the in the year of our Lord, before day of me, E. F., sheriff in the county aforesaid, by virtue of a writ to me directed, and to this inquisition annexed, and by the oaths of A. B. C. &c., good and lawful men of said county, 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 said 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 own demesne, 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 dollars; 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 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." isfaciendum. "By virtue of this writ to me directed, I have taken the within Return of a named A. B., whose body before the judge within named, at the day capias ad sat. and place within contained, I have ready to satisfy C. D., of the debt and damages within mentioned." is not found within my county." Or:-"The within named A. B., executed, issue. §2. When any execution shall issue, and the party at whose suit If the first the same is issued, shall afterward desire to take out another writ of writ be not execution, at his own proper cost and charges, the clerk may issue another may 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 defendants, execution thereon shall issue, as if it were against one defendant, and not otherwise. elegit, in case §3. If any tenant by elegit, be evicted of his title in the lands, Remedy of tenements, or hereditaments, which he holds by virtue of any extent the tenant by thereof, by judgment had against him otherwise than by his own fraud of eviction. or default, before satisfaction shall be made him for his debt, or damages and costs, he 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 Where lands omitted out costs, as shall appear to remain unpaid, as if no execution had been theretofore issued. §4. When any judgment or recognizance shall be extended, have been the same shall not be avoided or delayed, by occasion that any part of of the extent, the lands or tenements extendible, are or shall be omitted out of such judgments, &c., not to be extent, saving always to the party and parties whose lands shall be void. extended, his and their heirs, executors, and assigns, his and their remedy for contribution against such person and persons, whose lands Proviso, as to are or shall be omitted out of such extent, from time to time: Provi infant heirs ded nevertheless, That this act, or anything therein contained, shall not be construed to give any extent or contribution against any heir or devisee, within the age of twenty-one years, during such minority of such heir or devisee, for or in respect of any lands to such heir or devisee descended or devised, further or otherwise than might have been made before the making of this act. and devisees. Proceedings in case of the cution. § 5. If any person being in prison, charged in execution, shall hap death of the pen to die in execution, the party or parties at whose suit, or to whom party in exe- such person shall stand charged in execution for any debt or damages recorded, 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: 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 of 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 sold 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. privilege. Discharge by § 6. If any person taken in execution, be delivered by 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. On a debtor's yond the ju the court. of § 7. When judgment shall be obtained in any court of record within removal be- this territory, for any debt or damages, and the person against whom risdiction of such judgment shall be obtained, shall remove himself or 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 a writ of fieri facias, or capias ad satisfaciendum, or any other legal or proper writ of execution, or attachment, for the nonperformance a decree in chancery, (as the case may require,) in the form, and under the teste hereinbefore prescribed, and to direct the same to the sheriff of any county, or marshal of any corporation within this territory, 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 hereinbefore prescribed and directed. Ib. Sec. 12. be taken, if § 8. No sheriff or other officer, to whom any writ of fieri facias Slaves not to shall be directed, shall take in execution any slave or slaves, unless other proper- the debt and costs mentioned in such fieri facias, shall amount to the unless exeси- sum of one hundred dollars: Provided, There be shown to such tion amt's. to sheriff or officer, by the defendant or any other person, sufficient 100 dollars. other goods and chattels, of such defendant's, within the county of such ty be shown, sheriff or officer, upon which he may levy the debt and costs mentioned in such fieri facias. Names of slaves sold to 9. Where any slave or slaves shall be taken in execution, and Ib. Sec. 13. sold, the names of such slaves shall be certified on the back of the execution, and returned to, and recorded among the records of the be certified court where such execution shall issue. on execution. If goods remain unsold, exponas may § 10. If the goods taken by any sheriff, or other officer, or any Ib. Sec. 14. part thereof shall remain in his hands unsold, he shall make return accordingly; and thereupon the clerk of the court from whence the a venditioni execution issued, may, and shall, if required, issue a venditioni expo- issue. nas, to such sheriff or other officer directed, whereupon the like proceedings shall be had, as might and ought to have been had on the first execution; which writ of venditioni exponas shall be in the following form: Art. 5, Sec. "The State of Alabama,a &c. greeting: We command you that you [a Con. Ala. expose to sale those goods and chattels of A. B. to the value of which according to our command, you have Form. taken, and which remain in your hands unsold, as you have certified to our judge 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. Sheriff to taken in exe § 11. When any sheriff or other officer shall serve any writ of ex- Ib. Sec. 15. ecution on slaves, horses, or other live stock, and the same shall not provide for be immediately restored to the debtor on his executing a forthcoming slaves, &c., bond,' it shall be lawful for such officers, and they are hereby re- cution. quired to provide sufficient sustenance for the support of such slaves or live stock, until such slaves or stock be sold, or otherwise legally discharged from such execution and upon the return of any execution, the court shall, upon motion of the officer serving the same, settle and Court to al adjust what such officer shall be allowed for his expenses incurred by supporting such slaves or stock; and the said officer shall be allowed to retain the same out of the money arising from the sale of the said slaves or stock. : low necessary expenses. release his vering pro be insuffici. § 12. When any writ of capias ad satisfaciendum shall be levied b. Sec. 18. on any debtor, it shall be lawful for such debtor to tender to the sheriff Debtor may or other officer serving the same, slaves or personal property to the body by delivalue of the debt and costs, for which such execution may be issued; perty. 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 If the properproperty so tendered, shall not be sufficient to satisfy the debt or ty tendered damages, and costs, or shall be under any lien or incumbrance, so that ent, or inthe whole cannot be sold, a new capias ad satisfaciendum, or fieri new execu facias, at the option of the plaintiff, shall issue for any balance and tion may the clerk of the court from which such execution originally issued, shall, upon the return of the sheriff of the insufficiency or incumbrance 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 Restriction. case of a fieri facias issued in consequence of such return, to avail himself of the privileges of this act. 1 See the 6th division of this title. cumbered, a issue. Ib. Sec. 20. amount of debt and § 13. Wheresoever, on a sale made under any execution, the amount of such sale shall exceed the principal, interest, and costs, the sheriff sales exceeds or other officer, shall pay such excess or surplus to the debtor, his excosts, the re- ecutors, administrators, or agent; and if any sheriff or other officer sidue to be 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, each and every of them, be liable Penalty, &c. to the like penalty and judgment in favor of the said debtor, as is prescribed and directed by law, in favor of the plaintiff against the sheriff, for not paying the principal, interest and costs, levied on an exe paid to the debtor. Ib. Sec. 21. cution. § 14. When any sheriff or other officer, under any execution, shall junction is receive the whole or any part of the money for which the said execuobtained, the tion was issued, and the person against whom such execution may be returned have issued, his executors or administrators, shall obtain an injunction to the debtor. to such execution, or any part of the money mentioned therein, before money shall Ib. Sec. 34. after a final decree in chancery. [a Con. Ala. Art. 5, Sec. 17.] the money received by such sheriff or other 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 the person or persons against whom such execu tion issued, his or their executors, administrators, or agent, the money so received, or such part thereof as may be enjoined to the person having a right to demand the same; such sheriff or other officer, and their securities, his and their executors and administrators, and every of them, shall be liable to the like penalty and judgment in favor of the person, his executors or administrators, by whom the said injunction is obtained, as is directed by law in favor of the plaintiff, against the sheriff, for not paying money levied on an execution. § 15. After obtaining a final decree for lands, slaves, or money, or Proceedings 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 possessionem, 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 state of Alabama,a 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 day thereof, by the of ficer 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 person from proceeding to carry any order or decree in chancery into execution, in any manner of which he might have availed himself, before the passing of this act. Ib. Sec. 38. : § 15. In all cases where the writ of elegit shall be sued out, the On elegit, de defendant or defendants shall have the election of the moiety of his, elect lands to her, or their lands to be extended. fendant may be taken. 1807-(22) Preamble. Whereas divers persons residing in other states, governments, or dominions, possessed of lands, tenements, and hereditaments, in this territory, may have contracted, or may contract debts with the inhabi tants of this territory, without having personal estate in the same, to satisfy such debts and damages: manner residents are § 17. Be it therefore enacted, &c. That all process which heretofore sec. 1. issued against goods and chattels, shall hereafter issue against lands In what and tenements, in the same manner as against goods and chattels in the lands of noncase of foreigners and non-residents; and the sheriff, upon such at- subject to extachment, execution or other process, shall proceed to levy the same ecution. upon the goods and chattels of the defendant, in the first instance, if any there be; but if to the best of his knowledge, there be no such goods and chattels, or not sufficient to answer the plaintiff's demand, he shall execute the same upon the lands and tenements of such nonresident, to the amount of the whole debt; or of so much as may remain more than the value of the goods and chattels so found; and such lands and tenements shall be liable, under the restrictions aforesaid, to be sold to satisfy the judgment of the plaintiff; and he shall sell the same at the most public place in his county, after his having given at least forty days notice, by advertisement in the public gazettes, before the day of sale. Sec. 9. Lands sub tion from a § 18. Hereafter, lands, tenements, and hereditaments shall be sub- 1812—(15) ject to the payment of all judgments or decrees of any court of record within this territory, and the clerk of such court shall frame the exe-ject to execucution accordingly; and in all cases, the sheriff or other officer levy-court of reing such execution on real estate, shall give at least thirty days notice cord. of the time of such sale; and the sale shall be at the court-house of the county in which such land may lie: Provided, 'The courts holden by justices of the peace, shall not be deemed courts of record, within the meaning and provisions of this act; and the sheriff or other officer selling any real estate, shall make a title to the purchaser, which title shall vest in the purchaser, all the right, title, and interest, which the defendant had in and to such real estate, either in law or equity.1 § 19. It shall be the duty of every sheriff, if he has levied any ex- Ib. Sec. 10. ecution on property, and advertised the same agreeably to law, if the debtor or debtors shall, on the day of sale, produce to the sheriff other property, in property in lieu thereof, to cause the property so produced, to be levied upon. offered for sale, in the same manner as if it had been originally levied upon. Sheriff may accept other lieu of that Sec. 3. 20. The clerks of the several courts of this territory, shall endorse 1815 (12) on all executions by them issued, the several items contained in the Clerk to en bill of costs, in intelligible words and figures. (1) dorse bill of costs on exe 1818-(14) Sec. 4. cation. Sheriff shall § 21. All executions required to be issued on a return in vacation, cution. shall bear teste on the return day of the last execution. § 22. It shall be the duty of the sheriffs of the counties throughout Teste in va the state, respectively, whenever any execution shall be placed in 1819-(14) their hands, to proceed to levy the same, and make sale of the Sec. 16. property thus levied on, in such times as by law is directed, and shall levy e ecu pay the amount obtained by such sale, to the party or parties entitled tions and pay to the same, on the application of such party or parties, or within ten ney. days thereafter, under the penalty of forfeiting six per centum per month, for every month such sheriff shall fail to pay over such money, collected as aforesaid. 1 The equitable title to real estate, can be made subject to the payment of debts only by suit in chancery.-See "Judicial proceedings in Chancery," § 12,-also § 69 of this title. (1) An execution cannot be quashed because more costs are taxed than are due. The error may be corrected on motion to re-tax.—Anon. 2 Stewt. Rep. 228. over the mo Penalty. |
