the jury shall find the property liable to the execution, the person or 49. The jury so summoned, when they appear at the place ap- b. Sec. 2. pointed, shall take the following oath, viz: "We, and each of Oath of jury. do us, solemnly swear, (or affirm, as the case may be,) that we will well and truly inquire into the right of property now held by execution (or attachment, as the case may be,) and a true verdict give according to evidence: So help me God." Provided always, That if any of the jurors summoned as aforesaid, fail to attend, the constable shall com-Constable plete the number from the by-standers; and the verdict of the jury may sum shall be returned to the justice, who shall enter judgment thereon; men. and if either party be dissatisfied with such judgment, they shall be entitled to an appeal to the next circuit court, where the trial shall be Parties may had the first term, by an issue made up by the parties or their counsel. appeal. mon tales sess dama $50. Where it may appear to the satisfaction of the jury, that the b. Sec. 3. claim was set up for the purpose of vexation or delay, the jury shall Jury may asassess the damage not exceeding fifteen per cent. on the amount of ges. the plaintiff's claim. jurors and may be fined. 51. If any person being returned as a juror, to try the right of . Sec. 4. property as aforesaid, fail to attend, it shall be the duty of the justice Defaulting attending said trial, to assess a fine on said juror, not exceeding five witnesses dollars; but if said juror shall attend within five days, and render a sufficient excuse to the justice aforesaid, his fine shall be remitted; and any witness failing to attend and give evidence, when legally summoned for that purpose, shall be liable, in like manner, to a fine not exceeding five dollars; which fines shall be collected by the constable, and paid to the county treasurer. § 52. Nothing herein contained shall be so construed as to prevent Ib. Sec. 5. the party, in whose possession the property is levied on, from retaining that possession, under the rules and regulations heretofore prescribed by law. Sec. 1. Sheriff may indemnity fend suit against them § 53. Whenever any sheriff, coroner, or constable takes from the 1827–(18) plaintiff in any execution, a bond indemnifying him for levying or selling property, the title to which is doubtful or disputed, if suit is give notice instituted against him, or against any of his deputies for making such nors in levy or sale, he may give notice to the principal and securities in said bond to debond, of the pendency of such suit, whose duty it shall be to defend and have the same, and the judgment for the same amount shall be rendered by judgment the court on motion, in favor of said sheriff, coroner, or constable, on motion. against the principal and security in such bond, as may be obtained by the party suing such sheriff, coroner, or constable, which judgment may be rendered at any time after a recovery against any sheriff, coroner, or constable: Provided, That the court shall, in all cases when required to do so by the obligors in any such bond, cause any issues in fact which may arise on such motion to be tried by a jury. § 54. The notice contemplated by this act shall be given to the ob- Ib. Sec. 2. ligors in the bond of indemnity, at least sixty days before the trial of any suit against said officers. Notice to be si ty days before trial. Sec. 1. § 55. It shall be the duty of the sheriff to prepare a bond, when- 1823—(33) ever property levied on by him shall be claimed and affidavit made, Sheriff to and good security offered for the trial of the right thereof, which bond prepare bond, shall be made payable to the plaintiff in the execution, and conditioned perty levied for the forthcoming of the property, if the same be found liable to the on shall be execution, and for the payment of such costs and damages as shall be Boud pay 22 when pro claimed. able to plaintiff. Ib. Sec. 2. tion from an perty to be recovered for putting in the claim for delay, for which bond the sheriff shall be entitled to a fee of fifty cents, to be taxed in the bill of costs. § 56. Whenever property shall be levied on, by virtue of an exeOn execu- cution from another county, if the same shall be claimed, and bond other county, given to try the right thereof, the trial shall be had as heretofore in right of pro the county. where the levy shall have been made, and it shall be the tried in the duty of the sheriff to return the execution to the court from which it where the issued, with his return endorsed, and to make out a copy of the same, levy is made. and of his return, and return such copy to the circuit court of the county in which the levy shall be made, and the copy of such execution, shall be sufficient for the court to proceed on, and try the right of the property levied on. county Ib. Sec. 3. the value § 57. It shall be the duty of the jury, in all cases, when they shall Jury to find find the property subject to the execution, to find the value of each each article article separately; and if the claimant shall fail to deliver the same or separately. any part thereof when required by the sheriff, it shall be the duty of Forfeiture of the sheriff to go to the clerk, and endorse such failure on the bond by claimant's bond. him returned, with a copy of the execution, whereupon said bond shall have the force of a judgment, and the clerk shall issue execution against the claimant or claimants, and his or their security or securities, for the value of the property not delivered, as assessed by the Appeal bond. jury, with interest from the date of the verdict; and if either party shall appeal, or sue out a writ of error, and wish to supersede the judgment, bond and security shall be given to the adverse party in double the value of the property levied on, if said value shall be less than the judgment, but if as much or more than the judgment, then bond shall be taken in double the amount of the judgment, and the damages given for delay. Ib. Sec. 4. on forfeiture bond under § 58. If property shall be levied on by a constable by virtue of an exProceedings ecution from another county, and the property shall not be delivered of delivery on the day of sale, according to the delivery bond, the same shall be execution returned by the constable forfeited, to any justice of the peace in his from justice county, together with a copy of said execution, who shall proceed of the peace thereon in the same manner as if judgment had been given by him, county. and said constable shall return the execution to the justice that issued it, with an endorsement showing the levy and the forfeiture of the bond. another Ib. Sec. 5. Trial of the right of pro. ed in such case. § 59. If property so levied on shall be claimed by a third person, it shall be the duty of the constable to return, in like manner, a copy perty claim of the execution, and the forthcoming bond to some justice of the peace in his county, with the fact of the claim being put in, and it shall be the duty of the said justice to proceed with the trial of the right of property in the same manner as if the judgment in the case had been rendered by him, and said copy of the execution shall supply the place of the original in the trial; and said justice shall issue execution against the claimant and security, for the value of the property, if it shall not be delivered after being found subject to the execution; and in case of appeal, the procedendo shall go to the justice before whom the right of property shall have been tried, who shall issue all necessary process in obedience thereto; and when the proceedings shall be closed, he shall send a certificate of the result to the justice who issued the first execution, and it shall be the duty of the constable, so soon as a claim of property shall be put in, to return the execution to the justice who issued it, with a return endorsed, showing the levy and the claim. Ib. Sec. 6. Trial of right not to ex empt other property from execution. § 60. Proceedings for the trial of the right of property, shall in no case prevent the plaintiff from going on to make his money out of other property than that levied on and claimed, if it be found; but the supersedeas, by appeal or writ of error, shall only apply to the property so levied on and claimed. bond neces $61. So much of the law now in force as requires two bonds to be b. Sec. 7. taken for the trial of the right of property, is hereby repealed: Pro-Only nece vided, That a claim of property in conformity to the provisions of this sary. act, shall operate as a release by the claimant, of damages against the Release of sheriff or other officer taking such property in execution. 6. DELIVERY BONDS. damages by claimant. Sec. 11. execution money re them. 62. When an execution shall issue against the estate of any she- 1807—(21) riff, under-sheriff, marshal of a corporation, coroner, or constable, or No security their securities, or their heirs, executors, or administrators, or either allowed on of them, upon a judgment obtained against such sheriff, under-sheriff, against shemarshal of a corporation, coroner, or constable, or securities, or their riff &c. for heirs, executors, or administrators, or either of them, for money reco-ceived by vered by such sheriff, under-sheriff, marshal of a corporation, coroner, or constable, by virtue of any execution or process levied or executed by him or them, or for any money collected or received by them, in any manner, as sheriff, under-sheriff, marshal, coroner, or constable, no security for the payment of the money mentioned in such execution, at a future day, or to have the goods forthcoming 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 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." § 63. If a forthcoming bond be quashed as faulty, the sheriff taking b. Sec. 30. the same shall be at all times liable for damages to the party injured, or his representatives. Sheriff liable for insuf ficient bond. Sec. 4. remain with § 64. It shall be the duty of every officer levying any execution on 1812 (15) goods and chattels, if the person whose property is levied on, or who property lemay have delivered up property in discharge of his body, will give vied on may bond to the creditor or creditors, with good and sufficient security, in the defenthe penalty of double the amount due by such execution, including all dant upon his giving costs, conditioned for the forthcoming and delivery of the same pro- bond. perty to the proper officer, on the day, and at the place appointed for the sale of the same, by twelve o'clock (noon,) to suffer the property to remain in the possession of, and at the risk of the debtor or debtors. Officers' fees. § 65. Every officer taking any bond under this act, shall be entitled b. Sec. 5. to seventy-five cents for taking the same, but shall not be entitled to any commissions on any execution, unless the money be made, or property actually sold. Sec. 8. ed bond in §66. On the forfeiture of any bond given to any sheriff or coroner, 1829 (14) for the forthcoming of property by him levied on, by virtue of an exe- sheriff to recution, if the same was issued from the circuit or county court, of the turn forfeit. county of which he is sheriff or coroner, it shall be his duty to re- ten days. turn the said bond and execution within ten days thereafter, to the elerk of said court, with the necessary endorsement thereon, of forfeiture; and it shall be the duty of the several clerks of the circuit Clerk to isand county courts of this state, within five days after any forthcoming tion thereon bond has been returned by the proper officer as forfeited, to his said in five days. office, to issue execution thereon, against all the obligors therein; [a 1812—(15) and on any such execution, no security of any kind shall be taken; Sheriff failand the clerk issuing the same, shall endorse the same thereon, and ing, liable to the officer to whom the same may be directed, shall act according sue execu Sec. 4.1 motion. Ib. Sec. 2. tion from an perty to be recovered for putting in the claim for delay, for which bond the sheriff shall be entitled to a fee of fifty cents, to be taxed in the bill of costs. § 56. Whenever property shall be levied on, by virtue of an execution from another county, if the same shall be claimed, and bond other county, given to try the right thereof, the trial shall be had as heretofore in right of pro the county where the levy shall have been made, and it shall be the tried in the duty of the sheriff to return the execution to the court from which it County issued, with his return endorsed, and to make out a copy of the same, levy is made. and of his return, and return such copy to the circuit court of the county in which the levy shall be made, and the copy of such execution, shall be sufficient for the court to proceed on, and try the right of the property levied on. where the Ib. Sec. 3. the value of bond. § 57. It shall be the duty of the jury, in all cases, when they shall Jury to find find the property subject to the execution, to find the value of each each article article separately; and if the claimant shall fail to deliver the same or separately. any part thereof when required by the sheriff, it shall be the duty of Forfeiture of the sheriff to go to the clerk, and endorse such failure on the bond by claimant's him returned, with a copy of the execution, whereupon said bond shall have the force of a judgment, and the clerk shall issue execution against the claimant or claimants, and his or their security or securities, for the value of the property not delivered, as assessed by the Appeal bond. jury, with interest from the date of the verdict; and if either party shall appeal, or sue out a writ of error, and wish to supersede the judgment, bond and security shall be given to the adverse party in double the value of the property levied on, if said value shall be less than the judgment, but if as much or more than the judgment, then bond shall be taken in double the amount of the judgment, and the damages given for delay. Ib. Sec. 4. bond under execution § 58. If property shall be levied on by a constable by virtue of an exProceedings ecution from another county, and the property shall not be delivered of delivery on the day of sale, according to the delivery bond, the same shall be returned by the constable forfeited, to any justice of the peace in his from justice county, together with a copy of said execution, who shall proceed of another thereon in the same manner as if judgment had been given by him, and said constable shall return the execution to the justice that issued it, with an endorsement showing the levy and the forfeiture of the bond. of the peace county. Ib. Sec. 5. ed in such case. § 59. If property so levied on shall be claimed by a third person, right of pro- it shall be the duty of the constable to return, in like manner, a copy perty claim of the execution, and the forthcoming bond to some justice of the peace in his county, with the fact of the claim being put in, and it shall be the duty of the said justice to proceed with the trial of the right of property in the same manner as if the judgment in the case had been rendered by him, and said copy of the execution shall supply the place of the original in the trial; and said justice shall issue execution against the claimant and security, for the value of the property, if it shall not be delivered after being found subject to the execution; and in case of appeal, the procedendo shall go to the justice before whom the right of property shall have been tried, who shall issue all necessary process in obedience thereto; and when the proceedings shall be closed, he shall send a certificate of the result to the justice who issued the first execution, and it shall be the duty of the constable, so soon as a claim of property shall be put in, to return the execution to the justice who issued it, with a return endorsed, showing the levy Trial of right and the claim. Ib. Sec. 6. not to exempt other § 60. Proceedings for the trial of the right of property, shall in no property case prevent the plaintiff from going on to make his money out of other property than that levied on and claimed, if it be found; but the from execu tion. supersedeas, by appeal or writ of error, shall only apply to the property so levied on and claimed. bond neces 61. So much of the law now in force as requires two bonds to be Пb. Sec. 7. taken for the trial of the right of property, is hereby repealed: Pro- Only nece rided, That a claim of property in conformity to the provisions of this sary. act, shall operate as a release by the claimant, of damages against the Release of sheriff or other officer taking such property in execution. 6. DELIVERY BONDS. damages by claimant. Sec. 11. execution money re § 62. When an execution shall issue against the estate of any she- 1807—(21) riff, under-sheriff, marshal of a corporation, coroner, or constable, or No security their securities, or their heirs, executors, or administrators, or either allowed on of them, upon a judgment obtained against such sheriff, under-sheriff, against shemarshal of a corporation, coroner, or constable, or securities, or their riff, &c. for heirs, executors, or administrators, or either of them, for money reco-ceived by vered by such sheriff, under-sheriff, marshal of a corporation, coroner, them. or constable, by virtue of any execution or process levied or executed by him or them, or for any money collected or received by them, in any manner, as sheriff, under-sheriff, marshal, coroner, or constable, no security for the payment of the money mentioned in such execution, at a future day, or to have the goods forthcoming 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 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." . Sec. 30. Sheriff liable § 63. If a forthcoming bond be quashed as faulty, the sheriff taking the same shall be at all times liable for damages to the party injured, for insuf or his representatives. ficient bond. Sec. 4. Property le remain with § 64. It shall be the duty of every officer levying any execution on 1812 (15) goods and chattels, if the person whose property is levied on, or who may have delivered up property in discharge of his body, will give vied on may bond to the creditor or creditors, with good and sufficient security, in the defenthe penalty of double the amount due by such execution, including all dant upon his giving costs, conditioned for the forthcoming and delivery of the same pro- bond. perty to the proper officer, on the day, and at the place appointed for the sale of the same, by twelve o'clock (noon,) to suffer the property to remain in the possession of, and at the risk of the debtor or debtors. Officers' fees. § 65. Every officer taking any bond under this act, shall be entitled Ib. Sec. 5. to seventy-five cents for taking the same, but shall not be entitled to any commissions on any execution, unless the money be made, or property actually sold. Sec. 8. ed bond in $66. On the forfeiture of any bond given to any sheriff or coroner, 1829-(14) for the forthcoming of property by him levied on, by virtue of an exe- Sheriff to recution, if the same was issued from the circuit or county court, of the turn forfeit. county of which he is sheriff or coroner, it shall be his duty to re- ten days. turn the said bond and execution within ten days thereafter, to the clerk of said court, with the necessary endorsement thereon, of forfeiture; and it shall be the duty of the several clerks of the circuit Clerk to isand county courts of this state, within five days after any forthcoming tion thereon bond has been returned by the proper officer as forfeited, to his said in five days. office, to issue execution thereon, aagainst all the obligors therein; [a 1812—(15) Sec. 4.] and on any such execution, no security of any kind shall be taken; Sheriff failand the clerk issuing the same, shall endorse the same thereon, and ing, liable to the officer to whom the same may be directed, shall act according sue execu motion. |
