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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." ♡ 41. It shall not be lawful for any sheriff or other officer, to levy 1821–(16)
Sec. 1. 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 ihe crop not to be le
vied on crop is gathered.
until gather. § 42. The following articles shall be retained by and for the use of edizioa 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
empted 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 accontrements of the militia are also exempt from execution or other process. See “ Militia," Chap. 4.
5. Right OF PROPERTY EXECUTED.
§ 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 Ser. 16.he 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 engine the Property seized; which, if the plaintiff, bis attorney or agent, refuses sheriff niay
demand in 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. 44. When the sheriff shall return on any execution, " that there 1812–(19)
» Sec. 1. is no property to be found in his county belonging to the defendant,'
How to proand it shall be suggested by the plaintiff that the defendant has pro- ceed in case
of fraudu perty in his own right, but hath fraudulently conveyed the same, for lent convey. the purpose of defrauding his creditor, or to avoid the payment of the ance of de
fendant's 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 relurn of the scire facias executed as in other cases, au issue sball 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. § 45. Where any sheriff shall levy execution on property claimed 1812(16)
Sec. 7. 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
make oath 1 The same restriction applies to crops raised on rented lands.-See “Rent.” and give
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, 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 en
tered up, and execution issued against such claimant: And provided Burthen of also, That the burthen of the proof shall be upon the plaintiff in the proof to lie execution, and it shall be the duty of the sheriff to return the property on plaintiff in execution. 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
forth with to return the bond to the clerk'e office of the superior court, Bond to have which bond shall have the force and effect of a judgment, and execu. force of judg
udg. tion may be awarded by the court against all or any of the obligors, ment.
having ten days' notice thereof. 1821—(38) § 46. In all trials of the right of property as aforesaid, when the Sec.mov ne 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 not exceed ing 15 per
'. damages as the case may require, not exceeding fifteen per cent. on
the amount of the execution. 1b. Sec. 4. § 47. Whenever any claim to property shall be made, the same Claim not shall not be dismissed, discontinued, or withdrawn, but by the coldismissed but by con- sent of the opposite party. sent of oppo. site party.
$ 48. In all cases where property shall be taken by virtue of an 1822–(9) execution or attachment, when the sum claimed doth not exceed fitiy Sec. 1. When the dollars, the person or persons claiming the same, and not being a parclaim does ty to the suit, may apply to some justice of the peace for a venire not exceed 50 dollars, facias, directed to the constable or other officer, io summon seren Justice to is 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 claim. ant to make oath or affirmation of his right to the property ; and il
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 in other cases, any law to the contrary not withstanding."
(1) The bond with security of one of several claimants, is sufficient to authorise the trial of the right of property. Marrs & Co. v. Gantt, Min. Rq. 406
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- fb. Sec. 2. pointed, shall take the following oath, viz: “ We, and each of us, do Oath of jury. 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 coin-Constable plete the nuinber 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
$ 50. Where it may appear to the satisfaction of the jury, that the 1b. Sec. 3. claim was set up for the purpose of vexation or delay, the jury shall suss dama
Jury may asassess the damage not exceeding fifteen per cent. on the amount of ges. the plaintiff's claim.
$ 51. If any person being returned as a juror, to try the right of 16. 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 may be hned 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 16. 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.
$ 53. Whenever any sheriff, coroner, or constable takes from the 1897—(18) plaintiff in any execution, a bond indemnifying him for levying or
Sheriff may selling property, the title to which is doubtful or disputed, if suit is give notice
to obligors in instituted against him, or against any of his deputies for making such indemin levy or sale, he may give notice to the principal and securities in 'said bond to deboud, 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
against them 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- 1b. Sec. 2. ligors in the bond of indemnity, at least sixty days before the trial of si ty days any soit against said officers.
before trial. $ 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, s 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 Bood pay.
able to plaintift.
tion from an
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. Ib. Sec. 2. $ 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.
O the county. where the levy shall have been made, and it shall be the perty to be 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. Ib. Sec. 3. $57. It shall be the duty of the jury, in all cases, when they shall Jury to find the value of
not 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 it'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 securi
ties, 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. 58. If property shall be levied on by a constable by virtue of an exProceedings onuforte ingreecution 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 bond under 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 of another 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. Ib. Sec. 5.
$ 59. If property so levied on shall be claimed by a third person, Trial of the 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 ed in such
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 ubedience 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 11. Sec. 6. to the justice who issued it, with a return endorsed, showing the lery Trial of right empt 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 from execu tion. other property than that levied on and claimed, if it be found; but the
not to ex
supersedeas, by appeal or writ of error, shall only apply to the property so levied on and claimed.
$61. So much of the law now in force as requires two bonds to be 15. Sec. 7. taken for the trial of the right of property, is hereby repealed: Pro-Bond neces. 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 a sheriff or other officer taking such property in execution.
Release of damages by claimant.
6. DELIVERY BONDS.
$ 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 she marshal of a corporation, coroner, or constable, or securities, or their rifl, &c. for
money reheirs, 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."
63. If a forthcoming bond be quashed as faulty, the sheriff taking Ib. Sec. 30. the same shall be at all times liable for damages to the party injured, for insura or his representatives.
ficient bond. $ 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
• remain with bond to the creditor or creditors, with good and sufficient security, in the defen. the penalty of double the amount due by such execution, including all dant upon 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.
965. 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 others fees. any commissions on any execution, unless the money be made, or property actually sold. $ 66. On the forfeiture of any bond given to any sheriff or coroner, 1829–(14)
Sec. 8. for the forthcoming of property by him levied on, by virtue of an exe-Sheriir 10 re. cution, 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 is. and 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) and on any such execution, no security of any kind shall be taken ; Sheriit failand the clerk issuing the same, shall endorse the same thereon, and ing, liable to
motion. the officer to whom the same may be directed, shall act according.
ed bond in
hon he tolon. Sec. 4.)