the said time, such sheriff, coroner, or other of ficer, 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 on the same day, that which was first delivered, shall be first satisfied. If any sheriff, coroner, or other officer, to whom any execution shall be delivered, shall fail or neglect to endorse thereon, the day of the month and year when he received the same, every such person, for every such failure, shall be liable, on a motion to be made before the court from whence the execution issued, to a penalty not exceeding fifteen per centum, upon the amount of said execution, if it be for money; and if it be for a specific thing, one hundred dollars, to the use of the party injured, upon giving ten days previous notice of such motion; and shall moreover be liable to the action of the party aggrieved, for all damages arising from such failure. § 37. Executions issued by a justice of the peace shall operate as a lien on the property of the defendant from the time of the levy and from justice not sooner; but if more than one execution shall come into the hands to bind pro- of the constable at the same time against the said defendant, if all cannot be satisfied, each shall be entitled to a ratable proportion of the levy. proceeds and if more than one execution shall come into the hands duty in satis. of the same constable against the same defendant at different times, fying difler then the one first delivered, shall be first satisfied: and to show the priority between different executions, the constable shall endorse on each the time of delivery, and whether it be the first, second, or third, &c. in hand, against the same party-and the lien so created by the levy of an execution by a constable, shall not be over-reached by the lien of any execution in the hands of the sheriff, not previously levied. § 38. The lien created by the delivery of an execution from a court of record to the sheriff, shall continue to bind the property of the defendant, as between different judgment creditors in the courts of record in this state, in the following manner, viz: If a term shall elapse after the return of the first execution, before an alias shall be sued out and delivered to the sheriff, the lien created by the delivery of the first writ of execution shall be cancelled and of no avail;-but if a term shall not have elapsed, and the alias shall be delivered to the sheriff before the sale of property, under a junior execution in favor of another creditor, the lien shall continue notwithstanding the alias may not have been delivered until after such junior execution; but if such alias shall not be delivered until after the sale under such junior execution, the lien of the latter shall prevail. Ib. Sec. 2. Priority of lien between judgment creditors. Ib. Sec. 3. may be for § 39. If the title of the property levied on be so doubtful as to induce the sheriff to require a bond of indemnity, if the party having feited by fail the prior lien shall fail or refuse to give such bond, then the person nify sheriff. having the next lien, shall be authorized to give such bond, and have the property sold for his benefit. ure to indem 1807-(21) Sec. 35. Goods and 4. PROPERTY EXEMPT FROM EXECUTION. § 40. 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 chattels on lives, term of years, or will, or otherwise, shall be liable to be taken ses exempted by virtue of any writ of execution on any pretence whatever, unless conditional the party so taking the same shall, before the removal of the goods from such premises, pay or tender to the landlord or lessor thereof, leased premi ly. or his agent, all money due for the rent of the said premises at the time of taking such goods, or chattels, in execution: Provided nevertheless, That such rent arrears 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 the sheriff or officer levying the same, is hereby empowered and required to levy and pay to the plaintiff, as well the money so paid for the rent, as the execution money.1 Sec. 1. § 41. It shall not be lawful for any sheriff or other officer, to levy 1821-(16) a writ of fieri facias or other execution on the planted crop of a Execution debtor, or person against whom an execution may issue, until the crop not to be leis gathered. vied on crop until gather 1833-(28) § 42. The following articles shall be retained by and for the use of ed every family in this state, free and exempt from levy or sale by vir- Sec. 1. tue of any execution or other legal process, that is to say: two beds Property exempted and furniture, two cows and calves, two spinning-wheels, two axes, absolutely. two boes, five hundred weight of meat, one hundred bushels of corn, all the meal that may at any time be on hand, two ploughs, one table, one pot, one oven, two water vessels, two pair cotton cards, all books, one churn, three chairs, one work horse, mule, or pair of work oxen, one horse or ox cart, one gun, all tools or implements of trade, and twenty head of hogs. NOTE.-The arms and accoutrements of the militia are also exempt from execution or other process.-See "Militia," Chap. 4. 5. RIGHT OF PROPERTY EXEcuted. Where the doubtful, the § 43. If any sheriff shall levy an execution on property, and a 1807—(21) doubt shall arise whether the right of such property is in the debtor Sec. 16. or not, such sheriff may apply to the plaintiff, his attorney or agent, right of profor his bond, with good security, for indemnification for the sale of the perty property seized; which, if the plaintiff, his attorney or agent, refuses sheriff may or fails to do, within ten days after such application, the sheriff or demnity. other officer shall be justified in delivering up such property to the party from whose possession it was taken. demand in How to pro of fraudu. fendant's § 44. When the sheriff shall return on any execution, "that there 1812—(19) is no property to be found in his county belonging to the defendant," Sec. 1. and it shall be suggested by the plaintiff that the defendant has pro- ceed in case perty in his own right, but hath fraudulently conveyed the same, for lent conveythe purpose of defrauding his creditor, or to avoid the payment of the ance of de execution; notice in the nature of a scire facias shall be directed by property. the court to issue to the person or persons in whose hands such property is supposed to be, or having such fraudulent conveyance, and on the return of the scire facias executed as in other cases, an issue shall be made up and tried by a jury; and if the jury shall find the conveyance to be fraudulent, or without valuable consideration, the property thus fraudulently conveyed or made over shall be subject to the plaintiff's execution, in the hands of the defendant, or the person or persons thus notified. Sec. 7. 45. Where any sheriff shall levy execution on property claimed 1812—(16) by any person, not a party to such execution, such person may make Claimant of oath to such property; and it shall thereupon be the duty of the she-executed pro perty to make oath 1 The same restriction applies to crops raised on rented lands.—See "Rent." and give bond. riff to postpone the sale or further execution of the judgment until the next term of the superior court of the county in which such execution is so levied; and such court shall require the parties concerned, to make up an issue under such rules as they may adopt, so as to try the right of property before a jury at the same term; and the sheriff shall make return on said execution accordingly: Provided, That the person claiming such property, or his attorney, shall give bond to the sheriff with security in a sum equal to the amount of the execution, Condition. conditioned to pay the plaintiff all damages which the jury on the trial of the right of property, may assess against him, in case it should appear that such claim was made for the purpose of delay; (1) and the jury shall have power to give such damages, not less than ten per cent. as may seem reasonable and just to the plaintiff, against the claimant, in case it shall be sufficiently shown that such claim was intended for delay only; and it shall be lawful for such jury to give verdict in manner aforesaid, by virtue whereof judgment may be entered up, and execution issued against such claimant: And provided also, That the burthen of the proof shall be upon the plaintiff in the execution, and it shall be the duty of the sheriff to return the property levied upon, to the person out of whose possession the same was ta ken, upon such person entering into bond, with security, to the plaintiff in execution, in double the amount of the debt and costs, conditioned for the delivery of the property to the sheriff, whenever the claim of the property so taken shall be determined by the court; and if any person to whom property is so returned, shall neglect or refuse to deliver the property to the sheriff, it shall be the duty of the sheriff forthwith to return the bond to the clerk's office of the superior court, Bond to have which bond shall have the force and effect of a judgment, and execuforce of judg- tion may be awarded by the court against all or any of the obligors, having ten days' notice thereof. Burthen of proof to lie on plaintiff in execution. ment. 1821-(38) § 46. In all trials of the right of property as aforesaid, when the Jury may as- jury may be of opinion that the claim was made to said property for sess damages purposes of vexation or delay, they shall have power to give such damages as the case may require, not exceeding fifteen per cent. on the amount of the execution. not exceeding 15 per cent. Ib. Sec. 4. Claim not dismissed but by consent of oppo. site party. 1822-(9) Sec. 1. When the claim does not exceed Justice to is § 47. Whenever any claim to property shall be made, the same shall not be dismissed, discontinued, or withdrawn, but by the consent of the opposite party. § 48. In all cases where property shall be taken by virtue of an execution or attachment, when the sum claimed doth not exceed fifty dollars, the person or persons claiming the same, and not being a party to the suit, may apply to some justice of the peace for a venire 50 dollars, facias, directed to the constable or other officer, to summon seven sue venire fa- good and lawful jurors to attend at such time and place as he the said justice shall appoint, not less than five, nor more than ten days from the time of issuing the same: Provided always, That said justice of the peace, before he issues his venire facias, shall require the claimant to make oath or affirmation of his right to the property; and if cias. 1 An act passed December 18, 1821, "prescribing the manner of changing the venue in criminal cases, and for other purposes," has the following clause "Sec. 2. And be it further enacted, That it shall be lawful in issues, made up for the purpose of trying the right to any property taken in execution, for the judge trying such case to grant continuances upon good cause shown, as other cases, any law to the contrary notwithstanding." (1) The bond with security of one of several claimants, is sufficient to au thorise the trial of the right of property. Marrs & Co. v. Gantt, Min, Rep 406 |