GENERALLY. the names of the parties in the execution, its general nature, EXECUTIONS and the day of receiving it." And on serving it, he is bound, on the request of the party served, and without any charge, to deliver him a copy.98 We have already noticed the powers with which the sheriff is clothed in cases where resistance is made to the execution of process and the offices to which he is required by statute to make his returns. 99 be compel an execution or The sheriff is bound to return an execution; and, to compel Sheriff may him to do so, the plaintiff may enter a rule in the common rule led to return book, requiring him to return it within twenty days after no- by tice of the rule, or that an attachment issue; and on filing an attachment, affidavit of service of a notice of such rule, and of the delivery of the writ, the sheriff's default may be entered, and an attachment issued of course.100 And a defendant is entitled to have an execution returned, and may apply to the court for a rule for that purpose.1 The sheriff, however, ought not to wait until he has been ruled to return an execution; for the plaintiff, without proceeding by attachment, has an election to commence an action action on the on the case, in the first instance.2 case. dence where not returned. And in an action against the sheriff for the escape of a de- Parol evifendant, taken on a capias ad satisfaciendum, which he has ne- execution glected to return, the plaintiff may give parol evidence of the issuing of the writ, its delivery to the sheriff, and the arrest. If the sheriff neglect to return an execution, the party may Suit on sherapply for permission to put the sheriff's official bond in suit, having previously recovered judgment against him in an action iff's bond. 97 2 R. St. 440. s. 75. "Ante, Vol. 1. p. 206. 13 Johns. Rep. 529. 15 Ib. 456. sed vide Bing. on Ex. 251. and quære, whether the sheriff having taken the defendant in exe . cution on a capias ad satisfaci- 3 13 Johns. Rep. 529. GENERALLY. EXECUTIONS founded directly on his default; it is not enough that the party has proceeded by attachment against the sheriff for his default in not returning the execution, and that a judgment has been recovered in the name of the people against him, on the recognizance given by him for his appearance on the return of the attachment. The mode of proceeding in prosecuting on the official bonds of sheriffs, has been already fully treated of.5 Perpetual sta. of execution. Sheriff's poundage. The court, to prevent fraud or great injustice, will order a perpetual stay of an execution, provided the facts are made clearly to appear to the court, so that complete justice can be done to all the parties concerned; otherwise the execution may be stayed for a definite time, so as to give the party an opportunity of applying to the court of chancery for relief." For executing the writ, whether a fieri facias or capias ad satisfaciendum, the sheriff is entitled to his poundage, according to the following provisions of the revised statutes : "For serving an attachment for the payment of money, or an execution for the collection of money, or a warrant for the same purpose, issued by the comptroller, or by any county treasurer, for collecting the sum of two hundred and fifty dollars, or less, two cents and five mills per dollar; and for every dollar collected, more than two hundred and fifty, one cent and two and a half mills.""7 If the sheriff levy under a fieri facias, he is entitled to poundage, though the parties compromise before he sells any of the defendant's goods; or though the execution be afterwards set aside for irregularity: so the sheriff is entitled to poundage, upon a capias ad satisfaciendum, though the defendant go to prison without satisfying the plaintiff, 10 or be discharged for an irregularity in the execution.11 And if the sheriff, having taken the defendant on one writ, detain him on another, he is entitled to poundage on both.12 But he is entitled to no fees for the arrest of a person privileged from arrest:15 and it seems that he is not entitled to poundage, if the money be paid to him without any levy; and he cannot maintain an action for the expense incurred in seizing and keeping possession of goods under a fieri facias, at the request of the party suing out the writ, although they are not sold, on account of his refusing to give an indemnity against the claims of third persons.14 For the poundage he is entitled to, the sheriff may maintain an action of debt on the statute, against the party, notwithstanding it is allowed by the statute to be collected by the execution;101 and accordingly, where the sheriff levied under a fieri facias, and received the money, and afterwards the judgment and execution being set aside for irregularity, and the money ordered to be returned, paid it back, with the assent of the plaintiff, the court held that the statute did not take away his remedy by action of debt against the plaintiff for his poundage. 15 We have already seen that the attorney is liable to the sheriff for his fees.16 EXECUTIONS "13 Johns. Rep. 378. 5 Ib. 252. 12 Tidd. Pract. 1084. 13 10 Johns. Rep. 93. 143 Camp. Rep. 374. 1912 R. St. 645. 15 4 Maule & Selw. 256. This was ruled under the 43 Geo. III. c. 16 Ante, Vol. 1. p. 99, SECTION II. OF THE FIERI FACIAS AS REGARDS PERSONAL PROPERTY, AND THE Form of the fi. fa. Must agree with the judgment. Relates to its teste, The fieri facias, as we have seen, is a common law execution, and is directed to the sheriff of the county where the action is laid,1 commanding him, that of the goods and chattels of the person against whom it is issued in his county, he cause to be made the sum recovered; and (in order that it may authorise the sale of real estate, commanding him) that if sufficient goods and chattels cannot be found, that then he cause the amount of such judgment to be made of the real estate of the person against whom the judgment was rendered, which he had at the time of docketing the judgment, specifying the time, or at any time afterwards, in whose hands soever the same may be ;18 and concluding with a command that the sheriff have the monies before the justices of the supreme court at the return day, to render them to the party recovering, together with the writ; after which follows the teste, &c. In point of form, the fieri facias should invariably pursue the judgment: therefore it has been holden, that a special execution is not warranted by a general judgment.19 And where a fieri facias is sued out after a scire facias on a judgment, the fieri facias must set out the award of execution on the scire facias, as well as the original judgment; even, as it seems, though the scire facias was sued out unnecessarily.20 The fieri facias having relation to its teste, at common law bound the goods from that time; so that if the defendant had 17 Tidd. Pract. 1036. 18 2 R. St. 367. 8. 24. 19 1 T. R. 80. 6 Ib. 525. 7 Ib. 27. 20 1 Bing. 133. Tidd. Pract. 1036. AS TO GOODS. afterwards sold the goods, though bona fide, and for a valua- FIERI FACIAS ble consideration, they were still liable to be taken on execution, into whose hands soever they came.21 This relation having been productive of great mischief to purchasers, was taken away by statute. It is declared, that "whenever an but is a lien execution shall be issued against the property of any person, to the sheriff. his goods and chattels, situated within the jurisdiction of the officer to whom such execution shall be delivered, shall be bound only from the time of the delivery of the same to be executed."22 only from it delivery does not perty. regulated by Although the goods are bound by the delivery of the exe- The lien cution to the sheriff,23 yet neither before the statute nor since, alter the prois the property in them altered, but continues in the defendant until execution executed.24 The meaning of the words, that Lien how "goods and chattels shall be bound only from the time of the statute. delivery," would seem to be, taken in connection with the subsequent provision, 101 that after the writ is so delivered, if the defendant make an assignment of his goods to a purchaser with notice, the sheriff may take them in execution.25 So, before the revision, it was held that he might levy on goods which had been delivered by an agent of the defendant, who, however, had no authority to make such delivery, to a third person, to whom the defendant was indebted, in payment of his debt.26 Before the revision of the statutes, bona fide purchasers, without notice of the execution, were only relieved by statute, against the rules of the common law, so far as that the effect of the relation of the execution to its teste was taken away, and that it was declared to bind the goods only from its delivery to the sheriff; but now, it is provided, that "the title of a Cro. Eliz. 174. 440. Cro. Car. 149. 2 Vent. 218. 7 T. R. 21, 2. but see 1 Lev. Rep. 174. 22 2 R. St. 365. s. 13. 25 Ld. Raym. 252. 4 East. Rep. 523. 539, 540. 2 Johns. Ch. Rep. 23 8 Johns. Rep. 446. 17 Ib. 116. 284. 16 Johns. Rep. 287. 2 Eq. 19 Ib. 363. Cas. Abr. 381. 26 18 Johns. Rep. 363. |