the lien on the lands is from the rendition of the judgment, and the right to execution of lands in the tenure of the heir, grows out of the statute of 5 Geo.2.ch. 7, in connexion with that lien. IV. WHEN RETURNABLE. TURNER V. WALKER, Dec. T. 1831, 3 Gill & Johns. Md. Rep. p. 385. as must be Per Cur. Buchanan, C. J. A fieri facias is always made re- A fieri faci turnable in term time, and cannot be otherwise legally return- made retur ed. And if it be returned to the clerk's office, at any time du- nable in ring the recess, it is in law wholly void, and as no return, and a ca. sa. cannot legally be founded upon it. The same principle applies to a venditioni exponas. V. OF THE RETURN. terin time. 1. BERRY V. GRIFFITH, June T. 1828. 2 Har. & Gill. Md. Rep. 337. 344. The return ers, dé Per Cur. Buchanan, C. J. It is not true, that lands taken should regu in execution, must be described in the schedule and advertise- larly, for the security ment of sale, with technical minuteness. If it were so, it would of purchas perhaps be found that there are few titles in the state, acquired scribe the by purchase at sheriff's sale, that might not be shaken. The premises with precis sheriff cannot sell what has not been levied upon, but a general description in the schedule and advertisement of sale is suffi- enough if the descrip cient. The return should regularly, for the security of purchas- tion be such ers, describe the premises with precision; but it is enough if the description be such as that the property sold may be clearly may be identified. ion; but it is as that the property clearly iden tified. 2. CLARK V. BELMEAR, Dec. T. 1829, 1 Gill & Johns. Md. Rep. riff had levi part of a tract of land Per Cur. Martin, J. The description of the property con- that the she tained in the schedule returned by the sheriff to the fieri facias, ed upon was, "part of the Burgess' Delight, part of Clarke's Fancy, and part of Hickory Thicket, supposed to contain 275 acres." Did called B. the case rest upon this return alone, we should not consider it supposed to open for discussion. It has been solemnly determined by many &c. is defec contain," tive. A return to a fi fi. of levied on certain sne cified arti cles, ogeth er with all the defend ani's person adjudications of this court, that such a return is not sufficient; that it would be quashed on motion, and would be unavailable in ejectment to prove title in the plaintiff; Williamson v. Perkins 1 Har. & Johns. 449; Hammond v. Norris, 2 Har. & Johns. 147; Fitzhugh v. Hellen, 3 Har. & Johns. 206; Fenwick v. Floyd, 1 Har. & Gill. 172; Thomas v. Turvey, 2 Har. & Gill, 435. 3. BEALE'S EX'RS, V. THE COMMONWEALTH, for the use of Wor- duct. This was an action on a recognizance, brought by the plaintiffs below, the defendants in error, against the executors of Beale, one of the sureties of the coroner, for official misconThe following return to a fi. fa. was made by the coroner: "levied on a stove, drum and pipe, and a set of chairs and taal property, ble, together with the whole of the defendant's personal properThe defendants in the court below offered to prove the of a levy to value of the articles specifically levied upon, contending that the the value of coroner was liable, if at all, only to that amount; but the court and ina ne rejected this evidence, and the defendants excepted. is prima fa cie evidence the debt; tion against the surety it coro ner, for the dant in the ty." Per Cur. Duncan, J. The return of, 'levied,' on the small, the car stated articles, with the sweeping return, together with all the croae's re defendant's personal property,' is prima facia, evidence of a levy fusal to sel. the goods of the value of the debt, and would cast on the defendant the of the defen burthen of proving the whole value of the defendant's goods. execution,it it would open a wide door for collusion, if the sheriff, on a fieri the facias for 5000 dollars, were permitted to return, levied on a ant the bur gridiron and all the defendant's store of goods,' without specifithen of prov ing the val cation, and when sued for not making the debt, say, 'I will prove the value of the gridiron, and am not accountable for more.' the goods of The court properly decided, that by this return the coroner was the defend fixed for the whole amount of the debt, unless he showed what casts upon ue of the whole of ant in exe cution; and other personal estate the defendant had, and its amount. he will not the v due of alone. And be permit if a sheriff will not specify in his return, what he has levied on, ted to prove but makes a return of 'levied on all the defendant's goods,' I the goods would consider it as a return of 'levied to the value of the debt,' specified in the return so far at least as to cast on him the burthen of proof, what the goods were, and the value. If this is not done, it affords strong temptation, and an easy mode of successful collusion between the sheriff and the defendant. Here the defendant offered only proof of the specific articles and their value, without offering any evidence of the other personal property of the defendant, and its value, which was justly overruled by the court. 4. A sheriff re SCOTT V. BRUCE, June T. 1828, 2 Har. and Gill. Md. Rep. 262. The appellant issued a fi. fa. directed to the sheriff of the county, against the appellee, on a judgment rendered in favorrred a fi. of the appellant. The following return was made by the she flad per riff: "Laid per schedule, and property sold to Mrs. Henrietta Bruce, for $750. Re-sold to Warren Hobert for $725, and sale not complied with, and of course on hand. schedule, ty sold to D for $750; re sold to H for $725, and sale not with, and of course on that the offi cer was jus tified in ic HUGH Cox, Sheriff." The schedule referred to was an appraisement of sundry par- compled cels of land taken by the sheriff, under the fi. fa. The plaintiff moved the court that the return aforesaid might be quashed and set aside, and that the sheriff be compelled to make a proper return. 1st, because it is argumentative and superfluous. 2d, that turning upon the face of the return of the sheriff, it appears that he has them in a not executed his duty in a lawful manner. 3d, that the return, if received, will have a tendency to defeat the plaintiff's remedy against the sheriff for his improper conduct. Motion overruled terms. and appeal to this court. nothing wrong in the Per Cur. Earle, J. We can perceive decision of the court below in this case. property of the defendant under the fieri facias directed to him, and sold it twice, although unluckily to a person each time, who would not or could not comply, by paying the money bid for it. The officer might well return these facts, and if they were according to the truth of the case, which prima facie must be presumed, he is certainly justified in returning them in a special manner, instead of returning in general terms, that the property was unsold, and on hand, for the want of buyers. How can the plaintiff who made this motion, be affected by this mode of return? If he wishes to proceed further, it will afford as good ground for his venditioni exponas, as if it had been expressed in the more general language. A distinguished judge in the State of Pennsylvania advised this kind of return, which would hardly have been done, if it would have endangered the plaintiff's demand, or proved in any way inconvenient to him. In Zantzin ger v. Pole, 1 Dall. 419, we find Chief Justice M'Keane stating, that if the property is not paid for after the sale, the return should be that "the premises were knocked down to A. B. for so much, that the said A. B. has not paid the purchase money, and that, therefore, the premises remained unsold." But there is no necessity to recur to authority in this case. Judgment affirmed. special man ver, ins ead of returning general A fi. fa. is void for want of a re 5. WEST V. HUGHES ET AL. May T. 1800, 1 Har. and Johns. Md. Per Cur. Chase, C. J. The court are of opinion, that the turn day. fieri facias issued, is void for want of a return day, and that no title can be made under the sale made in pursuance thereof. A sheriff has a right, to correct his return to a fi. fa. 6. BERRY V. GRIFFITH, June T. 1828, 2 Har. and Gill, Md Rep. 337, 342. Per. Cur. Buchanan C. J. It will not be denied, that a shein due time, riff has a right in due time, to correct his return to a fieri facias, so as to make it conform to the truth of the fact, whatever that may be, and to give it effect and legal operation; and, indeed, it is his duty to do so, not only as respects himself, but all others concerned, and purchasers not less than others, who commit themselves to the accuracy and integrity of sheriffs. Where goods taken under a fi. fa. have been sold due on the ca. sa. can the residue, 7. TURNER V. WALKER, Dec. T. 1831, 3 Gill & Johns. Md. Rep. 384, 385. Per Cur. Buchanan, C. J. Where goods taken under a fi. fa. have been sold, for a part of the amount due on the judgment, a ca. sa. cannot be legally issued for the residue, until the for a part of sheriff has made a final return of the fi. fa. showing what had the amount been done with the property. For as the second writ is groundjudgment, a ed on the first, and the return thereof, and must recite the pronot be legal ceedings thereon, the first must be returned before the second ly issued for can issue. And it is proper and necessary to the security of the until the she defendant, that it should be returned in term time in order that have a day in court, to protect his rights. If it was may otherwise, it would be in the power of a sheriff, or of a plaintiff by collusion with the sheriff, to practice great abuses. But when there is a return of the fi. fa. by which it is seen, what has been done with the property seized under it, there is someproperty thing to control the sheriff, and to restrict the plaintiff to the amount for which he is entitled to have the body, by showing how much he has already received. riff has made a final return of the fi. fa. showing what has been done with the A sale of personal 8. COWDEN V. BRADY, ET AL. Sept. T. 1822, 8 Sergt. & Rawle's Tilghman, C. J. A fieri facias alone is authority for selling good, tho' not return ed. goods, without waiting for a venditioni exponas. And a sale of property is personal property is good, though the fieri facias be not return- the fi fa. be ed. But not so with land. An inquest must be held, to inquire whether the rents and profits will be sufficient to satisfy the debt in seven years; and if the jury find in the affirmative, the land cannot be sold. But if the jury condemn the land, the sheriff must return his writ, together with the inquisition; and thereupon a venditioni exponas issues, without which he has no power to sell 9. RUDD V. JOHNSON, Spring T. 1824, 5 Lit. Ky. Rep. 19. In this case the sheriff received money on a fi. fa. after the return day thereof. A sheriff cannot legal ly receive money on the return Per Cur. Boyle, C. J. As a general rule, it is perfectly clear, an execu that a sheriff can have no authority, in virtue of an execution, tion, after to receive money after the return day of the execution; nor can day thereof. he, in his official character, and his securities, be made liable for money so received. Where the sheriff before the return day takes property, he may no doubt sell the property afterwards, upon the ground that the authority to take and sell property, is entire, and he who begins its execution may finish it; but this principle is inapplicable to the present case. The receipt of a part of the money before the return day of the execution was complete in itself, and the receipt of the residue afterwards, had no dependence upon it, or connexion with it, and most clearly the former could have given to the sheriff no authority to do the latter, no more than the seizure and sale of property, whereby a part of the money was made before the return day of an execution, could authorize the sheriff to seize and sell other property after the return day, to make the residue of the money. OPEN VI. OF THE SHERIFF'S POWER TO BRAEK OPEN 1. BORDEN V. M'KINNIE, June T. 1826, 4 Hawk's N. Ca. Rep. 281. S. P. STATE V. ARMFIELD AND WRIGHT, 3 ante, vol. 2, p. 303. A sheriff Taylor, C. J. A sheriff cannot break open an outer door to cannot execute a fi. fa. against chattels.* も break open an outer door to exe * But an inner door may be broken open; Rex v. Bird, 2 Show. 87. And by cutea fi. fa. the case of Hutchinson v. Birch, 4 Taun. 619; without demanding admission. |